BENCH MEMORIAL: 3RD GURJEET SINGH MEMORIAL NATIONAL MOOT

COURT COMPETITION, 2022 (VIRTUAL)

I.OVERVIEW OF THE MOOT PROBLEM IN THE CASE OF – RAMTA JOGI & ALI BAKSH VS. UNION
OF INDRI

A brief summary/ overview of the Moot Proposition is provided as follows:

1. Ramta Jogi and Ali Baksh (“the Appellants/ Accused'') are two engineers, who resided together
in a small chawl near the city of Faizabad, Ughra Pradesh. On 20 th February, 2022 the
appellants were seen loading huge trunks containing machine guns into a truck by a 15 year
old boy. Soon, the duo were surrounded by the police and they tried to flee the scene.

2. The police found a secret basement filled with arms and ammunition and huge liquid cash.
Further investigation revealed the appellant’s links with left wing and right-wing extremist
groups to whom they had been illegally supplying weapons for the past 5 years. An FIR against
them under Sections 13, 16, 17, 18 and 21 of the Unlawful Activities Prevention Act, 1967
(“UAPA”); Section 25 of the Arms Act, 1959 read with Section 120B of the Indian Penal Code,
1860 (“IPC”).

Note: The facts, events and thus, the allegations against Ramta and Ali leading to
them being remanded to 15 days of police custody are mentioned in a detailed
manner from paragraph 3 to paragraph 7 of the Moot Proposition.

3. The Appellants provided no explanation for any of the incriminating evidence such as
huge chunks of liquid cash, crores of rupees and crypto currency in the bank account, use of the
Darkweb for illegal trading of weapons. This led the police to look into the angle of money
laundering, following which they shared the Appellant’s financials with the Directorate of
Enforcement (“ED”). Consequently, an Enforcement Case Information Report (“ECIR”) under
Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 (“PMLA”) was registered
against the Appellants (Paragraph 10-11 of the Moot Proposition). The ED also issued a notice
under Section 50 of the PMLA against Ramta and Ali.

4. The Appellants separately applied for grant of bail in qua the FIR registered by the police
of Faizabad and the ECIR registered by the ED. However, the two Special courts constituted
under UAPA and PMLA respectively rejected the bail applications citing the special twin condition
under the impugned provisions. Similarly, the High Court also, upon being approached, denied
interim bail upholding the special court’s decision of citing the special twin conditions and thus,
rejecting the grant of bail application (Paragraph 14-17 of the Moot Proposition).

5. Aggrieved, Ramta and Ali decided to file a Writ Petition under Article 32 of the
Constitution of Indri before the Supreme Court of Indri, challenging the vires of various
provisions of the PMLA and UAPA.

Based on the above, the counsels appearing for either side are expected to present their
case on the following four issues identifiable from the Moot Proposition itself namely,

i) Whether the Writ petition is Maintainable under Article 32 of the Constitution of

Indri in the instant case?

ii) Whether the Special Twin Conditions for Granting Bail are violative of Article 14
and 21 of the Constitution of Indri?

iii) Whether Section 50 of the PMLA stands violative of provisions of Indian

Evidence Act, 1872?

iv) Whether reverse burden of proof under UAPA stands violative of the
Fundamental Rights of the Accused?

II. QUESTIONS OF LAW AND ISSUES/ CIRCUMSTANCES INVOLVED

The counsels appearing for either side are expected to raise and argue, questions inter alia, the
following:

ISSUE 1: WHETHER THE WRIT PETITION IS MAINTAINABLE UNDER ARTICLE 32 OF THE

CONSTITUTION OF INDRI?

1. Violation/Non Violation of Fundamental Rights: The Appellants are expected to

argue that the impugned provisions of the Acts directly encroaches upon the “guaranteed‟
fundamental rights of the petitioners enshrined under Art. 14, 20(3) & 21 of the
Constitution of Indri. The test of reasonable restriction may be relied upon and further
argued that ‘human dignity may include the presumption that every person is innocent
until proven guilty’ (Shabnam v. UOI & Ors., (2015) 6 SCC 702). It may also be argued that
the ‘special twin condition’ under Section 43D of UAPA and Section 45 of PMLA put a
stringent restriction on the grant of bail which is a part of Art. 21. The Respondents are
 expected to argue that ‘no fundamental right is absolute’ and that the Constitution itself
restrains its absoluteness by the procedure established by the law (Air India v. Nergesh
Meerza, (1981) 4 SCC 335). They may be argue that Article 14 prohibits hostile
discrimination but not reasonable classification (Air India v. Nergesh Meerza, (1981) 4 SCC
335). Accordingly, the counsels for the respondent are expected to substantiate their
argument that the provisions of UAPA and PMLA that are hereby challenged are both
reasonable and just in their application.

2. Supreme Court’s power of Judicial Review/Presumption of Constitutionality: The

Appellants may argue the Supreme Court has an extensive original jurisdiction to test out
the constitutionality of the impugned legislations under Article 32 (L. Chandra Kumar v.
UOI & Ors., (1997) 3 SCC 261). On the other hand, to counter this, the counsels for
Respondents may rely upon the ‘Principle of Constitutionality’ (Chiranjit Lal Chowduri v.
UOI & Ors., AIR 1951 SC 41). They may place reliance on Kartar Singh v. State of Punjab /
PUCL v. Union of India, where the SC had upheld the constitutionality of TADA and
POTA, mounting importance to national security for which the Central government was
held justifiable in enacting the acts.

3. Article 32 is a fundamental Right: The Appellants may argue and thus, use to their
advantage, the fact that Article 32 being a fundamental right in itself, the court cannot
refuse to entertain or issue an appropriate writ unless it is provided by the Constitution
itself (Daryao & Ors. v. State of Uttar Pradesh, AIR 1961 SC 1457).

4. Availability of alternative remedy not a bar to seek writ under Article 32 /

Alternative remedy under article 226 not exhaustive: The Appellants while arguing
the maintainability are expected to contend on the basis that the Supreme Court cannot
refuse to entertain writ petitions merely on the ground of availability of an alternative
remedy (Romesh Thappar v. State of Madras, AIR 1950 SC 124). The Respondents may argue
that the appellants are open to pursue other remedies established under the law by
approaching the High court under Article 226 and that the constitutional validity of the
impugned provisions may be decided upon by the Hon'ble High Court (Devendra Dwivedi
v. UOI & Ors, 2021 SCC OnLine SC 221).
ISSUE 2: WHETHER THE SPECIAL TWIN CONDITIONS FOR GRANTING BAIL ARE

VIOLATIVE OF ARTICLE 14 AND 21 OF THE CONSTITUTION OF INDRI?

1. Violation of the principle of equality / Reasonable classification and satisfaction of

the twin test of reasonability: The Appellants are expected to be argued that the
expression “equality before law” means that the state has an obligatory duty to refrain from
performing any act which is discriminatory in nature (Srinivasa Theatre v. Government of Tamil
Nadu, (1992) 2 SCC 643). In the case of Nikesh Tarachand Shah v. UOI, (2018) 11 SCC 1],
the court struck down the special twin conditions holding them violative of the Art. 14
and 21 of the constitution. The appellants are expected to use the same to their advantage
while furthering their arguments. The Respondent may rely upon the case of State of West
Bengal v. Anwar Ali Sarkar (AIR 1952 SC 75), where the twin test of reasonability for
consideration of classification under article 14 was mapped out.

2. Right to speedy trial and fair grant of bail / Appropriate denial of bail: The
Appellants are expected to argue that bail shall be granted to the accused subject to certain
conditions observing that detaining undertrial prisoners for an indefinite period violates
Article 21 of the Constitution (Sanjay Chandra v. CBI, (2012) 1 SCC 40). Reliance to be
placed on various factors to be considered while granting bail. Here, several precedents are
present (Shaheen Welfare Assn. v. UOI, (1996) 2 SCC 616; State of Kerala v. Raneef, (2011) 1
SCC 784, etc.) which may be relied upon by the counsels. Further, they are expected to
argue that in the present case the petitioners have been languishing in jail for about 80 days
with the investigation still pending. The Respondents are expected to argue that the
grounds for the appellant being taken into police custody are well established and the trial
cannot be hastily adjourned simply because there is delay in proceedings. This would also
steal the right of fair trial which is also constituted under Article 21 (State of Maharashtra v.
Surendra Pundlik Gadling & Ors., (2019) 5 SCC 178, Ranjan Dwivedi v. UOI, (2012) 8 SCC
495).

3. Procedure established by law: The Respondent may argue that the petitioners have
spent less than 3 months in judicial custody whereas the procedure established by law and
the latter part of the special twin conditions account for ninety days looking at the gravity
of the evidence and an additional 180 days for proper investigation to follow (refer to AK
Gopalan v. State of Madras, AIR 1950 SC 27).
ISSUE 3: WHETHER SECTION 50 OF THE PMLA STANDS VIOLATIVE OF PROVISIONS OF

INDIAN EVIDENCE ACT, 1872?

1. The PMLA renders immoderate powers to investigating officers and that under
Section 50 of the PMLA, investigating officers shall be considered as ‘police
officers’/Investigating officers under section 50 are not ‘police officers’: The
Appellants are first required to establish that the investigating officers under Section 50
shall be deemed to be considered as police officers under the ambit of Section 25 of Indian
Evidence Act (“IEA”) mainly due to the similarity of their powers and discharge of
function (S. Fernandez v. The State, AIR 1953 Cal 219, held- As Section 25 of the IEA was
enacted to ensure the purity of the administration of Justice & Customs, the officers who exercise powers
substantially analogous to that of a police officer, should be limited by the provision of Section 25 under
IEA). Further, it is expected to be contended that Section 50 of PMLA renders
immoderate powers to the authorized officers which may be exercised in a manner as they
deem fit for the purpose of investigation. The same would be deemed as a “judicial
proceeding” within the meaning of Section 193 and Section 228 of IPC. Therefore,
statements recorded by the authorized officers cannot be used against an accused in a court
of law. The Respondents may argue that the investigating officers are only empowered
with the requisite set of powers essential to discharge their duty of curbing the offense of
money laundering and thus cannot be deemed as police officers under Section 50 of the
PMLA (Vakamulla Chandrashekhar v. Enforcement Directorate & Anr., 2017 SCC OnLine Del
12810; Jeewan Kumar Raut v. Central Bureau of Investigation, (2009) 7 SCC 526).

2. Persons summoned under sec 50 shall be considered ‘accused’ and thus, rights of
person summoned violated / Persons summoned under section 50 are not
‘accused’: The Appellants may argue that the compulsory attendance to the summons
issued and the compelling legal obligations to state the truth or produce required
documents under Section 50 of the PMLA violates the right of the appellants against self-
incrimination granted under Art. 20 (3) of the Constitution of Indri and also infringes
provisions of Sec. 91 of CrPC. The right of a person against self-incrimination finds its
roots under Art. 20(3) and Art. 21 of the Constitution. The binding nature of Section 50 [
refer to Section 50(3)] of PMLA to state the truth is unfair and arbitrary. The Respondents
are expected to argue that with the filing of an ECIR, no person can be given the status of
an accused, because there is no magisterial intervention under PMLA unlike in an FIR
 (Dalmia Cements Ltd v. Enforcement Directorate, 2016 SCC OnLine Hyd 64). Hence, the
persons cannot be deemed to be accused and therefore, nullifying the scope for protection
under Art. 20(3).

3. PMLA overrides other statutes: The Respondents are expected to provide

arguments to justify why PMLA may be considered as a ‘special statute’. They are also
expected to address the ‘non-obstante’ provision under Section 71 of the PMLA. Again,
Section 50 of PMLA not only grants powers to the investigating authorities under this Act
but also casts duties upon them to take effective steps and unless it is shown that the
authorities under PMLA proceeded beyond their jurisdiction of the authority, their actions
cannot be considered as mala fide (Anil Vasantrao Deshmukh v. Directorate of Enforcement,
2021 SCC OnLine Bom 3641). The counsels are also expected to emphasize on how
money laundering poses significant threats to the financial systems of the country
(Vakamulla Chandrashekhar v. Enforcement Directorate & Anr., 2017 SCC OnLine Del 12810)
and thus, while dealing with the same, the PMLA works in a distinct area and is neither
violative of IEA nor infringes the fundamental rights enshrined under Art. 20(3), 21 of the
Constitution.

ISSUE 4: WHETHER REVERSE BURDEN OF PROOF UNDER UAPA STANDS VIOLATIVE OF

THE FUNDAMENTAL RIGHTS OF THE ACCUSED?

1. Breach of the doctrine of presumption of innocence/ Reverse burden of proof is

reasonable and not arbitrary: The Appellants may argue that the presumption of guilt
violates the right to fair trial and the right to remain silent. The impugned provisions of
Sections 43D (5) and 43E of UAPA are in contrast with the ‘doctrine of presumption of
innocence’. The shift in the onus of proof is ‘arbitrary’ and thus, violative of the doctrine.
The Respondents may argue that the presumption of innocence is not a constitutional
guarantee and can be dispensed with by legislative imperatives and that for offenses that
attract the reverse burden of proof, the seriousness and gravity of the same must be
considered (P. N. Krishnalal v. Government of Kerala, 1995 Supp (2) SCC 187; Babu v. State of
Kerala, (2010) 9 SCC 189). The provision of reverse burden of proof is a due procedure to
be followed under a special law (see Section 105 of Indian Evidence Act, Section 41 of
IPC, Section 43E of UAPA). Further, reliance may be placed on the proviso to Section
43D (5) of the UAPA which provides for the need for existence of ‘reasonable grounds
 for believing that the accusation against such person is prima facie true’ leading to the
inference that any shift in onus of proof is thus, not arbitrary.

2. Impugned provisions defeat the objective of the act (UAPA): The Appellants may
argue that the existence of the need for the court to consider the possibility that the
evidence and circumstances are ‘prima facie’ true could mean that the evidence against the
accused concerned in the first information report, must prevail until contradicted or
rebutted by other evidence. This would further mean that the court must have reason to
prima facie accept the ‘guilt’ of the accused persons, even if on broad probabilities (Asif Iqbal
Tanha v. State of NCT of Delhi) and thus, it may be contended that the ‘objective’ of the Act
is being achieved at the cost of injustice to the majority of the people charged under this
Act.

3. National Interest Over Individual Liberty: The Respondents are expected to highlight
the fact that the stringent provisions under the UAPA are reasonable and non-arbitrary,
promote the objectives of the act and that the same are in the interests of sovereignty and
integrity of Indri (may refer to 47th Report of the Law Commission, 1972 suggesting the
importance of ‘special efforts’ to curb certain offenses which inflicted greater injury to the
society).

OVERALL APPROACH TO BE ADOPTED BY TEAMS

The appellants will first establish that the writ petition filed under Article 32 is maintainable
and thereafter endeavour to establish that them being kept in police custody and the denial of
bail is unconstitutional and arbitrary. To prove the same, they will rely on the contention that
the impugned provisions (including the special twin provisions) are arbitrary and violate the
fundamental rights of the appellants and also that these provisions encroach upon the judicial
boundaries of other statutes.

In response, the respondent will be expected and required to establish first, that the writ
petition filed under Article 32 is not maintainable and thereafter provide relevant arguments
to justify their contentions that the impugned statutory provisions are not, in any manner,
unreasonable or arbitrary and that the same are constitutionally valid.