TEAM CODE:C017

BEFORE THE HON’BLE SUPREME COURT

OF

INDIA

IN THE MATTER, OF

DHORMIR DOST………………………………….....................PETITIONER

VERSUS

UNION OF INDIA……………………………....………………………...RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT

JUSTICE T. RAMCHANDRAN MEMORIAL EVER ROLLING TROPHY

(FEBRUARY 2019)
 TABLE OF CONTENTS

INDEX OF ABBREVIATIONS……………………………………………………………..02

INDEX OF AUTHORITIES ………………………………………………………………02-03

LIST OF BOOKS………………………………………………………………………02

LIST OF STATUTES…………………………………………………………………….03

WEB RESOURCES……………………………………………………………………….03

STATEMENT OF JURISDICTION……………………………………………………………04

STATEMENT OF FACTS………………………………………………………………………..05-

06

ISSUES INVOLVED………………………………………………………………………………..07

SUMMARY OF ARGUMENTS……………………………………………………………………..08

ARGUMENTS ADVANCED……………………………………………………………09-14

PRAYER……………………………………………………………………………………..15

INDEX OF ABBREVIATIONS

AIR ALL INDIA REPORT

SCR SUPREME COURT
REPORTER

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SCC SUPREME COURT
CASES
NDPS NARCOTICS, DRUGS
AND PSYCHOTROPIC
SUBSTANCES ACT, 1985

LIST OF BOOKS
1. Ratanlal & Dhirajlal Indian Evidence Act, 1872 7th Edition
2. The Constitutional Law of India Shriniwas Gupta
LIST OF AUTHORITIES

1. Union of India v T R Verma, (1957)AIR

882 SCR 499

2. Satish Chandra v Registrar of Cooperative

Socities,(1994) 3 SCC 332
3, Luxmi Raj Shetty v State of Tamil
Nadu,AIR 1988 3 SCR 706
4. Union of India v Strohan, SCC 2008 3
CRI 620
5. Union of India v Strohan, SCC 2008 3
CRI 620
6. Balbir Singh v State of Punjab, AIR 1994
3 SCC1872
7. Abdul Rashid Ibrahim Mansuri v State of
Gujarat, 2000 1 SCR 542
8. Beckodan Abdul Rahiman v. State of
Kerala, 2002 4 SCC 229
9. K.S Puttaswamy v Union of India, 2017 1
SCC 10
10 Mohd Hanif Qureshi v State of Bihar,AIR
. 1958 SCR 629
11 Santokh Singh v. Delhi Administration,
. AIR 1973 SC 1094
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 LIST OF STATUTES AND REGULATIONS

1. The Indian Evidence Act, 1872

2. The Narcotics Drugs and Psychotropic Substances Prohibition Act
3. Income Tax Act, 1961
4. Information Technology Act, 2000

WEB RESOURCES

1. Hein online (https://home.heinonline.org)

2. Lexis Nexis (https://www.lexisnexis.com/in/legal)
3. Manupatra Online Resources (https://www.manupatra.co.in)
4. SCC Online (https://www.scconline.com)
5. Westlaw India (https://login.westlawindia.com)

Statement of Jurisdiction :

The Petitioners in the case, have filed a petition under Article 32 of The Constitution of India.

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 STATEMENT OF FACTS

1. On 3-1-2018, Sham Kiran assumed the charge of City Commissioner of Police of

Dhormir which is the Capital city of Karmasthan which is a Union Territory. Dhormir
City News which is the newspaper of the capital city of Dhormir on 12-5-2018 making
allegations that a team of Policemen lead by the City Commissioner of Police raided into
a Pride Party being organized at one Hotel Jeena Plaza by an NGO Dhormir Dost.
2. The report of the Newspaper mentions that the Police entered the hotel at about 12:00am
and according to the Newspaper report allegedly behaved in an improper way.
3. In the Newspaper report one Ms. Jayabhai alleges that the Police had searched the
attendees by stripping them in the smoking zone and asking them to strip in groups
comprising five members each and alleged that the Police behaved in an inappropriate
way. The Police had assigned lady officers to search Transgenders. All this had
happened when sec. 377 of IPC was an unnatural offence.
4. According to the same Newspaper’s news item, Tharun Kumar an advocate who when
asked the Police Officers got a reply that they are from the Narcotics Bureau and upon
some further enquiry found that some of them are from Ram Nagar and Sanadrin Police
Stations which the Advocate claims as not to have the proper jurisdictions. But as the
operation was led by the Police Commissioner who has all the Police Stations under his
power within his Jurisdiction. The DCN also managed to talk to a top official of The
Narcotics Bureau who chose to remain anonymous according to whom no raid was
conducted at Hotel Ramada, whereas, the hotel wherein the alleged improper behavior
had taken place was Hotel Jeena Plaza thus showing a discrepancy in the claims.
5. On 16-8-2018 Dhormir Dost had filed a petition in the Supreme Court regarding
compensation and alleging violation of fundamental rights. On 26-12-2018, four months
after the petition for the alleged inappropriate behavior petition was filed in the Supreme
Court the Income Tax officials raid the office of Dhormir Dost and seize 7 computers
without any ruckus.

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6. The Petitioner, Dhomir Dost on 03-01-2019 files a case claiming that the act of the
Income Tax Department to be Mala Fide based on the tenuous link between The Income
Tax Commissioner and the Police Commissioner that both of them are brothers. Apart
from that, the petitioner also files a petition contending that Order S.O. 6227(E) of Cyber
and Information Division of Ministry of Home affairs dated 20-12-2018 ,Rule 4 of the
Information Technology (Procedure and Safeguards for Interception, Monitoring and
Decryption of Information ) Rules 2009 and Section 69(1) of Information Technology
Act 2000 a reasonable intrusion on Fundamental Rights.

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STATEMENT OF ISSUES

1.Whether the petition under Article 32 is maintainable.

2. Whether Newspaper report can be used as Evidence.

3. Whether the Raids conducted by the Police Commissioner and the Income Tax
officals are just.

4. Whether Order S.O. 6227(E) of Cyber and Information Division of Ministry of

Home affairs dated 20-12-2018 ,Rule 4 of the Information Technology (Procedure and
Safeguards for Interception, Monitoring and Decryption of Information ) Rules 2009 and
Section 69(1) of Information Technology Act 2000 a reasonable intrusion on Fundamental
Rights.

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 SUMMARY OF ARGUMENTS

1. Whether the Petition under Article 32 is maintainable.

Under the Doctrine of Alternative Remedies, the cardinal principle is to exhaust local
remedies first which is nearest to him/her in the chain of Judicial structure and that
precious Judicial Structure, and that precious Judicial resources.

2. Whether the Newspaper report can be used as Evidence.

In the present case, the Petitioner had filed and had even attached the newspaper report.
The counsel for the Respondent firmly believes that Newspaper reports based on the
rulings of the Supreme Court and the Indian Evidence Act, 1872 that Newspaper rulings
have no value unless it is backed by witnesses and at best secondary second-hand
evidence.
3. Whether the raids conducted by the Police Commissioner and the Income Tax officials
just.
The Police Commissioner is empowered under Sec 42(1) of the Narcotics Act 1985 if he
has a reason to believe that there are Psychotropic substances present he has the power to
search any building or conveyance. To substantiate this, the cases of Union of India v
Satrohan and Balbir Singh v State of Punjab. The Income Tax officer is empowered
under Section 132 of the Income Tax, 1961 which empowers the IT officers to do so and
it cannot be termed as Mala Fide just because of the tenuous link between the IT
Commissioner and the Police Commissioner. And as Article 21 is not absolute and
subject to reasonable restriction.
4. Whether Order S.O. 6227(E) of Cyber and Information Division of Ministry of Home
affairs dated 20-12-2018 ,Rule 4 of the Information Technology (Procedure and
Safeguards for Interception, Monitoring and Decryption of Information ) Rules 2009 and
Section 69(1) of Information Technology Act 2000 a reasonable intrusion on
Fundamental Rights.
The order of the Home Ministry, falls under the ambit of reasonable restrictions on
Fundamental Rights under Article 21 on Right to Privacy.

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ARGUMENTS ADVANCED

1. Whether the petition under Article 32 is maintainable.

The Petitioner, had directly filed a petition regarding the raid conducted by the Police and the
alleged breach of Privacy by the Police officers. But the course of action that the petitioner has
chosen is still murky. But the raid by the Income Tax officials and the petition against The Home
Ministry’s order was done by Article 32 of The Constitution of India. The Petitioner had directly
chosen the Honourable Supreme Court and had not exhausted remedies under the Doctrine of
exhaustion of Alternative Remedies in which one of the cardinal principles is to approach the
forum that is nearest to him/her in the chain of Judicial Structure, and that precious Judicial
resources, both at higher level and at the lower perhaps the specialized level, should not be
wasted in the wake of a forum of shopping exercise. 1 In the case of Union of India v T R Verma2,
where the Supreme Court lent some credence to the doctrine and stated that : “ It is well settled
that when an alternative and equally efficacious remedy is open to a litigant, he should be
required to pursue that remedy and not to invoke the special jurisdiction of the High Court to
issue a preogartive writ”. Though the Doctrine of Exhaustion of Alternative Remedies is not
applied in a strict sense as it is based on a rule of convenience and is often cited by the Judiciary
as the reason for disallowing a case in a particular forum. In the case of Satish Chandra v
Registrar of Cooperative Socities3, in this case, Article 226 was specifically stated as an
alternative remedy and consequently, petition under Article 32 was dismissed. The Jurisdiction
under Article 32 is available only to rights contravened in Part 3 of the Constitution of India or
for Writ remedy. In the present case, as it is highly unclear and murky as to what right was
violated as the Income Tax Department raiding the office of Dhomir Dost is still murky as the
raid was done as per Section 132 of the Income Tax Act which empowers them to do so and it
was done without causing any ruckus to the property.
1
Venkatesh Vijayarajan, The Doctrine of Exhaustion of Alternative Remedies,Hein Online (02,06,23:02)
https://heinonline.org/HOL/LandingPage?handle=hein.journals/nlsind13&div=5&id=&page=
2
Union of India v T R Verma, (1957)AIR 882 SCR 499
3
Satish Chandra v Registrar of Cooperative Socities,(1994) 3 SCC 332
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 2. Whether the Newspaper report can be used as Evidence.

The allegations that the Police Commissioner had raided the Hotel and has behaved in a
derogatory manner. The Newspaper also in its report furnishes the names of those whom the
Newspaper claims to be present at the Party. With all of that being said, in the present case, it
seems that the Petitioner is substantially relying on the Newspaper report as a proof against the
act of the Police Commissioner. In the case, of Luxmi Raj Shetty v. State of Tamil Nadu 4 it was
held that, A newspaper report without any further proof of what had actually happened through
witnesses is of no value and is inadmissable. It is at best a second-hand secondary evidence. It is
well known that reporters collect information and pass it on to the editor who edits the news item
and then publishes it. In this process the truth might get perverted or garbled. Such news items
cannot be said to prove themselves although they may be taken into account with other evidence
if the other evidence is forcible . In the same case, the apaex court also held that, The
presumption of genuineness attached under Section 81 of the Evidence Act to a newspaper report
cannot be treated as proved of the facts reported therein. In the case of B.Singh (Dr.) v. Union of
India5,the decision in Luxmi Raj Shetty v. State of Tamil Nadu6,was reaffirmed and it was held
that Newspaper reports per se do not constitute as legally acceptable evidence . In K. Shyam
Kumar and ors. v. Chairman, All Railway Recruitment Boards it was held that Newspaper is not
one of the documents reffered to in Sec. 78(2) of the Indian Evidence Act by which an allegation
or fact could be proved . Hence, in light of the above case laws and the Indian Evidence
Act,1872 the counsel for the Respondent believes that the Newspaper report which alleges the
derogatory acts done by the Police cannot be admissible as Evidence.

3. Whether the raid conducted by the police commissioner is reasonable?

In the present case, according to the newspaper report which alleges that the Police
entered the Party at around 12:00 am and were led by the Commissioner of Police Sham
Kiran. This act of raiding the Hotel by the Police is justifiable under Section 42(1) of
The NDPS Act which reads as follows, Any such officer (being an officer superior in
4
Luxmi Raj Shetty v State of Tamil Nadu,AIR 1988 3 SCR 706
5
B. Singh(Dr.) v. Union of India,
6

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 rank to a peon, sepoy or constable) of the departments of central excise, narcotics,
customs, revenue intelligence or any other department of the Central Government
including paramilitary forces or armed forces as is empowered in this behalf by general
or special order by the Central Government, or any such officer (being an officer superior
in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any
other department of a State Government as is empowered in this behalf by general or
special order of the State Government, if he has reason to believe from persons
knowledge or information given by any person and taken down in writing that any
narcotic drug, or psychotropic substance, or controlled substance in respect of which an
offence punishable under this Act has been committed or any document or other article
which may furnish evidence of the commission of such offence or any illegally acquired
property or any document or other article which may furnish evidence of holding any
illegally acquired property which is liable for seizure or freezing or forfeiture under
Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed
place, may between sunrise and sunset, enter into and search any such building,
conveyance or place7. In the case of Union of India v Satrohan 8, this honourable Apex
Court held that, In case of an emergent situation, these powers can also be exercised even
between sunset and sunrise without obtaining a search warrant or authorization. This case
also held that, The decisions in State of Punjab v. Balbir Singh 9, Abdul Rashid Ibrahim
Mansuri v. State of Gujarat10 and Beckodan Abdul Rahiman v. State of Kerala 11, on the
aspects under consideration are neither relevant nor applicable. Apart from that, The
Supreme Court of India in the case of The State of Punjab v. Baldev Singh & Ors, the
court opined that A power of search and seizure is in any system of jurisprudence an
overriding power of the State for the protection of social security and that power is
necessarily regulated by law. When the Constitution makers have thought fit not to
subject such regulation to constitutional limitations by recognition of a fundamental right
to privacy, analogous to the American Fourth Amendment, we have no justification to
7
https://www.manupatrafast.in/pers/Personalized.aspx ( viewed on 07-02-2019 at 23:33)
8
Union of India v Strohan, SCC 2008 3 CRI 620
9
Balbir Singh v State of Punjab, AIR 1994 3 SCC1872
10
Abdul Rashid Ibrahim Mansuri v State of Gujarat, 2000 1 SCR 542
11
Beckodan Abdul Rahiman v. State of Kerala, 2002 4 SCC 229
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import it, into a totally different fundamental right, by some process of strained
construction. Nor is it legitimate to assume that the constitutional protection under Article
20(3) would be defeated by the statutory provisions for searches. Apart from that the
Court in the same case, also opined that, A search and seizure is, therefore, only a
temporary interference with the right to hold the premises searched and the articles
seized. Statutory regulation in this behalf is necessary and reasonable restriction cannot
per se be considered to be unconstitutional. The damage, if any, caused by such
temporary interference if found to be in excess of legal authority is a matter for redress in
other proceedings. We are unable to see how any question of violation of Article 19(1)(f)
is involved in this case in respect of the warrants in question which purport to be under
the first alternative of Section 96(1) of the Criminal Procedure Code”.

Regarding the raid conducted by the Income Tax officials

In the present case, the Income Tax had raided the office of the well-known NGO and the
counsel for the Respondent firmly believes that calling the raid mala fide is a very
tenuous claim as it just cannot be attributed to the fact that merely because the petitioner
claims that the Commissioner of Income Tax is the brother of The Police Commissioner
and is Mala Fide. The Counsel believes that this tenuous connection as claimed by the
Petitioner does not form strong basis as the Income Tax Department is empowered under
Sec. 132 of the Income Tax Act, Where the Director General or Director or the Chief
Commissioner or Commissioner or any such Deputy Director or Deputy Commissioner
as may be empowered in this behalf by the Board, in consequence of information in his
possession, has reason to believe thatany person is in possession of any money, bullion,
jewellery or other valuable article or thing and such money, bullion, jewellery or other
valuable article or thing represents either wholly or partly income or property 1 which has
not been, or would not be disclosed for the purposes of the Indian Income- tax Act, 1922
then, enter and search any 1 building, place, vessel, vehicle or aircraft] where he has
reason to suspect that such books of account, other documents, money, bullion, jewellery
or other valuable article or thing are kept; seize any such books of account, other

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 documents, money, bullion, jewellery or other valuable article or thing found as a result
of such search.

4. Whether Order S.O. 6227(E) of Cyber and Information Division of Ministry of

Home affairs dated 20-12-2018 ,Rule 4 of the Information Technology (Procedure
and Safeguards for Interception, Monitoring and Decryption of Information )
Rules 2009 and Section 69(1) of Information Technology Act 2000 are a reasonable
restriction of Fundamental Rights.

The Union Home Ministry, in the exercise of powers conferred by Section 69 (1) and Rule 4
of the Information Technology (Procedure and Safeguards for Interception, Monitoring and
Decryption of Information ) Rules 2009 and Section 69(1) of Information Technology Act
2000 has authorised 10 central agencies and bodies to intercept, monitor, and decrypt “any
information generated, transmitted, received or stored in any computer. The organizations
which were given the authority to do so were : Intelligence Bureau, Narcotics Control
Bureau, Enforcement Directorate, Central Board of Direct Taxes, Directorate of Revenue
Intelligence, Central Bureau of Investigation; National Investigation Agency, Cabinet
Secretariat (R&AW), Directorate of Signal Intelligence (For service areas of Jammu &
Kashmir, North-East and Assam only) and Commissioner of Police, Delhi. It is pertinent to
note that these agencies are specialized agencies with huge and decisive responsibility like
maintaining National Security which naturally is of public interest and one of the core
attributes of society. This, the Counsel believes is a reasonable restriction on Fundamental
Rights due to the inherent gravity and the profound responsibility that is entrusted to the
organization. The Supreme Court in the case of Justice K.S. Puttaswamy (Retd.) v. Union of
India in 2017, held that though Right to Privacy falls under the purview of Article 21 of The
Constitution of India, like other rights which form part of the fundamental freedoms
protected by Part 3, including right to life and personal liberty under Article 21, privacy is

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 not an absolute right and is subject to reasonable restrictions 12. The Supreme Court in the
case of, Mohd. Hanif Qureshi v. State of Bihar 13, held that, Fundamental Rights are subject to
reasonable restrictions in the interest of the society and in the case of Santokh Singh v. Delhi
Administration14, AIR 1973 SC 1094 held that Our Constitution has rightly attempted to
strike a proper balance between the various competing social interests. The order of the
Home Ministry authorises the 10 Agencies to intercept, monitor and decrypt. The word
intercept according to the Rules under section 69(2) of the Information Technology Act,
2008 (after the 2008 amendment) the word intercept is defined as : “intercept” with its
grammatical variations and cognate expressions, means the aural or other acquisition of the
contents of any information through the use of any means, including an interception device,
so as to make some or all of the contents of an information available to a person other than
the sender or recipient or intended recipient of that communication, and includes--
monitoring of any such information by means of a monitoring device; viewing, examination
or inspection of the contents of any direct or indirect information; and diversion of any direct
or indirect information from its intended destination to any other destination to any other
destination. The Government agencies which are empowered to do so are not the Local Law
Enforcement authorities but specialized agencies who deal with issues which are of
paramount importance to the country. Decryption under decryption key” means any key,
mathematical formula, code, password, algorithm or any other data which is used to-- allow
access to encrypted information; or facilitate the conversion of encrypted information into an
intelligible form. Hence, though in the case of Justice K.S. Puttaswamy (Retd.) v.
Union of India held that Right to Privacy is a Fundamental Right but it also held that Right to
Privacy is subject to reasonable restrictions. Hence, in the interest of National Security and to
ensure harmony in the society the counsel for the Respondent believes that this provision is a
just and reasonable restriction on Fundamental Rights.

12
K.S Puttaswamy v Union of India, 2017 1 SCC 10
13
Mohd Hanif Qureshi v State of Bihar,AIR 1958 SCR 629
14
Santokh Singh v. Delhi Administration, AIR 1973 SC 1094
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 PRAYER

Therefore, in light of the issues raised above, presentation of pleadings and authorities cited. The
counsel for the Respondents, humbly place before the Supreme Court of India maybe pleased to
hold, adjudge and declare:

1. That the Supreme Court under the Doctrine of Alternative Remedies direct High Court to
take cognizance of the matter.
2. That the acts of the Police Commissioner and the Income Tax is not Mala Fide and is a
reasonable restriction on Fundamental Rights.
3. That the order of The Home Ministry is a reasonable restriction on Fundamental Rights
and hence not unconstitutional.
4. Pass any order which may deem fit in the interest of Justice, Equity and Good Conscience
and for this act of kindness, your Respondent in dutybound shall ever pray.

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