ADVOCATE P.

SHIVAJI SHETTY MEMORIAL 7th NATIONAL MOOT COURT COMPETITION -

2023 TC2440

BEFORE THE HON’BLE SUPREME COURT OF SINDHU

ORIGINAL JURISDICTION

(UNDER ARTICLE 32 OF THE CONSTITUTION OF SINDHU)

WRIT PETITION NO. /2024

IN THE MATTER OF:

BETWEEN :

1. HERO AND ORS. ….PETITIONER

AND :

1. UNION OF SINDHU …..RESPONDENT

“MEMORIAL ON BEHALF OF THE PETITIONER”

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 TABLE OF CONTENTS

TABLE OF ABBREVIATIONS ...............................................................................................2

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

STATEMENT OF FACTS ........................................................................................................5

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

STATEMENT OF ISSUES .......................................................................................................9

SUMMARY OF ARGUMENTS.............................................................................................10

ARGUMENTS ADVANCED ............................................................................................12-29

ISSUE 1 .......................................................................................................................12
ISSUE 2 .......................................................................................................................17
ISSUE 3 .......................................................................................................................22
ISSUE 4…………………………………………………………………………...….26

PRAYER..................................................................................................................................30

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 LIST OF ABBREVIATIONS

SL. NO ABBREVIATION FULL FORM

1 AIR All India Reporter
2 & And
3 ART Article
4 CPC Civil Procedure Code

5 Cr.P.C Criminal Procedure Code

6 Hon’ble Honourable
7 In Re In Reference
8 IPC Indian Penal COde
9 LJ Law Journal
10 Ltd. Limited
11 CCL Children in Conflict with the Law
12 No. Number
13 Para Paragraph
14 Pvt. Private
15 QB Queen’s Bench
16 SC Supreme Court
17 SCC Supreme Court Cases
18 SCJ Supreme Court Journal
19 SCR. Supreme Court Reporter
20 Sec. Section
21 SLP Special Leave Petition
22 Supp Supplement
23 u/s Under Section
24 JJP Juvenile Justice Panel
25 UKSC United Kingdom Supreme Court
26 v Versus
27 Vol. Volume
28 WP Writ Petition

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 INDEX OF AUTHORITIES
INDIAN CASES

 Ganga Kumar Srivastava v. State of Bihar (2005) 6 SCC 211.

 State of Punjab v. Balbir Singh 1994 (3) SCC 299.
 Krishna Kanwar v. State of Rajasthan, (2004) 2 SCC 608
 M. Prabhulal v. Directorate of Revenue Intelligence, (2003) 8 SCC 449.
 Chhunna v. State of M.P (2002) 9 SCC 363.
 Kishan Chand v. State of Haryana (2013) 2 SCC 502.

FOREIGN CASES: -

STATUTES REFERRED: -

 The Constitution of India, 1950.

 The Code of Civil Procedure, 1908.
 The Code of Criminal Procedure, 1973.
 The Indian Penal Code, 1860.
 The Juvenile Justice Act, 2015

LEGAL DICTIONARIES:

 Aiyer P.R., Advanced Law Lexicon, (3rd ed., 2005).

 Garner B.A., Black’s Law Dictionary, (9th ed., 2009).
 Greenberg Daniel, Stroud’s Judicial Dictionary of Words and Phrases, (4th ed.),
Sweet and Maxwell, Vol. 4.
 Mish F.C., Merriam-Webster's Collegiate Dictionary, (11th ed. 2003).

BOOKS REFERRED: -

 Dr. J.N. Pandey, Dr. Surendra Sahai Srivastava (ed.), Constitutional Law of India
(Central Law Agency)
 Dr. Narendra Kumar, Constitutional Law of India (Allahabad Law Agency, 9th
Edition, Re. 2016)
 K.D. Gaur, Textbook on I.P.C. (Universal Law Publications, 6th Edition, 2016)
 P.S.A. Pillai, Dr. K. I. Vibhute, Criminal Law (Lexis Nexis, 12th Edition, Re. 2016).

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  Ratan Lal & Dhiraj Lal, I.P.C. (Lexis Nexis, Nagpur, 30th ED., 2008)
 Ratan Lal & Dhiraj Lal, the Code of Criminal Procedure (Lexis Nexis, 22nd Edition,
2017)
 S.N. Mishra, the Code of Criminal Procedure, 1973 (Central Law Publications, 20th
Edition, 2016)
 Surya Narayan Mishra, Shrinvas Gupta (ed.), (Central Law Agency, Allahabad, 20th
Edi, 2016).

DATABASE REFERRED: -

 http://www.judis.nic.in
 http://www.lexisnexis.com
 http://www.manupatra.com
 https://journalsofindia.com

JOURNALS REFERRED: -

 All India Reporters.

 Indian Law Reporter.

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 STATEMENT OF FACTS

OVERVIEW OF SINDHU

Sindhu, situated in South East Asia, is a developing economy recognized for hosting the G-20 Summit in its
capital, Rangena. The nation is party to various treaties and conventions pertaining to human rights.
Notably, the Constitution of Sindhu is distinguished as the lengthiest constitution worldwide.
THE TRAGIC INCIDENT OF DECEMBER 16, 2012
A horrifying crime shook Rangena, the capital of Sindhu, on December 16, 2012. A 23-year-old
physiotherapy intern was brutally beaten, gang-raped, and tortured aboard a private bus she was traveling in
with her male friend. The assault, perpetrated by six individuals one of which was a minor, including the
driver, resulted in her being rushed to a hospital in Rangena and later transferred to Singapore for treatment.
Unfortunately, she succumbed to her injuries on December 29, 2012.
The incident sparked widespread national and international condemnation, triggering public protests against
the perceived failure of the state and central governments to ensure women's safety. Rangena witnessed
thousands of protesters clashing with security forces in demonstrations demanding better security measures.

REFORMS FOLLOWING THE INCIDENT

In response to the tragedy, significant changes were made to both the Criminal Justice System and the
Juvenile Justice System. The Criminal Amendment Act of 2013, enacted by Parliament and receiving
Presidential Assent on April 2, 2013, addressed some of these concerns. Similarly, the Juvenile Justice Act
of 2015 aimed to revamp the juvenile justice framework.

CHALLENGES SURROUNDING THE JUVENILE JUSTICE AMENDMENT BILL, 2021

On July 28, 2021, the Sindhu government passed the Juvenile Justice Amendment Bill, 2021, amending
existing child protection laws. However, experts in child protection criticized the bill for reclassifying
certain serious offenses as non-cognizable under the Juvenile Justice Act, 2015. Despite receiving
Presidential assent on August 7, 2021, the bill was not immediately notified. Various stakeholders,
including five State Commissions of Protection of Child Rights, child experts, and NGOs, expressed
opposition to the Juvenile Justice Amendment. They wrote to the President urging non-implementation and
organized public conferences to highlight their concerns. Nevertheless, the bill was eventually notified and
came into effect on September 1, 2022.

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 JUSTICE LAWLAND'S OBSERVATIONS

Retired Supreme Court Judge Justice Lawland encountered distressing scenes involving children engaged in
substance abuse and drug trafficking. He highlighted these issues in a newspaper article, drawing attention
to governmental inaction. He wrote an article in a prominent daily newspaper „Daily Life‟ on 10th
September 2022 detailing the issue, and inefficiency of the Government and the authorities to do anything.
The same is taken into cognizance by the Rangena Commission for Protection of Child Rights, and a notice
is directed to the Assistant Commissioner of Police, South Rangena to inquire into the matter.

LAW ENFORCEMENT ACTIONS

On October 11, 2022, the Station House Officer of Indica Colony in South Rangena received a tip-off
regarding handlers allegedly using children for smuggling narcotics. Acting on the information, a raid was
conducted, resulting in the discovery of 1035 bottles of Phensedyl Cough Syrup, each containing 100 ml
with Codeine content.
During the raid, one person was arrested under Section 21(c) of the Narcotics and Psychotropic Substances
Act, 1985. However, a child present at the premises fled, injuring several policemen in the process. After 17

days, the child was apprehended from a factory hideout by the Special Staff Team of Rangena Police and
presented before the Juvenile Justice Board. The board declared the child as "in conflict with the law”.

FURTHER PROCEEDINGS
Following the preliminary assessment under the Juvenile Justice Act, 2015, the Juvenile Justice Board
unanimously decided to treat the child as an adult. This decision was made based on the child's perceived
maturity, capacity to commit the crime, and understanding of its consequences. Consequently, the board
ordered that the child be tried by the Sessions Court as an adult, given the absence of a Children's Court.

ACTION BY HERO
Meanwhile, during the trial proceedings, the accused, named 'Hero,' filed a petition under Section 482 of the
Criminal Procedure Code (CrPC) in the High Court of Rangena seeking to quash the FIR. The High Court
dismissed the petition, citing the establishment of a prima facie case against the accused. Subsequently,
'Hero' approached the Supreme Court through a Special Leave Petition (SLP) numbered as SLP (Criminal)
No. 3673/2023, challenging the High Court's dismissal.

ACTION BY RINGO
Aggrieved by the decision of the Juvenile Justice Board, the child in conflict with the law, referred to as
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'Ringo' (name changed), directly challenged the board's order before the Supreme Court of Sindhu. 'Ringo'
filed a Special Leave Petition registered as SLP (Criminal) No. 3927/2023, alleging that their rights under
the Juvenile Justice Act were violated during the assessment process.

ACTION BY COMMISSION
Meanwhile, the Rangena Commission for Protection of Child Rights filed a Writ Petition (Criminal) No.
3968/2023 before the Honorable Supreme Court under Article 32. The petition challenges the validity of the
'Preliminary Assessment' process under Section 15 of the Juvenile Justice Act. The Commission argues that
the preliminary assessment serves as a means to extract confessions from children, thus violating their right
against self-incrimination as guaranteed under Article 20(3) of the Constitution of Sindhu.

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 STATEMENT OF JURISDICTION
The counsel for the Petitioners most respectfully showeth

The Counsel For The Petitioner, Hero & Ors. , Hereby Humbly Submit To This
Hon’ble Court’s Jurisdiction Under Article 136 & Article 32 Of The Constitution Of
Union Of India.

ARTICLE 32 OF THE CONSTITUTION OF SINDHU

Article 32. Remedies for enforcement of rights conferred by this Part

(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 may be appropriate, for the enforcement of any of the rights conferred by this
Part…

ARTICLE 136 OF THE CONSTITUTION OF SINDHU

Article 136. Special leave to appeal by the Supreme Court
(1)Not withstanding 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.

THEREBY THE PETITIONERS SUBMIT THIS PETITION WHICH SETS FORTH THE
FACTS AND THE LAWS ON WHICH THE CLAIMS ARE BASED
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 STATEMENT OF ISSUES

ISSUE 1

1. WHETHER THE PRESENT SLP AND THE WRIT PETITION IS

MAINTAINABLE BEFORE THIS COURT?

ISSUE 2

2. CAN THE FIR REGISTERED AGAINST THE ACCUSED BE QUASHED IN

AFORESAID FACTS AND CIRCUMSTANCES OF THE CASE?

ISSUE 3

3. WHETHER THE ‘PRELIMINARY ASSESSMENT’ CONDUCTED UNDER

SECTION 15 OF THE JUVENILE JUSTICE ACT, 2015 IS VIOLATIVE OF
ARTICLE 20 (3) OF THE CONSTITUTION?

ISSUE 4

4. WHETHER THE ‘PRELIMINARY ASSESSMENT’ CONDUCTED UNDER

SECTION 15 OF THE JUVENILE JUSTICE ACT, 2015 IS VIOLATIVE OF
SECTION 3 OF THE JUVENILE JUSTICE ACT, 2015?

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 SUMMARY OF ARGUMENTS

ISSUE 1

1. WHETHER THE PRESENT SLP AND THE WRIT PETITION IS

MAINTAINABLE BEFORE THIS COURT?

It is submitted to this Hon’ble Court that the present SLP1 and Writ Petition2 are
maintainable before this Court on the following grounds.

 Circumstances to exercise powers under Article 136

 Violation of the Fundamental rights guaranteed in Sindhu.

ISSUE 2

2. WHETHER THE ‘PRELIMINARY ASSESSMENT’ CONDUCTED UNDER

SECTION 15 OF THE JUVENILE JUSTICE ACT, 2015 IS VIOLATIVE OF
ARTICLE 20 (3) OF THE CONSTITUTION?

‘Preliminary Assessment’ conducted under Section 15 of the Juvenile Justice Act,

2015 is violative of Article 20 (3) of the Constitution and the petitioner would like to
plead the arguments as follows:

 Jurisprudential Background of Punishment and Presumption of Guilt

 Presumption of Bias
 Non Consideration of Article 20(3)

ISSUE 3

3. WHETHER THE ‘PRELIMINARY ASSESSMENT’ CONDUCTED UNDER

SECTION 15 OF THE JUVENILE JUSTICE ACT, 2015 IS VIOLATIVE OF
SECTION 3 OF THE JUVENILE JUSTICE ACT, 2015?

It is submitted to the Hon’ble Bench that the t ‘Preliminary Assessment’ conducted

under Section 15 of the Juvenile Justice Act, 2015 is violative of Section 3 of the
Juvenile Justice Act, 2015, on grounds of consideration that:

 Can and Should a Juvenile be tried as an Adult?

 Is there a dichotomy between the Rule and the Standard; and has it
been addressed?

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 ISSUE 4

4. CAN THE FIR REGISTERED AGAINST THE ACCUSED BE QUASHED IN

AFORESAID FACTS AND CIRCUMSTANCES OF THE CASE?

 Quashing the FIR is sought, contending that an unfair NDPS case

investigation undermines the constitutionally guaranteed fair trial (Article 21).

 Stresses the potential bias when the investigating officer is also the
complainant, emphasizing the need for an impartial process to uphold the
accused's rights.

 Argues that compliance with Sec. 42 of the NDPS Act is crucial to protect
suspects against false implications, as failure may vitiate the search and trial,
compromising the right to a fair investigation and trial under Article 21.

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 ARGUMENTS ADVANCED

ISSUE 1

1. WHETHER THE PRESENT SLP AND THE WRIT PETITION IS

MAINTAINABLE BEFORE THIS COURT?

It is submitted to this Hon’ble Court that the present SLP3 and Writ Petition4 are maintainable
before this Court on the following grounds.

 Circumstances to exercise powers under Article 136

 Violation of the Fundamental rights guaranteed in Sindhu.

CIRCUMSTANCES TO EXERCISE POWE

RSUNDER ARTICLE 136
In the instant case, the circumstances to exercise powers under Article 136 are evidently
available and the set of events for such exercise of powers are as follows5:

 The powers of this Court under Article 136 6 of the Constitution are very wide but in
criminal appeals this Court does not interfere with the concurrent findings of fact save
in exceptional circumstances.
 It is open to this Court to interfere with the findings of fact given by the High Court, if
the High Court has acted perversely or otherwise improperly.
 It is open to this Court to invoke the power under Article 136 only in very exceptional
circumstances as and when a question of law of general public importance arises or a
decision shocks the conscience of the Court.
 When the evidence adduced by the prosecution falls short of the test of reliability and
acceptability and as such it is highly unsafe to act upon it.
 Where the appreciation of evidence and finding is vitiated by any error of law of
procedure or found contrary to the principles of natural justice, errors of record and
misreading of the evidence, or where the conclusions of the High Court are manifestly
perverse and unsupportable from the evidence on record.

3
Moot Proposition – para 12 and 13.
4
Moot Proposition – para 14.
5
Ganga Kumar Srivastava v. State of Bihar (2005) 6 SCC 211.
6
The Constitution of India – art.136.

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The brief description of procedure is enshrined under Sec. 42 7, and Sec. 508 of the Narcotic
Drugs and Psychotropic Substances (NDPS) Act, 1985 and states that in the context in which
the right had been conferred to the accused, it must naturally be presumed that it is imperative
on the part of the officer to inform the person to be searched of his right that if he so requires
he shall be searched before a gazetted officer or Magistrate and on such request being made
by him, to be taken before the gazetted officer or Magistrate for further proceedings.

The reasoning given in Balbir Singh case9 was that to afford an opportunity to the person to
be searched “if he so requires to be searched before a gazetted officer or a Magistrate” he
must be made aware of that right and that could be done only by the empowered officer by
informing him of the existence of that right. The Court went on to hold that failure to inform
the person to be searched of that right and if he so requires, failure to take him to the gazetted
officer or the Magistrate, would mean non-compliance with the provisions of Section 50
which in turn would “affect the prosecution case and vitiate the trial.

Sec 42 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 may be
understood in following manner:

 The above provision pertains only to the search of buildings conveyances and
enclosed places.10
 Officer empowered under Section 41(2) having reasonable belief owing receipt of an
information or from his personal knowledge regarding commission of an offence
under the Act has a right to conduct search in the manner prescribed in the provision
after recording the information received in writing and obtaining authorization in the
manner prescribed under the Act.
 If the officer has reason to believe that an authorization cannot be obtained as same
would lead to affording of an opportunity to accused to conceal material evidence, the
officer may conduct search without authorization after duly recording such reasons to
believe.
 Information received or reasons to believe for not obtaining an authorization must be
sent to a designated senior officer within 72 hours of recording the same.

7
Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 – sec 42.
8
Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 – sec 50.
9
State of Punjab v. Balbir Singh 1994 (3) SCC 299.
10
Krishna Kanwar v. State of Rajasthan, (2004) 2 SCC 608.

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The Supreme Court at numerous occasions has held the following with regard to Section 42
of the Act:

 Compliances under Section 42 of the Act are mandatory in nature.11

 Non-compliance with the conditions contained therein can lead to serious

repercussions such as vitiation of the search conducted, and the trial held.12
 The purpose of this provision is to provide due protection to a suspect against false
implication.13

In the instant case, the procedure for search and seizure has not been in compliance with Sec
42 and Sec 50 the NDPS Act, 1985 and the prosecution has vitiated the trial proceedings
from the beginning. The fact that the High Court of Rangena has not taken into consideration
the material facts for the quashing of First Information Report under Sec 482, Cr.P.C invites
the attention of this Hon’ble Court to exercise powers under Art 136.

SUBSTANTIAL VIOLATION O
FRULE OF LAW
In the instant case, the impugned legislation (The Juvenile Justice (Amendment) Act, 2021)
deviates from the basic principles of Rule of Law by violating the fundamental rights
guaranteed in the Constitution. The impugned legislation codifies manifest
arbitrariness, chauvinistic notions of family and breaches the innermost zone of
privacy by criminalizing the act of adultery.

1.2.1 In the instant case, prima facie, the categorization of ‘serious offences’ from
‘cognizable’ to non-cognizable is manifestly arbitrary and violative of the
guiding principles for the administration of JJ Act, 2015, which are enshrined
in Chapter 2, Section 314 of the Act. The said principles are as follows:

 Principle of presumption of Innocence

 Principle of dignity and worth

 Principle of participation

 Principle of best interest

11
M. Prabhulal v. Directorate of Revenue Intelligence, (2003) 8 SCC 449.
12
Chhunna v. State of M.P (2002) 9 SCC 363.
13
Kishan Chand v. State of Haryana (2013) 2 SCC 502.
14
The Juvenile Justice (Care and Protection of Children) Act, 2015 – sec 3.
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  Principle of family responsibility
 Principle of safety
 Positive measures
 Principle of non-stigmatizing semantics
 Principle of non-waiver of rights
 Principle of equality and non-discrimination
 Principle of right to privacy and confidentiality
 Principle of institutionalization as a measure of last resort
 Principle of repatriation and restore ration.
 Principle of fresh start
 Principle of diversion
 Principles of natural justice.

Doli Incapax: The underlying jurisprudence of Section 3 of the said act emanates from the
Latin Maxim doli incapax. Doli incapax is a Latin legal maxim which translates as "unable to
do any harm or commit a crime." It is assumed that a child is incapable of developing the
essential criminal intent to commit a crime.

The maxim is founded on the following reasoning/principles:

 A person is only legally accountable for activities that he intends to perform.

 A kid under the age of seven does not have adequate mental knowledge to understand
the implications of his acts, and hence lacks the criminal intention/mens rea required
to convict someone of an offence. At such a young age, a child must be shielded from
the rigours of the law.

The provisions impugned are those of a statute whose language authorized the class
legislations and its inherent restrictions which could be constitutional in certain
circumstances and unconstitutional in others. 15 In such a context, it was said that where a
law purports to authorize the class legislation and imposition of restrictions on a
fundamental right in language wide enough to cover restrictions both within and without
the limits of constitutionally permissible legislative action affecting such right, it is not
possible to uphold it even so far as it may “be applied” within the constitutional limits, as
it is not severable; so long as the possibility of its being applied for purposes not
sanctioned

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15
Romesh Thapar v. State of Madras (1950) SCC 436.

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 by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and
void. 16

Rule of law is one of the primal principles that are indicative of foundational well-being
of any state. There is an element of assurance that is deeply inherent in the concept of rule
of law. A state where rule of law is “protected and promoted” is also taken to be a state
where people are assured of their basic rights. The Rule of Law inspires loyalty among
citizens if it is respected by the government. Rule of Law are deficient if they are not just,
understandable, and responsive to the needs of society. If a lawyer believes that the
existence or absence of a rule of law, substantive or procedural, causes or contributes to
an unjust result, he should endeavour by lawful means to obtain appropriate changes in
the law. He should encourage the simplification of laws and the repeal or amendment of
laws that are outmoded 17.

Therefore, it is humbly submitted that the impugned legislation contributes to an unjust result,
where the fundamental rights guaranteed by the Constitution are violated in full public view.

16
Ram Manohar Lohia v. State of Bihar and Anr. (1966) 1 SCR 709.
17
Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1217 (1958).

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 ISSUE 2

2. WHETHER THE ‘PRELIMINARY ASSESSMENT’ CONDUCTED UNDER

SECTION 15 OF THE JUVENILE JUSTICE ACT, 2015 IS VIOLATIVE OF
ARTICLE 20 (3) OF THE CONSTITUTION?

2.1 It is humbly submitted that the ‘Preliminary Assessment’ conducted under Section 15
of the Juvenile Justice Act, 2015 is violative of Article 20 (3) of the Constitution and
the petitioner would like to plead the arguments as follows:

 Jurisprudential Background of Punishment and Presumption of Guilt

 Presumption of Bias
 Non Consideration of Article 20(3)

2.2 JURISPRUDENTIAL BACKGROUND OF PUNISHMENT AND PRESUMPTION

OF GUILT: A satisfactory definition of crime embraces many acts and omissions,
which are criminal and which will at the same time extrude all those acts and
emissions which are not.18 Ordinarily, crime is a wrong which affects the security or
well-being of the public, generally, so that the public has an interest in its suppression.
A crime is frequently a moral wrong in that it amounts to conduct which is inimical to
the general moral sense of the community.19

1. An act may be prohibited or commanded by a statute in such a manner that

the person contravening the provision is liable to a pecuniary penalty
which is recoverable as a civil debt. In other words, an act prohibited or
commanded by a statute constitutes a criminal liability if the person
contravening the provision is liable to a penalty which is irrecoverable as a
civil debt.20
2. Section 2(35) of the Juvenile justice act 2015 define Juvenile as a child
below the age of 18 years, inter fitting the word Juvenile literally imply
that person who has not completed the age of 18 years shall be construed
as a juvenile. alternatively, a person who has completed the age of 18
years shall not be construed as a juvenile.

18
Mann v. Owen (1829) 9 B&C 595.
19
Sherras v. De Rutzen (1895) 1 QB 918.
20
Brown v. Allweather Mechanical Grouting Co. Ltd. (1954) 2 QB 443

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 3. The social context of the passing of the said act by the Legislature is a
pivotal importance understanding the purpose and intent of the act.
Juvenile delinquency is a major sociological problem and reformative
approach towards penalising Juvenile delinquency is the only way to
tackle the menace of children committing serious crimes. Therefore,
Section 2(13)21 of the JJ Act, 2015 defines ‘child in conflict with law’ as a
child who is alleged or found to have committed an offence and who has
not completed 18 years of age on the date of commission of such offence.
4. Upon literal interpretation of the statute regarding the definition of
‘Juvenile’ and ‘child in conflict with law’, we can infer that there is a
blanket immunity of absolute criminal liability for any person who has not
completed 18 years of age. Henceforth, the purpose of the said statute is
defeated in the literal interpretations22.

2.3 PRESUMPTION OF BIAS: The punishment of juveniles in the adult criminal justice
system is damaging and inappropriate 23. It is a general precedential notion that no
individual younger than the age of 18 is legally allowed to be sentenced to heinous
punishments24. In case of a heinous offence alleged to have been committed by a child
who has completed or is above the age of sixteen years, the Board is given the powers
to conduct a preliminary assessment with regard to determination of his mental and
physical capacity to commit such offence. The Preliminary Assignment in the
particular instance, may take the assistance of experienced psychologists or psycho-
social workers or other experts to determine the same. In order to do such a
preliminary assessment, the Board may take the assistance of experienced
psychologists or psycho- social workers experts or other experts. By that itself, it
cannot be construed that the
J.J. Board under all circumstances of the case and necessarily take the assistance of
the experts. If the materials placed before the J.J. Board and the circumstances of the
case themselves helps it to arrive at a proper assessment, then, non-taking of
any

21
The Juvenile Justice (Care and Protection of Children) Act, 2015 – Sec 2(13).

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22
Ashwini Kumar v. State of Madhya Pradesh (2012) 9 SCC 750.
23
Watkins, 2008
24
Roper v. Simmons, 2005

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 experts opinion or non-taking the assistance of any expert would not take away the
validity of its opinion or finding25.

The issue with this, may be determined by matter of perspectives, by the interpretation
of the word ‘may’. If there was consultation of any psychiatrist or psychologist, and
there was heavy reliance upon the reports of the same, can such a report be deemed
completely valid is the question that needs to be answered. A reference can be made
towards a similar Question of Action, where there was a matter up before the court,
about the validity of suspension of an officer on grounds of report of a committee. If
the Government chooses to make any decision on the basis of the findings of the
Central Vigilance Committee, then there would be a possibility of presumption of
Bias, as the government may have subconsciously presumed a person to be
innocent/guilty according to the reports. But at the same time, if the government
chooses not to rely upon such findings, it would render the establishment of the very
committee useless26. The methods used to assess competence are exceedingly
subjective, and the proper judgement is not always made. Going on with purely
evaluation for knowing the child is guilty will result in further issues27.

2.4 NON-CONSIDERATION OF ARTICLE 20(3): The preliminary assessment is not

intended to elicit a confession from the child or to arrive at a conclusive determination
regarding the child's culpability, regardless of any information provided in the Social
Investigation Report or through other interactions. Reliance on any confession
obtained from the child is inconsistent with the constitutional right against self-
incrimination as guaranteed under Article 20(3) of the Constitution of India.
Consequently, there exists a categorical prohibition on the utilization of any material,
in any format, whether presented consciously or inadvertently, before the Juvenile
Justice Board, for instance, By using words such as “clever” and reading the alleged
confession against him being a complete violation of Article 20(3), the Board has
clearly gone contrary to the principle of presumption of innocence provided
under section 3(i) of the Act, 2015 read with rule 10A(3) Model Rules and section
3(viii) which

25
H.S. Poornesh v. State by Mallandur Police, CRL.RP 327/2020
26
Sumith Kumar vs State of West Bengal
24 | M E M O R I A L F O R P E T I T I O N E R
27
Bachpan Bachao Andolan v. Union of India (2017) 1 SCC 653.

25 | M E M O R I A L F O R P E T I T I O N E R
 mandates that there shall be no adversarial or accusatory words used in involving a
child28.

The same has also been observed by the High Court of Delhi in the order dated 19
September 202229, wherein the Court stated its concerns regarding how the Social
Investigation Report (SIR) and Preliminary Assessment Report is not to be used
against the child in conflict with law.

Para 3. …the questionnaire at Sl. Nos. 42 and 43 in Form No. 6 which relates to
preparation of Social Investigation Report (in short SIR) for children in conflict with
law under Section 8 of the Juvenile Justice (Care and Protection) ofChildren Act (in
short, the J.J. Act) is incorrect as a presumption is raised at the pre-trial stage itself
that the child has committed the offence for the reason it note in Sl. No. 42.

Para 4. Learned counsel appearing on behalf of the NGO/HAQ, Intervener in the

CRL.Ref 3/2016 has placed before us, a copy of the preliminary assessment report
prepared by a psychologist in the format supplied by the Department. Under Clause 3
of the said report, it can be clearly noted that a confession is sought to be extracted
from the child as to the manner in which the offence was committed and the reasons
thereof This manner of seeking a confession from the child is unconstitutional and
beyond the scope of a report of. preliminary assessment to be prepared under Section
15 of the J.J. Act. "

Therefore, the preliminary assessment is not a tool or the process to extract

confession. It would be a miscarriage of justice and violative of constitutionally
recognised principles to do so. It must further be noted that since it is not a trial, few
principles immediately emerge. They are:

a. The Preliminary Assessment cannot be a tool to make comments, or draw

conclusions or inference about the merits of the case or the guilt of the child.

b. There cannot be an adversarial approach from the State, and the prosecutor. Any
such approach adopted would defeat the purpose, contradictory to the section 15 of
the JJ Act, and repeated clarifications from different High Courts.

28
Barun Chandra Thakur vs Master Bholu and Anr CRIMINAL APPEAL NO.950/2022
29
Vikas Sangwan vs State, CRL. REV.P. 696/2018

26 | M E M O R I A L F O R P E T I T I O N E R
 c. Limited reliance on prosecution documents: The Board can rely on the First
Information Report (FIR) and the Preliminary Inquiry Report (PIR) only to the limited
extent that they enable the Boards to examine whether the offence alleged is of
heinous nature so as to decide the very applicability of the section 15 of the JJ Act.

27 | M E M O R I A L F O R P E T I T I O N E R
 ISSUE 3

3. WHETHER THE ‘PRELIMINARY ASSESSMENT’ CONDUCTED UNDER

SECTION 15 OF THE JUVENILE JUSTICE ACT, 2015 IS VIOLATIVE OF
SECTION 3 OF THE JUVENILE JUSTICE ACT, 2015?

3.1 It is submitted to the Hon’ble Bench that the the ‘Preliminary Assessment’ conducted
under Section 15 of the Juvenile Justice Act, 2015 is violative of Section 3 of the
Juvenile Justice Act, 2015. Even if it may be legally put forth that there are enough
safeguards under Section 3 of the JJ Amendment Act, 2015, for the protection and
safeguard of juveniles under this provision, these principles are mere magic words,
explained thereto by the Hagerstrom’s Concept of Magic Words30.

3.2 There are two factors that must have been taken into consideration prior to any form
of punishment that is given to juveniles. They are:

 Can and Should a Juvenile be tried as an Adult?

 Is there a dichotomy between the Rule and the Standard; and has it
been addressed?

CA N A N D S H O U L D A J U V E N I L E B E T R I E D A S A N A D U L T U /
S18 OF JUVENILE JUSTICE ACT?

3.2.1 Both, the Juvenile Justice Act31, and the subsequent Juvenile Justice Model
Rules, 201632 provide that both the Children's Court and the Juvenile Justice
Board should proceed with a presumption of innocence. Ironically, the
presumption is weakened by the necessity for the Juvenile Justice Board (JJB)
to evaluate the child's comprehension and capability to engage in the alleged
offense when determining the trial procedure33. The JJB is also required to

30
Hagerstrom's concept of magic in legal or in language: Lloyd's Introduction to Jurisprudence at p. 858. He
explains that as prospective spouses are made to go through marriage ceremonies and the rituals make them
and other onlookers made to believe that the couple is now altogether different from the position before
marriage.
31
The Juvenile Justice (Care and Protection of Children) Act 2015, s 3
32
The Juvenile Justice Rules, 2016, rr 16, 17, 18, 19, and 21
33
Department-related Parliamentary Standing Committee on Human Resource Development, Submission on
the Juvenile Justice (Care and Protection of Children) Bill, 2014 by the Centre for Child and the Law (21 October
2014)

28 | M E M O R I A L F O R P E T I T I O N E R
 consider the “alleged circumstances” in which the offence was committed 34. It
is impossible to judge such capacity without going into the merits of the crime.
The capacity and understanding of a child cannot be judged unless such
decision is based on the premise of commission of the crime. This preliminary
assessment is examined by the Children's Court so as to decide whether such a
trial is justified35. This goes against the presumption of innocence, which
forms the bedrock of every trial, because the ultimate objective If justice is not
only to provide justice, but also to show that justice has been made 36. There is
another two pronged issue that haunts such Preliminary Assessment in eyes of
Sec. 3, and that is,

a) severe backlog of cases in the JJB, and

b) a lack of qualified psychologists37.

ADDRESSING THE RULES-STANDAR

DDICHOTOMY

3.2.2 The dichotomy between Rules and Standard is problematic in India, as India
is a Rule-based society38. this is because there are many provisions that allow
for a child or a minor who is a potential Juvenile delinquent to bypass the
liability under the law. Exceptions prove the rule and to achieve justice as it
protects — a majority of the minor population who are not sufficiently mature
enough. The law even recognises this mental immaturity and minors’
contracts, for instance, are treated as void, and incapable of enforcement39.

Opting for standard legal elements such as "good faith," "mala fide," and
"reasonableness" introduces the challenge of subjective interpretations. A
potential solution to this dichotomy may lie in advocating for flexible rules
that allow for sufficient discretion, coupled with limited exceptions subject to

34
The Juvenile Justice (Care and Protection of Children) Act 2015, s 15
35
The Juvenile Justice (Care and Protection of Children) Act 2015, s 19.
36
K. Anbazhagan v Superintendent of Police, AIR 2004 SC 524
37
NCRB Table A (n 102); NCRB Table B (n 102); Elsie Mishra and Ramakrishna Biswalat, ‘Reducing the Age of
Criminal Responsibility of Juvenile- A Necessary or Un-Necessary Step?’ (2018) 3 (3) International Journal of
Legal Research and Studies 31-38
38
Lloyd's Introduction to Jurisprudence, Seventh Edition, Sweet and Maxwell p.1041.
39
Mohori Bibee v. Dharmodas Ghose, 1903 SCC OnLine PC 4

29 | M E M O R I A L F O R P E T I T I O N E R
 preventive screening, such as life imprisonment with hard labor—an
essentially preventive measure.

From an economic analysis perspective, criminal law operates on the premise

that human beings are rational decision-makers who assess the cost and
benefit of their actions. Criminal law imposes an adequate cost or disutility, in
the form of punishment, for the volitional acts of rational individuals. All
human beings are born free and equal in dignity and rights, endowed with
reason and conscience40. If this declaration holds true, a separate convention
for children might be unnecessary. Children, as a distinct constitutional class,
are often victims of circumstances that shape their destinies. They lack
autonomy in the sense of following intentionalist discourse, and their choices
are not inherently reasoned or free, warranting a more considerate approach
that avoids harsh disutility.

3.3 Furthermore, another criticism of the Preliminary Assessment is the manner in which
it defines maturity. Under the present provisions, the Juvenile Justice Board (‘JJB’)
may, based on a preliminary assessment, decide to try the accused as an adult.
However, empirical research in child psychology suggests that there is no clear
manner in which the level of maturity of a CCL can be clearly determined 41. In
essence, the Juvenile Justice Board (JJB) starts without a scientific foundation for its
initial assessment. This conveys that the inclination to treat Children in Conflict with
Law (CCL) as adults is based on an incorrect presumption that there exist reliable
mechanisms for appraising the maturity of a CCL.

3.4 Another aspect is the absolute lack of procedural safeguards to CCL within the age of
sixteen to eighteen years. In addition to the absence of a scientific foundation for the
initial assessment of maturity, the legislation lacks procedural safeguards mandating
an elevated threshold of proof for trying Children in Conflict with Law (CCL) as
adults. This is an absolute necessity within the current framework due to the
normative differences that exist between CCL and adults 42. Further, some academic
scholarship suggests that JJBs, in parts of the country, have trouble in seamlessly
transferring the

40
Universal Declaration of Human Rights, Article 1
41
Rajya Sabha Report (n 29) 21; Centre for Child and the Law, ‘Critique of the Juvenile Justice (Care and
Protection of Children) Bill, 2014’ (6 May 2015) 22 (‘CCL-NLS Report’).
30 | M E M O R I A L F O R P E T I T I O N E R
42
Brink (n 9) 4

31 | M E M O R I A L F O R P E T I T I O N E R
 child to the Children's Court, which may be located at a distance from the JJB. This is
because, in practice, there is no real difference between a child court and a regular
criminal court, [ UN Committee (n 59) 20, 21.] and the purely adversarial nature of
such proceedings coupled with harsher sentences and the retention of a criminal
record can drastically reduce the scope of reformation and rehabilitation.

32 | M E M O R I A L F O R P E T I T I O N E R
 ISSUE 4

4. WHETHER THE CRIMINAL LAW (AMENDMENT) ACT, 2022 IS IN

VIOLATION OF PRINCIPLES OF EQUALITY?

4.1 It is humbly submitted that the FIR against the accused be quashed in aforesaid facts
and circumstances of the case on the following grounds.

A fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution,

would be a hollow promise if the investigation in an NDPS case were not to be fair or raises
serious questions about its fairness apparent on the face of the investigation. In the nature of
the reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of
it that the investigation was fair, judicious with no circumstances that may raise doubts about
its veracity. The obligation of proof beyond reasonable doubt will take within its ambit a fair
investigation, in the absence of which there can be no fair trial. If the investigation itself is
unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting
arbitrary powers in the police which may well lead to false implication also. Investigation in
such a case would then become an empty formality and a farce. Such an interpretation
therefore naturally has to be avoided.43

The investigation into a criminal offence must be free from objectionable features or
infirmities which may legitimately lead to a grievance on the part of the accused that
investigation was unfair and carried out with an ulterior motive. It is also the duty of the
investigating officer to conduct the investigation avoiding any kind of mischief and
harassment to any of the accused. The investigating officer should be fair and conscious so as
to rule out any possibility of fabrication of evidence and his impartial conduct must dispel
any suspicion as to its genuineness. The investigating officer ‘is not merely to bolster up a
prosecution case with such evidence as may enable the court to record a conviction but to
bring out the real unvarnished truth.44

In State of Bihar v. P.P. Sharma,45 this Court has held as under: (SCC pp. 263-65, paras 57,
59 & 61)

‘57. … Investigation is a delicate painstaking and dextrous process. Ethical conduct is

absolutely essential for investigative professionalism. … Therefore, before countenancing
such

43
Mohan Lal v. State of Punjab (2018) 17 SCC 627.
44
Babubhai v. State of Gujarat, (2010) 12 SCC 254
33 | M E M O R I A L F O R P E T I T I O N E R
45
State of Bihar v. P.P. Sharma 1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192.

34 | M E M O R I A L F O R P E T I T I O N E R
allegations of mala fides or bias it is salutary and an onerous duty and responsibility of the
court, not only to insist upon making specific and definite allegations of personal animosity
against the investigating officer at the start of the investigation but also must insist to
establish and prove them from the facts and circumstances to the satisfaction of the court.

In the instant case, it is submitted that PSI, being the complainant, himself would be an
interested person and should not have been made the investigating officer. 46 In a catena of
cases, the Supreme Court has held that there is no principle or binding authority to hold that
the moment the competent police officer, on the basis of information received, makes out an
FIR incorporating his name as the informant, he forfeits his right to investigate.47 If at all,
such investigation could only be assailed on the ground of bias or real likelihood of bias on
the part of the investigating officer.48 The question of bias would depend on the facts and
circumstances of each case and it is not proper to lay down a broad and unqualified
proposition, in the manner in which it has been done by the High Court, that whenever a
police officer proceeds to investigate after registering the FIR on his own, the investigation
would necessarily be unfair or biased.49

In the instant case, the prosecution was under the NDPS Act. There was no independent
witness. In a case of this nature, when the complainant himself is a Police Official, the
investigation should have been conducted by his top-ranking officer and the final report also
ought to have been filed by the higher official. 50 A complainant being a police officer cannot
be an investigating officer. For, in such case, the accused and the prosecution will be
deprived of their valuable rights of contradicting and corroborating, the previous information
recorded under Section 154 or 155 CrPC and previous statement of the witness, being a
police officer, complaint recorded, under Section 161 CrPC enjoined in Sections 145 and 157
of the Evidence Act and proviso of Section 162 CrPC, thus committing an incurable infirmity
and flaw by the prosecution, quite against the proposition of law.

The brief description of procedure is enshrined under Sec. 42 51, and Sec. 5052 of the Narcotic
Drugs and Psychotropic Substances (NDPS) Act, 1985 and states that in the context in which
the right had been conferred to the accused, it must naturally be presumed that it is imperative

46
Hardip Singh v. State of Punjab (2008) 8 SCC 557.
47
State v. V. Jayapaul (2004) 5 SCC 223.
48
State of Punjab v. Baldev Singh (1999) 6 SCC 369.
49
Megha Singh v. State of Haryana (1996) 11 SCC 709.
50
Naushad v. State of Kerala 2000 SCC OnLine Ker 365.
51
Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 – sec 42.
52
Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 – sec 50.

35 | M E M O R I A L F O R P E T I T I O N E R
on the part of the officer to inform the person to be searched of his right that if he so requires
he shall be searched before a gazetted officer or Magistrate and on such request being made
by him, to be taken before the gazetted officer or Magistrate for further proceedings.

The reasoning given in Balbir Singh case53 was that to afford an opportunity to the person to
be searched “if he so requires to be searched before a gazetted officer or a Magistrate” he
must be made aware of that right and that could be done only by the empowered officer by
informing him of the existence of that right. The Court went on to hold that failure to inform
the person to be searched of that right and if he so requires, failure to take him to the gazetted
officer or the Magistrate, would mean non-compliance with the provisions of Section 50
which in turn would “affect the prosecution case and vitiate the trial.

Sec 42 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 may be
understood in following manner:

 The above provision pertains only to the search of buildings conveyances and
enclosed places.54
 Officer empowered under Section 41(2) having reasonable belief owing receipt of an
information or from his personal knowledge regarding commission of an offence
under the Act has a right to conduct search in the manner prescribed in the provision
after recording the information received in writing and obtaining authorization in the
manner prescribed under the Act.
 If the officer has reason to believe that an authorization cannot be obtained as same
would lead to affording of an opportunity to accused to conceal material evidence, the
officer may conduct search without authorization after duly recording such reasons to
believe.
 Information received or reasons to believe for not obtaining an authorization must be
sent to a designated senior officer within 72 hours of recording the same.

The Supreme Court at numerous occasions has held the following with regard to Section 42
of the Act:

 Compliances under Section 42 of the Act are mandatory in nature.55

53
State of Punjab v. Balbir Singh 1994 (3) SCC 299.
54
Krishna Kanwar v. State of Rajasthan (2004) 2 SCC 608.
55
M. Prabhulal v. Directorate of Revenue Intelligence (2003) 8 SCC 449.

36 | M E M O R I A L F O R P E T I T I O N E R
  Non-compliance with the conditions contained therein can lead to serious
repercussions such as vitiation of the search conducted and the trial held.56
 The purpose of this provision is to provide due protection to a suspect against false
implication.57

The presumption that investigation officer himself is the complainant does not vitiate
proceedings under NDPS Act tantamount to holding that the FIR was a gospel truth, making
investigation an empty formality if not a farce. The right of the accused to a fair investigation
and fair trial guaranteed under Article 21 of the Constitution will stand negated in that event,
with arbitrary and uncanalised powers vested with the police in matters relating to the NDPS
Act and similar laws carrying a reverse burden of proof. An investigation is a systemic
collection of facts for the purpose of describing what occurred and explaining why it
occurred. The word systemic suggests that it is more than a whimsical process. An
investigator will collect the facts relating to the incident under investigation. The fact is a
mere information and is not synonymous with the truth.58

Therefore, it is humbly submitted that the instant case is a fit case for quashing of FIR against
the accused in the aforementioned facts and circumstances of the case.

56
Chhunna v. State of M.P (2002) 9 SCC 363.
57
Kishan Chand v. State of Haryana (2013) 2 SCC 502.
58
Supra 1.

37 | M E M O R I A L F O R P E T I T I O N E R
 PRAYER

Wherefore, in the light of the facts of the case, issues raised, arguments advanced, and
authorities cited, this Hon'ble Court may be pleased to:

1. DECLARE THAT THE FOLLOWING SLP AND THE WRIT PETITION IS

MAINTAINABLE.

2. DECLARE THAT THE ‘PRELIMINARY ASSESSMENT’ CONDUCTED

UNDER SECTION 15 OF THE JUVENILE JUSTICE ACT, 2015 IS VIOLATIVE OF
ARTICLE 20 (3) OF THE CONSTITUTION

3. DECLARE THAT THE ‘PRELIMINARY ASSESSMENT’ CONDUCTED

UNDER SECTION 15 OF THE JUVENILE JUSTICE ACT, 2015 IS VIOLATIVE OF
ARTICLE 20 (3) OF THE CONSTITUTION

4. THE FIR REGISTERED AGAINST THE ACCUSED BE QUASHED IN

AFORESAID FACTS AND CIRCUMSTANCES OF THE CASE

Or issue any other writ or direction in the interest of justice, equity, and good conscience.

This, the Counsel for the Petitioner shall be duty bound, to forever pray.

Place: Union of Sindhu S/d

Date: 27th of January 2024 (Counsel for Petitioners)

38 | M E M O R I A L F O R P E T I T I O N E R
39 | M E M O R I A L F O R P E T I T I O N E R