KERALA LAW ACADEMY LAW COLLEGE

THIRUVANANTHAPURAM

BEFORE THE HONOURABLE SUPREME COURT OF INDIANA

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIANA, 1950

WRIT PETITION No. xx/2023

CASES CONCERNED WITH CHALLENGING VARIOUS PROVISIONS OF

NARCOTIC DRUGS AND PSYCHIATRIC SUBSTANCES ACT, 1985 AND
MAJARASHTRA PROHIBITION ACT, 1949

Primary Case: Mr. Y v. Administration of Kumbai (SLP under Article 136)

Mr. Y …………………………………………………………….……………………….. Petitioner

Administration of Kumbai …………………………………….………………………Respondent 1
Union of Indiana …………………………………………………………..…………. Respondent 2
Other Cases:

Case 1: Mr. Z v. Union of Indiana (Writ Under Article 32)

Mr. Z ……………………………………………..………………………………………. Petitioner

Union of Indiana ….……………………………..…………………………………….. Respondent
Case 2: Mr. X v. Union of Indiana (Writ Under Article 32)

Mr. X …………………………………………………………………………….………. Petitioner

Union of Indiana ……………………………..………………………………….……. Respondent

MEMORIAL ON BEHALF OF THE PETITIONERS

 TABLE OF CONTENTS

Contents
LIST OF ABBREVIATIONS ..............................................................................................................3

INDEX OF AUTHORITIES ...............................................................................................................5

STATEMENT OF JURISDICTION ...................................................................................................8

STATEMENT OF FACTS ...................................................................................................................9

ISSUES RAISED ................................................................................................................................13

SUMMARY OF ARGUMENTS ........................................................................................................14

ARGUMENTS ADVANCED .............................................................................................................17

PRAYER ..............................................................................................................................................27
 LIST OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

¶ Paragraph

& And

A.I.R. All India Reporter

Anr. Another

Bom Bombay

Ed. Edition

HC High Court

SC Supreme Court

ILR Indian Law Reporter

No. Number

Ors. Others

Sec. Section

S.C.C. Supreme Court Cases

Supp. Supplementary

S.C.R. Supreme Court Reporter

v. Versus

Vol. Volume

u/s Under Section

 i.e., That is

Govt. Government

I.LR Indian Law Review

U.O. I Union of India

P&H Punjab and Haryana

Pg Page

Crim.LR Criminal Law Reporter

 INDEX OF AUTHORITIES
1. CASES
1. Ajay Hasia v. Khalid Mujib Sehravadi (1981) 1 SCC 722
2. Ajay Hasia v. Khalid Mujib Sehravadi (1981) 1 SCC 722
3. Arjun Singh v. State of Haryana, 2004 SCC Online P&H 828
4. Balbir Kaur v. State of Punjab (2009) 15 SCC 795
5. Bhola Singh v. State of Punjab (2011) 11 SCC 653
6. Muraleedharan Vs State of Kerala 2001 scc 638
7. Dataram v. State of U.P. 2018 (3) SCC 22
8. East Coast Railway v. Mahadev Appa Roa (2010) 7 SCC 678
9. Hari Ram v. State of Haryana (2010) 3 SCC 621
10. Ashish v. State of Maharashtra, 2020 SCC OnLine Bom 11318
11. Jawahar Singh v. State of GNCT of Delhi (2009) 6 SCC 490
12. M. Prabhulal v Directorate of Revenue Intelligence AIR 2003 SC 4311
13. Madan Lal and Ors v. State of Himachal Pradesh AIR 2003 SC 3642
14. Madhukar v. State of Maharashtra, 2002 SCC Online Bom 1271
15. Madhukar v. State of Maharashtra, 2002 SCC Online Bom 1271
16. Michael Raj, V N.C.B. (2008) 5 SCC 161
17. Mohan Lal v. State of Punjab (2018) 17 SCC 627
18. Narcotic Control Bureau v. Kishan Lal & Ors (1991) 1 SCC 705
19. Naresh Kumar v. State of H.P (2017) 15 SCC 684
20. Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225
21. State of NCT Delhi v. Ashif Khan (2009) 4 SCC 42
22. State of West Bengal v. Anwar Ali Sarkar (1952) 1 SCC 1
23. T. Thomson v. State of Kerala (2002) 9 SCC 618
24. Tofan Singh v. State of Tamil Nadu, (2013) 16 SCC 31
25. Union of India v. Gurcharan Singh 2003 11 SCC 764

2. STATUTES
1. THE INDIAN CONSTITUTION, 1950
2. THE INDIAN PENAL CODE, 1860
3. CODE OF CRIMINAL PROCEDUE, 1973
 4. THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES, ACT, 1985
5. THE MAHARASHTRA PROHIBITION ACT

3. INTERNATIONAL STATUTES
1. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
(ICCPR)
2. UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)

4. ARTICLES AND REPORTS

1. https://timesofindia.indiatimes.com/readersblog/legalangle/a-detailed-overview-
of-narcotic-drugs-and-psychotropic-substances-act1985-45878/
2. https://www.lawyersclubindia.com/judiciary/gurdev-singh-v-state-of-punjab-6th-
april-2021-the-issue-that-the-present-case-deals-with-is-whether-or-not-poverty-
of-the-accused-can-be-a-mitigating-factor-while-awarding-punishment-under-
ndps-act-5155.asp
3. https://p39ablog.com/2021/09/penalising-poverty-the-legacy-of-gurdev-singh/
4. https://www.moneycontrol.com/news/india/ndps-court-orders-probe-to-find-
whether-mundra-adani-port-gained-from-import-of-heroin-7522701.html
5. https://www.scconline.com/blog/post/2020/08/06/sc-answers-reference-on-
liabilities-of-owner-port-trust-under-mpt-act-with-respect-to-storage-of-goods-
payment-of-charges/

5. BOOKS
1. H.M. Seervai, Constitutional Law of India, vol.1, Universal Book Traders, vol
3,4thed.2002.
2. V.N. Shukla’s, Constitution of India, 11th ed. Eastern Book Company
3. Mahendra Pal Singh, M.N. Shukla’s Constitution of India, EBC Publication,13th
edition,2017
4. Dr Mrs. Mamta Rao, Constitutional law, Eastern Book Company, Lucknow, 4th
Ed., 2013
5. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd edition, LexisNexis, 2010
6. M P Jain, M P JAIN Indian Constitutional law, Lexis Nexis, 8th Ed. 2010
7. P M Bakshi, The Constitution of India, Allahabad Law Agency, 3rd edition,2007
 8. D.D. Basu, D.D. Basu’s Commentary on ‘the Constitution of India’, vol 1,2,3,7,
Lexis Nexis, 8th ed. 2009.
9. T.K. Tope’s, Constitutional Law of India, 3rd ed, Eastern Book Company

6. LEXICONS
1. Henry Campbell Black, Black’s Law Dictionary, (9th Ed. 2010)
2. Ramanatha Iyer, Advanced Law Lexicon, 2391(3rd Ed.2005)
3. The Oxford Dictionary, 2nd Ed.p.433)
4. Collina Cobuild English Language Dictionary

7. DATABASES AND WEBSITES

1. http://www.manupatra.com
2. http://www.heionline.com
3. http://www.SCConline.com
4. http://www.lexisnexis.com/in/legal
5. http://www.allaw.com
6. http://www.lexology.com
7. https://narcoordindia.in/
8. http://cbn.nic.in/en/home/
9. http://www.lawfirms.com
10. http://www.scribd.com
11. http://www.indiankoon.org
12. http://www.latestlaws.com
13. http:// www.legalserviceindia.com
14. http://www.westlawindia.com
15. http://www.vakilno1.com
 STATEMENT OF JURISDICTION

THE RESPONDENTS HAVE THE HONOUR TO SUBMIT BEFORE THE HON’BLE

SUPREME COURT OF INDIANA, THE MEMORANDUM FOR THE
RESPONDENTS UNDER ARTICLE 32 (WRIT PETITION) OF THE
CONSTITUTION OF INDIANA, 19501.

The present memorandum sets forth the facts, contentions, and arguments in the present
case in the jurisdiction of the Respondents.

1
Art 32, Constitution of Indiana- Writ Petition before the Supreme Court.
Article 32: Remedies for enforcement of rights conferred by this Part (Part III)
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred
by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever maybe appropriate, for the
enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by
Law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
constitution.
 STATEMENT OF FACTS

The petitioners, Mr. Y, Mr. Z and Mr. X had filed petitions involving questions relating to the
violation of fundamental rights guaranteed by Article 14 and Article 21 of the Constitution of
India against the various provisions of The Narcotics Drugs and Psychotropic Substances
Act, 1985 and the Maharashtra Prohibition Act, 1949. The Supreme Court of Indiana decided
to hear all the petitions together on the question of maintainability as well as the merits of
individual cases.

Indiana is a country having a Constitution as well as legal system identical to that of India.
The geography of Indiana is also similar to that of India. Indiana is a member of the United
Nation, and it has ratified all the International treaties which has been ratified by India.

ORIGIN AND PURPOSE OF THE NARCOTICS DRUGS AND PSYCHOTROPIC

SUBSTANCES ACT, 1985

The NDPS Act 1985 has been enacted by the government to combat the illicit trafficking of
narcotic drugs, psychotropic substances, controlled chemicals as specified by the
Government. It provides for prosecution of offenders, deterrent punishment and forfeiture of
illicit property acquired from drug trafficking.

The NDPS Act envisages a multi-agency enforcement system comprising of a number of

Central Government enforcement agencies besides the Central Bureau of Narcotics, such as
Narcotics Control Bureau, Customs, Central Excise, Para-military Forces as well as State
Govt. Agencies like State Police for effective control and prevention of illicit production,
manufacture, distribution, trade, etc. of narcotic drugs and psychotropic substance.

Under the aforesaid Act, the Government has also framed the Narcotics Drugs and
Psychotropic Substances Rules, 1985 (NDPS Rules, 1985) for effectuating the purpose of the
Act. The above Rule governs the various provisions, viz., Opium poppy cultivation and
production of opium and poppy straw, Manufacture, Sale and Export of Opium, Manufacture
of natural manufactured drugs, Manufacture of synthetic manufactured drugs, Import, Export
and Transshipment of NDPS, etc.
FACTS OF THE CASE: Mr. Y v. Administration of Kumbai

A complaint was filed on 16th December through the intelligence officer at the Kumbai zonal
unit of the Narcotics Control Bureau (hereinafter referred to as ‘NCB’). As was alleged in the
complaint, the NCB zonal unit received information that, the appellant in this case, namely
Mr. Y who is resident of the city of Kumbai is proceeding with heroin in a Maruti Ritz
vehicle bearing registration No. KM6889 from Kumbai to the neighbouring state Shambala
and that the vehicle would pass through the Saint Mary’s college, Shambala. The information
was reduced into writing and was produced before the zonal director. A team of NCB officers
was formed, and it was directed to liaise with the team of Shambala special task force,
Shambala.

Surveillance was conducted in the area around St. Marys’ college and the car in which Mr. Y
was transporting the goods was intercepted. A search of the car revealed a sealed polythene
packet weighing around 400 grams in the trunk of the car along with the other medicines of
questionable nature. Samples were taken and upon testing with the drug detection kit, the
samples tested positive for heroin. Mr. Y was immediately taken in custody by the NCB.

The samples were then sent to the Chief Examiner, Central Revenues Control Laboratory
(CRCL), Kumbai. A medical examination report was prepared by CRCL which stated that the
samples did not test positive for diacetylmorphine that is heroine but it tested positive for
morphine.

The accused was charged and convicted by the sessions court with Sec. 8 of the NDPS act
punishable with Sec. 21 which imposed punishment of rigorous imprisonment for a term of
twenty years and a fine of rupees two lakh twenty thousand was imposed upon him.

Mr. Y appealed the decision of conviction of the Sessions Court to the High Court of Kumbai
but the High Court also upheld the decision of the sessions court.
FACTS OF THE CASE: Mr. Z v. Union of Indiana

Every year, people of the Doka village in the state of Kumbai eagerly wait for the annual
festival of yoli that has being celebrated in their community for as long as one can remember.
It is also a tribute to their local deity Doki, the goddess of food grains.

A major part of the festival is the use of cannabis which has been given numerous names and
forms over a thousand of years. Cannabis has been a part of this religion used in the form of
charas, bhang and ganja (flower of cannabis). One of the most commonly used form of
cannabis is the delicacy ‘thandai’ (which is the other name for bhang), a refreshing beverage
laced with cannabis seeds and leaves. This beverage is especially popular among the farmers
who have worked hard for the harvest.

On the given day the Doki festival, on seeing that the thandai that was being served was laced
with the cannabis leaves and seeds, the police took cognizance of the fact and arrested the
vendor, Mr Z for the offence of Sections 65 (b), 65 (e) and 65(g) and one Mr. B who was
about to consume the thandai for section 65(e) of the Maharashtra Prohibition Act, 1949 for
consumption and supply of intoxicating substance respectively.

The trial court acquitted the Mr. B as the terms consumption and buying were ambiguous in
nature and therefore could not be proved in the trial court. The trial court also noted that the
Maharashtra Prohibition Act and the NDPS act were repugnant to each other so far as
quantum of punishment was involved for the same offence.

However, the Vendor Mr. Z was held liable for the offences stated above and convicted
thereafter.

FACTS OF THE CASE: Mr. X v. Union of Indiana

On 1st January 2022, the Narcotics Control Bureau, is a central law enforcement and
intelligence agency under the Ministry of Home Affairs, Government of Indiana. The NCB
received an information that in one of the ports owned by Mr. X a ship carrying illegal
contraband will reach the dockyard on 15th January 2022. Earlier that year similar
information had been received by the NCB that MR. X was using his ports to export and
transport drugs to different countries and even in different states of Indiana. The information
was reduced to writing and since then NCB constantly monitored the activities on the ports
and on the opportune day the NCB raided the ports and the concerned ship was found. The
officers found in the possession of the ship- personnel 5 kg. of illegal cocaine and were
immediately brought to custody for interrogation.

Mr. X apprehending the arrest soon, approached the high court of Kumbai for granting him
the anticipatory bail. However, the same was denied by the High Court stating that he could
not avail the benefit of Section 438Cr.P.C that is anticipatory bail since Section 37 starts with
a non- obstinate clause which takes away the right of petitioner to file for an anticipatory bail.
The Anticipatory bail was not available in cases relating to Section 37 of the act the act owing
to the special nature of the NDPS act. Moreover, the parliament has overridden the provision
of Section 438 Cr.P.C. Therefore, Section 37 of the Act deprived the court to grant
anticipatory bail.
 ISSUES RAISED

ISSUE 1

i. Whether the present petitions are maintainable.

ISSUE 2

ii. Whether the punishment prescribed by the NDPS Act, 1985 is arbitrary and violative of
Art 14 and Art 21 of the Constitution of Indiana.

ISSUE 3

iii. Whether the presumption under Section 35 of the NDPS Act, 1985 is unconstitutional as
being violative of Art 14 and Art 21 of the Constitution of Indiana.

ISSUE 4

iv. Whether the punishment prescribed under Sections 65 (b), 65 (e) and 65(e) of the
Maharashtra Prohibition Act, 1949 are violative of Article 19 and Article 29 of the
Constitution of Indiana.

ISSUE 5

v. Whether the section 37 of NDPA Act, 1985, bars the application of Section 438 of the
Code of Criminal Procedure, 1973.
 SUMMARY OF ARGUMENTS

1. THE PETITION FILED BY THE PETITIONERS, MR. Y, MR. Z AND MR. X IN

THEIR RESPECTIVE CASES UNDER ARTICLE 32 AND ARTICLE 136 (1) OF
THE CONSTITUTION OF INDIANA IS MAINTAINABLE.

In the present Petition the Appellants have been unsuccessful to show the existence of
any exceptional and special circumstances to warrant the valuable time of this Hon’ble
Supreme Court (hereinafter referred to as “SC”). Additionally, the Appellant has failed
to show the presence of substantial question of law of general public importance. It is
humbly submitted on behalf of the Counsel of the Respondent that this is mere vexatious
attempt to appeal by the appellant who were convinced of a heinous crime. Hence, the
petition is liable to be dismissed for the aforementioned reasons.

2. THE PUNISHMENT PRESCRIBED BY THE NDPS ACT, 1985 IS ARBITRARY

AND VIOLATIVE OF ARTICLE 14 AND ARTICLE 21 OF THE CONSTITUTION
OF INDIANA.

The petitioners in the cases have all been subjected to arbitrary application of the provisions
of the Narcotics Drugs and Psychotropic Substances Act, 1985 as well as the Maharashtra
Prohibition Act, 1949. While the petitioners do not question the legislative intent nor do they
question the powers of the executive to ensure public order, safety and morality, the
petitioners would plead the Hon’ble Court to assert their fundamental rights to fair treatment,
right to dignity and life, as well as the right to practice their social customs and culture, which
are guaranteed vide Articles 14, 21 and 29 of the Constitution of Indiana.
 3. THE PRESUMPTION UNDER SECTION 35 OF THE NDPS ACT, 1985 IS
UNCONSTITUTIONAL AS BEING VIOLATIVE OF ART.14 AND ART.21 OF THE
CONSTITUTION OF INDIANA.

The Counsel for the Respondent side humbly contends that Section 35 of the Narcotics
Drugs and Psychotropic Substances Act, 1985, which presumes that any accused
apprehended with possession of any substance specified in the Act is with conscious
possession, is fully constitutional and compliant of the principles of Article 14 and Article 21
of the Constitution of Indiana. The respondents humbly submit that Petitioner questioning
the constitutional validity of said part of constitution

4. THE PUNISHMENT PRESCRIBED UNDER SECTIONS 65 (b) AND 65(e) of the

MAHARASHTRA PROHIBITION ACT, 1949 ARE VIOLATIVE OF ARTICLE 19,
ARTICLE 25 AND ARTICLE 29 OF THE CONSTITUTION OF INDIANA.

The Petitioner,s Mr. Z contends that the punishment prescribed under Sections 65 (b) and 65
(e) are not violative of the fundamental rights guaranteed to the petitioner through Article 19,
Article 25 and Article 29 of the Constitution of Indiana, as the said Sections of the legislation
not infringes upon the right of the petitioner and not should not be allowed set free .

5. THE SECTION 37 of NDPS ACT 1985, BARS THE APPLICATION OF SECTION

438 OF THE CODE OF CRIMINAL PROCEDURE, 1973.

The Counsel for the Respondents humbly submits that Mr. X’s application for anticipatory
bail under Section 438 of the Code of Criminal Procedure, 1973 is limited by Section 37 of
the NDPS Act, 1985. The said legislation is intended to prevent people involved in the
dealing of narcotic drugs and psychotropic substances, in the instant case the application of
the said part of the legislation applies as there are possible reasons to believer that Mr. X is
exporting and transporting drugs to different countries and even in different states of Indiana.
 ARGUMENTS ADVANCED

1. THE PETITION FILED BY THE PETITIONERS, MR. Y, MR. Z AND MR. X

IN THEIR RESPECTIVE CASES UNDER ARTICLE 32 AND ARTICLE 136
(1) OF THE CONSTITUTION OF INDIANA IS MAINTAINABLE.

"If I was asked to name any particular article in this Constitution as the most
important - an article without which this Constitution would be a nullity - I
could not refer to any other article except this one (Article 32).
It is the very soul of the Constitution and the very heart of it."

- Dr. B. R. Ambedkar

It is humbly submitted before the Honourable court that the petition filed by the petitioners,
Mr. Y, Mr. Z and Mr. X in their respective cases under Article 32 and Article 136 of the
Constitution of Indiana is maintainable. The petitioners asserts that The petition filed by the
petitioners has the right to seek remedies that uphold the fundamental rights guaranteed by
the Constitution.

The petitioners assert that (1.1) the petitions filed by the Petitioners Mr. Y and Mr. X under
Article 32 of the constitution is maintainable, and (1.2) the petitioner Mr. Z has the right to
seek reliefs by way of a Special Leave Petition under Article 136 (1) of the Constitution of
Indiana.

1.1 The petitions filed by the Petitioners Mr. Y and Mr. X under Article 32 of the
constitution is maintainable.
It is humbly submitted before this Honourable Court that the petition filed under Article 32 of
the constitution of Indiana is maintainable. In the instant case the petitioner has approached
the Supreme Court invoking Article 32 of the constitution of Indiana. The petitioners asserts
that (1.1.1) Alternative remedy is no bar for filing writ petition (1.1.2) Infringement of
fundamental right is sufficient to file the writ petition.

1.1.1 Alternative remedy is no bar for filing writ petition.

Here, the petitioner need not establish either that he has no other adequate remedy or that he
has exhausted all other remedies provided by law, as Art. 32 is a Fundamental Right in itself
and therefore existence of an alternate remedy is no bar to the Supreme Court entertaining a
petition under it.

Where, there is a well-founded principle that when fundamental right has been infringed,
alternative remedy is no remedy for filing a writ petition and granting relief. The court may
exercise its writ jurisdiction in at least petitions where the petitioner seeks enforcement of any
of the fundamental rights. In the instant case since there is an infringement of fundamental
rights alternative remedy is no bar to file a writ petition.

1.1.2 Infringement of fundamental rights

Article 32 of the Constitution of Indiana is meant to ensure observance of the rule of law and
prevent abuse or misuse of power. It is designed to ensure that each and every authority in the
State, including the Government, acts bonafide and within the limits of its powers and that
when a court is satisfied that there is an abuse or misuse of power, it is incumbent on the
court to afford justice to the individual.

1.2 Relief by Way of Special Leave Petition

The Petitioner, Mr. X seeks relief by way of Special Leave from the judgement made by the
Hon’ble High Court against him by the respondents. It is humbly submitted by the Counsel
for the Petitioner that the Oder of the Sessions Court and subsequently by the High Court is
invalid and set the Petitioner free. The Counsel for the Petitioner humbly contends that the
notification by the Union Government of Indiana in connection with obtaining permission for
rafting camps is not valid.

2. Whether the punishment prescribed by the NDPS Act, 1985 is arbitrary and
violative of Art 14 and Art 21 of the Constitution of Indiana.

The use of opium for medicinal purposes in India can be traced back as far back as 1000 AD
where it finds mention in ancient texts such as “Dhanwantri Nighantu” as a remedy for
variety of ailments. In Emperor Akbar time (1543 to 1605) opium was cultivated extensively
in the Malwa (in MP) and Mewar (in Rajasthan) regions. The opium poppy contains alkaloids
such as morphine, codeine, thebaine, narcotine, papavarine which have analgesic, anti-tussive
and anti-spasmodic properties.

Prior to 1950, the administration of the Narcotics Laws, namely, the Opium Act of 1857 &
1878 and the Dangerous Drugs Act 1930 vested with the Provincial Government. The
amalgamation of these Agencies laid the foundation of the Opium Department in November,
1950 which is presently known as Central Bureau of Narcotics (CBN).

All the three enactments mentioned above were repealed by the Narcotics Drugs &
Psychotropic Substances Act, 1985 (NDPS Act, 1985).

The NDPS Act 1985 has been enacted by the government to combat the illicit trafficking of
narcotic drugs, psychotropic substances, controlled chemicals as specified by the
Government. It provides for prosecution of offenders, deterrent punishment and forfeiture of
illicit property acquired from drug trafficking.

The petitioners in the instant cases have been subjected to arbitrary application of the
provisions of the Narcotics Drugs and Psychotropic Substances Act, 1985 as well as the
Maharashtra Prohibition Act, 1949. While the petitioners do not question the legislative intent
nor do they question the powers of the executive to ensure public order, safety and morality,
the petitioners would humbly plead the Hon’ble Court to assert their fundamental rights to
fair treatment, right to dignity and life, as well as the right to practice their social customs and
culture, which are guaranteed vide Articles 14, 21 and 29 of the Constitution of Indiana.
 2.1 Punishments under NDPS Act, 1985

Chapter IV of the NDPS Act, 1985, that is from Section 15 to 40, provides for various
offences and punishments under the Act. It has identified certain activities that are against the
acceptable social norms which have been included in the category of offences in the Act.
These activities are forbidden by law due to the effect it causes to the physical health of an
individual. These substances have the potential to damage the mental abilities of an
individual as well.

It should be noted that Section 8 of Chapter III, also prohibits certain operations such as
cultivating any coca plant or gathering any portion of coca plant or cultivating the opium
poppy or any cannabis plant, or produce, manufacture, possess, sell, purchase, transport,
warehouse, use, consume, import inter-State, export inter-State, import into India, export
from India or tranship any narcotic drug or psychotropic substance, except for medical or
scientific purposes.

In the instant cases, Section 21, Section 32B and Section 35 inter alia are the relevant sections
of the legislation that the respondents have leaned upon.

2.2 Specific Sections Related to the Petitioners’ Cases

Section 21 - Punishment for contravention in relation to manufactured drugs and preparation,

which specifies small quantity and commercial quantity and fixes the punishments according
to the quantity.

Section 32B - Punishment for offence for which no punishment is provided – provides for an
offence of manufacturing, possession, selling, purchasing, transportation, or usage of any
manufactured drug or its preparation as an act in contravention of the provisions under the
Act, and allows imposition of higher than minimum punishment.

Section 35 - Presumption of culpable mental state - Offences created by statute, such as those
referred to in the NDPS Act, fall into the category of victimless crimes. The NDPS Act
eliminates the requirement of dishonest intention under Section 35 and directs the court to
presuppose the presence of a culpable mental state for all offences under the Act. Thus, in a
situation where possession is an offence under the Act, then there shall be involvement of
conscious possession.
 2.3 Punishment in the Instant Cases

The Counsel for the petitioner, Mr. Y humbly contends that the petitioner is a law-abiding
citizen who has been struggling to provide for his family and tend to his hospitalized child.
He is a victim of his circumstance, one which is riddled with poverty and helplessness, duly
exploited by men with dubious as well as criminal intentions.

The Petitioner humbly submits that the application of Section 8, Section 21, Section 32B and
Section 35 are violative of his fundamental rights to lead a life of liberty, freedom and dignity
of life. In State of NCT Delhi v. Ashif Khan2 case, the Hon’ble Court has held that, for
determination of whether total weight of seized substance or the percentage of narcotic
drug/psychotropic substance found in that substance is relevant, applying Michael Raj, V
N.C.B.3 case, it is clear that only actual percentage of such drug or substance content
converted into weight is relevant. Applying this precedent, the quantity alleged to be seized
from the petitioner accounting for the actual weight of the said substance is way less than the
quantity that qualifies for punishment.

As regards to the minimum sentence, the Hon'ble Court has held in T. Thomson v. State of
Kerala4 that in peculiar circumstances, the sentence can be limited to the minimum period
prescribed under the provisions, which clearly indicates that the lower court in this
petitioner’s case has not considered the entire circumstances under which the Petitioner was
subjected to the arrest and seizure of the said substances from the vehicle that he was
contracted to drive.

It is also humbly submitted that as upheld by the Hon’ble Court in Jawahar Singh v. State of
GNCT of Delhi5 if the minimum punishment under Section 21 (c) of the Act is ten years with
a fine of Rs. 1,00,000, there is no reason as to why the minimum sentence prescribed therein
cannot be held to be acceptable. The Court thus said, “it is now beyond any doubt that the
quantum of punishment to be inflicted on an accused upon recording a judgement of
conviction would be as per the law, which was prevailing at the relevant time”.

2
(2009) 4 SCC 42
3
(2008) 5 SCC 161
4
(2002) 9 SCC 618
5
(2009) 6 SCC 490
 2.4 There is a blatant violation of Article 14 and Article 21 of the Constitution

Dr. B. R. Ambedkar, the father of the Constitution of Indiana, has called Article 146 the
"gatekeeper" of the Constitution. He said, "If any Article which the Constituent Assembly has
passed bears that stamp which exhibits a reverent impartiality, I will humbly point to Article
14." He emphasized that Article 14 meant the abolition of all headships and abolition of all
discriminations arising out of any existing circumstance.

It is humbly submitted before this Honourable Court that there is a clear-cut violation of
Article 14 of the Constitution. The petitioners asserts that the Act was applied arbitrarily with
regard to the rights of equality and equal protection of law. The test of reasonable
classification is not satisfied in the instant matter as well. The most important of all
fundamental rights being right to equality envisaged under Article 14 enshrines equality as a
basic feature of the Constitution. Though equality is regarded as the ever-shining dynamic
concept under Article 14, it is pertinent to emphasize that it is antithetic to arbitrariness.

On Article 21 (Protection of life and personal liberty, Dr. Ambedkar stressed that Article 21
was the most important Article without which the Constitution would be a nullity. He said, "It
is the very soul of the Constitution and the very heart of it." He viewed Article 21 as the most
comprehensive provision guarding life and personal liberty against executive tyranny or
oppression. In the instant case, Article 217 of the Constitution of Indiana is also violated.

It is evident that the application of Section 8 and Section 21 of the NDPS Act, 1985 in the
petitioner’s case is legally wrong, and this has violated the fundamental rights of the
Petitioner, guaranteed under Article 14 and 21 of the Constitution of Indiana.

Therefore, the Petitioner humbly submits that the punishment of the Petitioner is held legally
invalid and violative of the fundamental rights guaranteed to him.

3. Whether the presumption under Section 35 of the NDPS Act, 1985 is

unconstitutional as being violative of Art 14 and Art 21 of the Constitution of
Indiana.

6
Article 14 - The State shall not deny to any person equality before the law or the equal protection of the laws
within the territory of India.
7
Article 21 - No person shall be deprived of his life or personal liberty except according to procedure
established by law.
The Narcotic Drugs and Psychotropic Substances (NDSP) Act, 1985 constitutes the statutory
framework for drug law enforcement in India. This enactment consolidates the erstwhile Acts
viz., the Opium Act 1857; the Opium Act 1878 and the Dangerous Drugs Act, 1930.
Furthermore, India’s obligations under certain international convention, namely the 1961
Single Convention, the 1971 Convention against Psychotropic Substances and the 1988
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, are
implemented domestically through appropriate provisions in the NDPS Act.

Presumption of culpable mental state and conscious possession

Presumption of Innocence is one of the fundamental principles of criminal jurisprudence

which axiomatically enunciates that an accused is presumed to be innocent until proven
guilty. This fundamental principle is underpinned by the maxim “semper necessitas probandi
incumbit ei qui agit‟: the necessity of proof lies with the person who levels the charges.

Section 35 of the NDPS Act, deals with presumption of culpable mental state of an accused
requiring the Court to presume the existence of such mental state for a prosecution under the
Act.

“culpable mental state” includes intention motive, knowledge of a fact and belief in, or reason
to believe, a fact.”

This essentially means that a person charged with an offence under the NDPS Act would have
to rebut the presumption against him and the burden of proof would lie on him to show that
he has not committed the act constituting an offence.

In Naresh Kumar alias Nitu v. State of Himachal Pradesh (2017) 15 SCC 684,

it was held by the Supreme Court that the presumptions against the accused of culpability
under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are
rebuttable. It does not dispense with the obligation of the prosecution to prove the charge
beyond all reasonable doubt.

In Noor Aga v. State of Punjab and Ors. (2008) 16 SCC 417

it was held that Section 35 and 54 of the NDPD Act which imposes a reverse burden on the
accused is constitutional as the standard of proof required for the accused to prove his
innocence is not as high as that of the prosecution.
Abdul Rashid Ibrahim Mansuri v. State of Gujarat AIR 2000 SC 821,

where an accused admits that narcotic drugs were recovered from bags that were found in his
possession at the time of his apprehension, in terms of Section 35 of NDPS Act the burden of
proof is then upon him to prove that he had no knowledge that the bags contained such a
substance.

The presumption under Section 35 of the NDPS Act can only be raised if the prosecution
establishes the possession of the contraband beyond reasonable doubt. This means that before
the presumption of culpable mental state can come into play, the prosecution must prove,
beyond reasonable doubt, that the accused was in possession of the contraband. This burden
lies on the prosecution to establish the link between the accused and the contraband
substance. The presumption under Section 35 of the NDPS Act pertains to the culpable
mental state of the accused, including intention, motive, knowledge of a fact, and belief in, or
reason to believe, a fact. It is a rebuttable presumption, meaning that the accused can present
evidence to prove that they did not have the required mental state.

4. Whether the punishment prescribed under Sections 65 (b)and 65(e) of the

Maharashtra Prohibition Act, 1949 are violative of Article 19 and Article 25
of the Constitution of Indiana.

The Maharashtra Prohibition Act, 1949 is a legislation to amend and consolidate the laws
relating to the promotion and enforcement of and carrying into effect the policy of
Prohibition and also the Abkari law in the State of Bombay, later meant to cover the state of
Maharashtra.

Article 29 guarantees fundamental rights of a citizen residing in the territory of India having a
distinct language, script or culture of its own shall have the right to conserve the same.Shall
not violate the state policy

The Counsel of the Respondent, for Union of Indiana humbly contends that the application of
the provisions of Section 65 (b) and 65 (e) of the Maharashtra Prohibition Act, 1949 not
infringes upon the rights of the Petitioner guaranteed under Article 29 (1)8 of the Constitution.
8
29. (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct
language, sscript or culture of its own shall have the right to conserve the same.
 5. Section 37 of NDPS Act, 1985, bars the application of Section 438 of the Code
of Criminal Procedure, 1973.

Section 37 of the NDPS Act lays down the provisions for Offences under this act. Offences
under this Act are cognizable and non-bailable. Offences under this Act are cognizable, i.e.,
an offence for which the police can arrest without any warrant. Offences under this Act are
non-bailable unless the public prosecutor has been allowed to oppose the application and the
court is satisfied that the accused shall be released. The provisions regarding bail in this
particular Section are in addition to the provisions laid down under Section 438 of the Code
of Criminal Procedure (CrPC), 1973.

In Section 24 of the NDPS Act, it is stated that whoever engages in or controls any trade
whereby a narcotic drug or a psychotropic substance is obtained outside India and supplied to
any person outside India without the previous authorisation of the Central Government or
otherwise than in accordance with the conditions (if any) of such authorisation granted under
section 12, shall be punishable with rigorous imprisonment for a term which shall not be less
than ten years but which may extend to twenty years and shall also be liable to fine which
shall not be less than one lakh rupees but may extend to two lakh rupees; Provided that the
court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh
rupees.

In the instant case, the Counsel for the Respondents humbly requests that Mr. X’s application
for anticipatory bail may be rejected as it attracts obstruction arising out of Section 37 of the
NDPS Act, 1985. An exorbitant quantity of 5 Kilograms of Cocaine was found in posession
of the men hired directly under Mr.X, in a ship under his direct ownership in his owned port.

Instance to be stated by the Respondents “ The NCB received an information that in one of
the ports owned by Mr. X a ship carrying illegal contraband will reach the dockyard on 15th
January 2022. The information was reduced to writing and since then NCB constantly
monitored the activities on the ports and on the opportune day the NCB raided the ports and
the concerned ship was found. The officers found in the possession of the ship- personnel 5
kg. of illegal cocaine and were immediately brought to custody for interrogation.” It is to be
duely considered that earlier this year similar information had been received by the NCB that
MR. X was using his ports to export and transport drugs to different countries and even in
different states of Indiana. Further; the influential personality of Mr. X and the
communication he posesses links with neighboring countries like Pakistan, Afghanistan,
Bangladesh and Nepal is also to be questioned. It is indeed known to the society that

The Counsel for the Respondents anticipates that the State authorities may invoke the strict
provisions of the NDPS Act, 1985, for an alleged offence related to 5 Kilograms of Cocaine
which were confiscated at the Port owned by Mr. X, in this offence on which the Petitioner
has direct involvement. The Counsel for Respondents would like to put forward the humble
request based on hope for social good that such trade of narcotic substances are hindrance to
the growth of society of Indiana’s citizen; the Anticipatory Bail Applicationt of Mr. X may
kindly be disgarded for due course of an adequate enquiry from

The Counsel for the Respondents humbly submits the case of Ashish versus State of
Maharashtra9, Criminal Application (ABA) No. 732 of 2020, the Supreme Court addressed
an application for anticipatory bail filed by Ashish, who was facing charges under sections
21(k) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The
court examined section 37 of the NDPS Act, which mandates that those accused of certain
serious drug-related offenses, including those involving commercial quantities, shall not be
granted bail unless the court is convinced of their innocence and that they are unlikely to
commit further offenses while on bail.

The court clarified that "bail" in section 37 includes anticipatory bail. The court referred to a
previous case, Muraleedharan v. State of Kerala, to emphasize the importance of custodial
interrogation in drug-related cases and the necessity to prevent misuse of anticipatory bail
provisions.

The prosecution's case involved the seizure of drugs from co-accused individuals, with one of
them implicating Ashish. Ashish claimed to be a police informer and argued that he was
framed. However, the prosecution presented evidence showing Ashish's frequent contact with
the main accused and his presence near the raid location, undermining his claims.

The court emphasized that at the stage of anticipatory bail, there must be more than a prima
facie case for innocence; there must be strong grounds indicating probable acquittal. Since
the investigation was ongoing, it was difficult to ascertain the truth behind conflicting claims.

9
Ashish v. State of Maharashtra, 2020 SCC OnLine Bom 11318
The court also directed the prosecution to interact with the Deputy Commissioner of Police
(Crime) to verify the evidence personally.

Based on the evidence presented and verified, the court concluded that there were reasonable
grounds to believe in Ashish's involvement in the crime. Thus, the application for anticipatory
bail was dismissed.

The Counsel for the Respondents humbly adds to the submission the case Muraleedharan v.
State of Kerala10 The appellant, described as a significant figure in serious crimes including
one under the Kerala Abkari Act, obtained anticipatory bail orders from the Sessions Judge in
Pathanamthitta. However, the High Court of Kerala swiftly overturned these orders, leading
to an appeal in the Supreme Court.

The background involves a tragic liquor incident in Kollam District, Kerala, resulting in
deaths and permanent incapacitation. Many suspects remain in custody due to the denial of
bail. Fearing arrest in connection with these cases, the appellant sought anticipatory bail from
the Sessions Court and was granted it despite objections from the Public Prosecutor.

The Sessions Judge's decision to grant bail was criticized for its flippant reasoning and failure
to recognize the seriousness of the offences involved. Notably, the judge relied solely on the
confessional statement of a co-accused, disregarding the stringent bail restrictions imposed by
the legislature.

The Court emphasized the necessity of custodial interrogation in cases of grave crimes to
uncover all links in criminal conspiracies. It condemned the Sessions Judge's presumption
that no additional evidence could be collected by the investigating agency to connect the
appellant to the crime, highlighting the potential misuse of discretion conferred on Sessions
Judges.

The Supreme Court ultimately upheld the High Court's decision to reverse the anticipatory
bail orders, denying the appellant's attempt to evade arrest. This decision aligns with previous
rulings emphasizing the importance of adhering to bail conditions, particularly in cases
involving serious offences.

10
Muraleedharan v. State of Kerala, (2001) 4 SCC 638
 PRAYER

In the lights of issues raised, arguments advanced and authorities cited, it is most humbly
submitted that the court may please adjudge and declare that:

1. The petition filed by the Petitioners, Mr. Y, Mr. X and Mr. Y under Article 32 and
Article 136 (1) of the Constitution of Indiana are maintainable.
2. The punishment prescribed by the High Court of Kumbai against Petitioner, Mr. Y
under the NDPS Act of 1985 to be held invalid. The presumption under Section 35
of the NDPS Act, 1985 also to be held invalid.
3. The punishment prescribed under Section 65 (b) and Section 65 (e) of the
Maharashtra Prohibition Act, 1949 are violative of the Article 29 of the
Constitution of Indiana is invalid and hence the Petitioner Mr. Z. to be set free.
4. The Section 37 of the NDPS Act, 1985 bars the application of Section 483 of the
Code of Criminal Procedure, 1973, and hence invalid.

AND/OR

pass any other order, writ or directions that this Hon'ble Court deems fit in the interest of
justice, equity and good faith.

Place:

Date:

Respectfully submitted on behalf of the Petitioners

SD/-