A PUBLIC INTEREST LITIGATION FILED UNDER ART OF THE ...

THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT

& JUDGEMENT WRITING COMPETITION, 2019.

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WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS

BEFORE THE HON’BLE SUPREME COURT OF INDIA

[EXTRAORDINARY ORIGINAL JURISDICTION]

PUBLIC INTEREST LITIGATION

WRIT PETITION NO……….. OF 2019

A PUBLIC INTEREST LITIGATION FILED UNDER ART 32 OF THE CONSTITUTION OF FINDIA,

1950

-------IN THE MATTER BETWEEN-------

LIELA ROMANOFF, KISHU RADO & ORS …………………PETITIONERS

v.

UNION OF FINDIA &O ORS …………………RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S

COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF FINDIA

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER

COUNSEL FOR PETITIONERS



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TABLE OF CONTENTS

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

BOOKS, COMMENTARIES & LEXICONS ........................................................................... 3

TABLE OF CASES ................................................................................................................... 5

ARGUMENTS ADVANCED ................................................................................................. 18

1.Whether the Instant Public Interest Litigation is maintainable Before This Hon’ble

Court? ................................................................................................................................... 18

1.1. All ingredients of a PIL stand satiated................................................................... 18

1.2. Derogation of Fundamental Rights. ....................................................................... 21

2. Whether the sections 8(c) & 27 of the NDPS Act, 1985 suffer from any constitutional

infirmities and are therefore ultra vires the Constitution of India? ...................................... 22

2.1. S. 8 (c) violates Art 14 of the Findian Constitution.............................................. 23

2.2. Violation of Art 19 (1) (g) of the Findian Constitution. ........................................ 24

2.3. S. 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 violates Art

21 of the Findian Constitution. ......................................................................................... 26

2.4. Consumption or Selling of Drugs does not require a penal punishment at all. .... 27

3. Whether Section 35 of the NDPS Act, 1985 Which Attaches A Presumption Of

Culpability, Is Ultra Vires the Constitution Of Findia? ...................................................... 28

3.1. Explicit Violation of Art 21 ................................................................................... 29

3.2. Downright breach of Art 14 ................................................................................... 32

4. Whether The Consumption of Drugs Can Fall Within The Protective Cover of Article

25? 36

4.1. Scope to Practice Religion Under Art 26 and Art 26 of the Findian Constitution.

36

4.2. It is not barred by “reasonable restrictions” laid down by the Findian Constitution.

39

4.3. The Cult amounts to being a religious denomination. .......................................... 41

PRAYER .................................................................................................................................. 44



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INDEX OF AUTHORITIES

STATUTES

1. Indian Penal Code, 1860

2. The Constitution of India , 1950

3. Narcotic Drugs and Psychotropic Substances Act, 1985

INTERNATIONAL INSTRUMENTS

1. Universal Declaration of Human Rights, 1947 (Adopted on December 10, 1948)

2. International Covenant on Civil and Political Rights (Adopted by United Nations)

BOOKS, COMMENTARIES & LEXICONS

1. Seervai H.M., Constitutional Law Of India, 4th Edition 2002, Volume Universal Book

Traders.

2. Shukla V.N., Constitution Of India 11th Edition 2008, Eastern Book Company.

3. Jain M.P, Indian Constitutional Law, 6th Edition 2011, Lexisnexis Butterworth Wadhwa

Nagpur.

4. Basu D.D., Constitution Of India 14th Edition 2009, Lexisnexis Butterworth’s Wadhwa

Nagpur.

5. Dr.M.C.Mehanathan, Law on Control of Narcotic Drugs and Psychotropic Substances in

India, 3rd edition, 2015

6. Chandra Satish, “Indian Evidence Act, 1872”, Allahabad Law Agency, Faridabad, 2012.

7. Gaur, K.D, “Textbook on Indian Penal Code”, Universal Law Publishing Co, New

Delhi, 5 th ED. 2014.

8. R.P.Kataria, Law Relating to Narcotic Drugs and Psychotropic Substances in India, 3rd

edition 2010, reprint 2013 (with latest Case-law)

9. Sharma &Mago, Narcotic Drugs and Psychotropic Substances Laws, 3rd edition, 2016

10. N.K.Rastogi , An Exhaustive Commentary on The Narcotic Drugs & Psychotropic

Substances Act & Rules, 2002

11. Malik , Law of Juvenile justice in India , 1st edition 2018

12. Bhattacharya, Sunil K., Juvenile Justice: An Indian Scenario, 2000

13. Prof. VedKumari, with a foreword by UpendraBaxi, The Juvenile Justice System in

India - From Welfare to Rights, 2004



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DICTIONARIES

1. Aiyar, Ramanatha P.: “The Law Lexicon”, Wadhwa& Company, 2ndEdn., Nagpur (2002).

2. Black, Henry Campbell: Blacks Law Dictionary ‟6th Edn., Centennial Ed. (1891-1991).

3. Curzon. L. B: “Dictionary Of Law”, Pitman Publishing, 4th Edn., New Delhi (1994).

4. Garner, Bryan A.: “A Dictionary Of Modern Legal Usage”, Oxford University Press 2nd

Edn., Oxford (1995).

5. Greenberg, Daniel And Alexandra, Millbrook: “Stroud’s Judicial Dictionary Of Words &

Phrases”, Vol. 2, 6th Edn., London: Sweet & Maxwell (2000).

6. Justice Desai, M.C. And Aiyar, Subramanyam: “Law Lexicon & Legal Maxims”, 2nd

Edn., Delhi: Delhi Law House (1980).

7. Mitra, B.C. &Moitra, A.C., “Legal Thesarus”, University Book, Allahabad (1997).

8. Moys, Elizabeth M., “Classification & Thesaurus For Legal Material”, 3rd Edn., London:

Bowker Saur (1992).

9. Oppe., A.S., “Wharton’s Law Lexicon”, 14th Edn., New Delhi: Sweet & Maxwell (1997).

10. Prem, Daulatram, “Judicial Dictionary”, 1st Edn., Jaipur: Bharat Law Publication (1992).



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TABLE OF CASES

1. B. Singh v. Union of India & Ors., 2004 (2) SCR 1061 ...................................................... 17

2. A. K. Roy vs Union Of India And Anr, 1982 SCR (2) 272 ................................................. 24

3. Adelaide Company of Jehovah‟s Witnesses Incorporated v. The Commonwealth 9 67 CLR

116 ........................................................................................................................................ 37

4. Andhra Pradesh State Financial Corporation v. M/s GAR Re-Rolling Mills and Anr., AIR

(1994) SC 2151 .................................................................................................................... 20

5. Aruna Roy v. Union of India, (2002) 7 SCC 368 ................................................................ 36

6. Arvind Mills Ltd v. Commissioner Of Income Tax, 1992 SCR (3) 557 ............................. 23

7. Ashok Kumar Pandey v. State of West Bengal, 6 (2004) 3 SCC 349 ................................. 18

8. Babu Ram v. State of U.P(1995) 2 SCC 689 ....................................................................... 33

9. Bachan Singh v. State of Punjab AIR 1980 SC 898 : 1980 Cri LJ 636 ............................... 31

10. Bijoe Emmanuel & Ors vs State Of Kerala & Ors, 1986 SCR (3) 518 ............................. 38

11. Brajendrasingh v. State of M.P., (2012) 4 SCC 289. ......................................................... 21

12. Budhan Chowdry v. State of Bihar, 1955(1) SCR 1045 (1049 ......................................... 33

13. C.L. Devgun v. Ndmc, Writ Petition (Civil) 579 of 2008 ................................................. 18

14. C.S.D. Swami v. The State, AIR 1960 SC 7 ...................................................................... 30

15. Central Electricity Supply Utility of Odisha v. Dhobei Sahoo & Ors., (2014) 1 SCC 161.

.............................................................................................................................................. 17

16. Chiranjit Lal v. Union of India. (1950) S.C.R.869 ............................................................ 22

17. Chiranjith Lal Chowdhuri v. Union of India, 1950 SCR 869 ............................................ 34

18. Commissioner of Police Vs. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770

.............................................................................................................................................. 36

19. Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha

Swamiar of Sri Shirur Mutt 1954 SCR 1005 ....................................................................... 37

20. D.S. Nakara & Others v. Union of India, 1983 SCR (2) 165 ............................................ 32

21. Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 ....................... 29

22. Dahyabhai Chhaganbhai Thakker v. State Of Gujarat, AIR 1964 SC 1563 ...................... 29

23. Dargah Committee vs. Syed Hussain Ali , AIR 1961 SC 1402 (¶ 33) .............................. 37

24. Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590. ............................ 18

25. Deepak Sibal & Ors vs Punjab University And Another, 1989 SCR (1) 689 ................... 23

26. Divine Retreat Centre v. State Of Kerala & Ors., AIR (2008) SC 1614 ........................... 17

27. Dr. Meera Massey (Mrs.), Dr, Abha Malhotra, Dr. S.C. Bhadwal v. Dr. S.R. Mehrotra,

(1998) 3 SCC 88. .................................................................................................................. 17

28. Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors. (1962) 1 SCR 383 : AIR

1961 SC 1402 ....................................................................................................................... 38

29. G. Ramegowda, Major, v. Special Land Acquisition Officer, Banglore, 1988 SCR (3)

198 ........................................................................................................................................ 19

30. Garg R.K v. Union of India, AIR 1981 SC 2138 ............................................................... 34

31. Govinda v. State by Sriramapuram P.S. and Anr. AIR 2012 SC 1292. ............................. 21

32. Gurpal Singh v. State Of Punjab & Ors., (2005) 5 SCC 136;............................................ 17



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33. Hakim Mondal v. King Emperor AIR 1920 Cal 342 ......................................................... 29

34. Hanif v. State of Bihar, AIR 1958 SC 731 ........................................................................ 32

35. Harakchand Ratanchand Banthia v. Union of India, (1969) 2 SCC 166 ........................... 32

36. Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra & Others, AIR (2008) SC 913 ....... 17

37. Irani P. J v. State of Madras, AIR 1961 SC 1731 .............................................................. 34

38. J. Jayalalithaa v. State of Karnataka, (2014) 2 SCC 401 ................................................... 33

39. Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay, [1960] 3 S.C.R. 319. 324

........................................................................................................................................ 28, 29

40. Janata Dal v. H.S. Choudhary, 1992 (4) SCC 305. ............................................................ 18

41. Justice K. S Puttasamy (Retd) v. Union of India, (2017) 10 SCC 1 .................................. 26

42. Justice K.P. Mohapatra v. Sri Ram Chandra Nayak, (2002) 8 SCC 1 ............................... 19

43. Justice K.S. Puttasamy (Retd) v. Union of India, (2017) 10 SCC 1 .................................. 25

44. K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605............................................... 30

45. K.V. Narayanan Namboodiri. v. State Of Kerala And Ors, AIR 1985 Ker 160 ................ 38

46. Kali Ram vs State Of Himachal Pradesh, 1973 AIR 2773 ................................................ 29

47. Katcherla Venkata Sunil v. Dr. Vanguri Seshumamba And Ors,2008 CriLJ 853 ............. 31

48. Katcherla Venkata Sunil vs Dr. Vanguri Seshumamba And Ors 2008 CriLJ 853, ........... 31

49. Kathi Ranning Tawat v. State of Saurastra,(1952) SCR 435 ............................................. 33

50. Kavalappara Kottarathil Kochuni vs The State Of Madras, 1960 AIR 1080 .................... 22

51. Kazi Lhendup Dorji v. Central Bureau of Investigation, (1994) Supp (2) SCC 116. ........ 18

52. Kedar Nath Bajoria And Anr v. The State Of West Bengal , AIR 1954 SC 660 .............. 22

53. Kedar Nath Bajoria v. State of W.B., AIR 1953 SC 404 ................................................... 34

54. Kerala and Ors. v. Unni and Anr. (2007) 2. SCC 365 ....................................................... 29

55. Khoday Distilleries Ltd v. State Of Karnataka, 1995 SCC (1) 574 ................................... 39

56. Kihoto Hollohan v. Zachillhu And Others, 1992 SCR (1) 686 ......................................... 28

57. Kumari Shrilekha Vidyarthi vs State Of U.P, 1991 AIR 537 ........................................... 35

58. Kushum Lata v. Union of India And Ors., Appeal (civil) 6527 of 2004 ........................... 18

59. Lily Thomas v. Union of India, (2000) 6 SCC 224 ........................................................... 36

60. M.C.Metha v. Union of India, (1987) 1 SCC 395 ............................................................. 18

61. M.G. Badappanavar v. State of Karnataka, (2001) 2 SCC 226 ......................................... 32

62. M/S Swastik Gases P.Ltd vs Indian Oil Corp.Ltd, [2013] 7 S.C.R. 581 ........................... 22

63. Mahant Sri Jagannath Ramanuj Das v. The State Of Orissa And Another, 1954 SCR 1046

.............................................................................................................................................. 36

64. Maneka Gandhi v. Union of India AIR 1978 SC 597........................................................ 31

65. Maneka Sanjay Gandhi v. Rani Jethmalani, 1979 SCR (2) 378 ........................................ 28

66. Municipal Corporation v. BVG India Limited, WP No: 3330 of 2018 ............................. 17

67. N.Adithayan v. Travancore Devaswom Board, (2002) 8 SCC 106. .................................. 36

68. Nagpur Improvement Trust v. Vithal Rao And Others , 1973 SCR (3) 39 ...................... 35

69. Nar Hari Shastri v. Shri Badrinath Temple Committee 1952 SCR 849 ............................ 37

70. Narender Singh & Anr. v. State of M.P. (2004) 10 SCC 699 ............................................ 30

71. Naresh Shridhar Mirajkar & Ors. v. State Of Maharashtra, AIR (1967) SC 1 .................. 20

72. Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664 ................................... 17

73. National Legal Services Authority v. Union of India, AIR 2014 SC 1863 ....................... 22



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74. Navtej Singh Johar v. Union of India, WP(Crl.)No.76/2016............................................. 26

75. Niranjan Tripathy v. State Of Orissa & Ors., W.P. (C) No.26393 of 2011 ....................... 17

76. Noida Entrepreneurs Association v. Noida & Ors., (2007) 10 SCC 385 ........................... 18

77. Noor Aga vs State Of Punjab & Anr (2008) 16 SCC 417 ................................................. 35

78. Noor Aga vs State Of Punjab & Anr, (2008) 16 SCC 417 ................................................ 31

79. P. M A. Metroplitan v. Moran Mar Marthoma, AIR 1995 SC 2001 ................................. 36

80. P. Seshadri v. S. Mangati Gopal Reddy, (2011) 5 SCC 484.............................................. 17

81. Pack v. Southern Bell Tel. & Tel. Co. 215 Tenn. 503 (1965) ........................................... 18

82. Pannalal Bansilal Pitti & Ors. v. State Of Andhra Pradesh & Anr, 1996 SCC (2) 498 .... 36

83. Partap vs The State Of U.P, 1976 SCR (1) 757 ................................................................. 29

84. Pathumma v. State of Kerala, AIR 1978 SC 771 ............................................................... 33

85. People's Union for Democratic Rights & Ors. v. Union of India & Ors., (1982) 3 SCC

235 ........................................................................................................................................ 17

86. Piyush Kantilal Mehta v. Commissioner Of Police, 1988 SCR Supl. (3)1081 ................. 24

87. Prakash vs State Of KarnatakaCRIMINAL APPEAL NO. 1682 OF 2005 ....................... 30

88. R & M Trust v. Koramangala Resi. Vigilance Group & Ors., AIR (2005) SC 894. ......... 17

89. Rabindra Kumar Dey vs State Of Orissa : 1977 AIR 170, 1977 SCR (1) 439, ................. 29

90. Rajiv Singh v. The State Of Bihar And Anr, 2016 (I) 1 SC .............................................. 35

91. Ramakrishna Dalmia , Shri v. Tendokar, Justice S.R., AIR 1958 SC 538 (552) .............. 34

92. Ramjas Foundation v. Union of India, (1993) Supp (2) SCC 20 ....................................... 18

93. Ramsharan Autyanuprasi v. Union of India, AIR (1989) SC 549 ..................................... 17

94. Ranjit D. Udeshi v. State Of Maharashtra, 1965 SCR (1) 65 ........................................... 24

95. Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra & Anr, [(2005) 5 SCC 294]

.............................................................................................................................................. 28

96. Ratilal Panachand Gandhi v. The State of Bombay, 1954 AIR 388 .................................. 36

97. Ratilal Panachand Gandhi Vs. State Of Bombay (1954) SCR 1055 ................................. 37

98. Rattan Chand Hira Chand v. Askar Nawaz Jung, 1991 SCC (3) 6 .................................... 22

99. Raunaq International Ltd. v. I.V.R. Construction Ltd. and Ors., (1999) 1 SCC 492 ........ 17

100. Rayala Corp. v. Director of Enforcement, (1970) 1 SCR 639 (648) ............................... 33

101. Rishi Kesh Singh And Ors. v. The State, 1970 CriLJ 132............................................... 28

102. Roy Romer, Governor of Colorado. v. Richard G. Evans, 517 U.S. 620 ........................ 22

103. Royappa E.P v. State of T.N., AIR 1974 SC 555 ............................................................ 32

104. S.P. Anand, Indore v. H.D. Deve Gowda & Ors., (1996) 6 SCC 734. ............................ 17

105. S.P. Mittal v. Union of India & Ors (1983) 1 SCC 51 ..................................................... 41

106. S.P. Muthu Raman v. The Chief Secretary & Others. Writ Petition (MD)No.11444 of

2011 & M.P.(MD)No.1 of 2011 ........................................................................................... 37

107. S.R. Bommai And Others . vs Union Of India And Others, JT 1994 (2) SC 215 ........... 35

109. Sahara India Real Estate v. Securities & Exch.Board of India, 2012] 174 Comp Cas 154

(SC) ...................................................................................................................................... 32

110. Sardar Syedna Taher Saifuddin Saheb v. State of Bombay 1962 Supp (2) SCR 496 : AIR

1962 SC 853 ......................................................................................................................... 41

111. Satyawati Sharma v. Union of India, (2008) 5 SCC 287 ................................................. 23



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112. Sher Singh @ Partapa v. State Of Haryana on 9 January, 2015, CRIMINAL APPEAL

No. 1592 OF 2011 ................................................................................................................ 29

113. Shivam Sharma vs State Of H.P. & Ors, CWP No. 1353 of 2018 .................................. 23

114. Sri Sri Sri Lakshamana v. State Of Andhra Pradesh & Anr, 1996 AIR 1414 ................. 40

115. Stainislaus Rev. Vs. State of M.P. AIR 1975 MP 163 .................................................... 37

116. State Bank of India v. Shri N. Sundara Money, AIR (1976) SC 1111 ............................ 19

117. State Of Andhra Pradesh vs Challa Ramkrishna Reddy & Ors, (2000) 5 SCC 2 ........... 24

118. State Of Haryana v. Jagbir Singh And Anr, 2003 (11) SCC 261 .................................... 30

119. State of Karnataka v. Dr. Praveen Bhai Thogadia (2004) 4 SCC 684 ............................. 37

120. State of Maharashtra v. Prabhu, (1994) 2 SCC 481 ......................................................... 20

121. State of Punjab v. Baldev Singh, (1999) 3 SCC 977 ....................................................... 35

122. State Of Rajasthan And Ors v. Sajjanlal Panjawat & Ors, 1974 SCR (2) 741 ................ 40

123. State of Rajasthan v. Manohar Singhji, 1954 SCR 996 ................................................... 34

124. State of Uttaranchal v. Balwant Singh Chaufal & Ors, (2010) 3 SCC 402 ..................... 21

125. State of Uttranchal v. Balwant Singh Chaufal & Ors., (2010) 3 SCC 402 ...................... 17

126. State of W.B v. Anwar Ali Sarkar, 1952 SCR 284 .......................................................... 34

127. State v. Coetzee [(1997) 2 LRC 593]............................................................................... 35

128. Subhash Kumar v. State Of Bihar & Ors., AIR (1991) SC 420 ...................................... 19

129. Suneel Jatley Etc vs State Of Haryhana, 1985 SCR (1) 272 ........................................... 33

130. Sunil Batra (II) v. Delhi Administration, 1980 (3) SCC 488 ........................................... 18

131. Sunil Kumar Sharma vs State (Cbi): 139 (2007) DLT 407, I (2007) DMC 654 ............. 29

132. T.R. Kothandaraman v. T.N. Water Supply & Drainage Board, 1994 SCC (6) 282 ....... 22

133. Tata Cellular vs Union Of India, 1994 SCC (6) 651 ....................................................... 35

134. Tejas Constructions & Infrastructure (P) Ltd. v. Municipal Council, Sendhwa, (2012) 6

SCC 464 ............................................................................................................................... 17

135. The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha

Swamiyar of Shri Shirur Mutt, 1954 AIR 282 .................................................................... 41

136. The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Swamiar

of Shirur Mutt, AIR 1954 SC 282 ........................................................................................ 37

The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Swamiar of

Shirur Mutt, AIR 1954 SC 282. ........................................................................................... 36

137. The Kerala Bar Hotels Association v. State Of Kerala, 2015 SCC OnLine SC 1385 .... 32

138. The State of Gujarat & Anr., v. Shri Ambica Mills Ltd., AIR (1974) SC 1300. ............. 21

139. The State Of West Bengal v. Anwar Ali Sarkar, 1952 1 SCR 284.................................. 32

140. The State Of West Bengal v. Subodh Gopal Bose And Others, 1954 SCR 587 ....... 24, 39

141. The State of West Bengal Vs. Anwar All Sarkarhabib Mohamed, [1952] INSC 1 ......... 22

142. Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. (1964) 1 SCR 561 at

582 : AIR 1963 SC 1638 ...................................................................................................... 38

143. Tilokchand Motichand & Ors. v. H.B. Munshi & Anr., AIR (1979) SC 898.................. 20

v. 31

144. V.Anbazhagan v. The Comissioner, W.P.No.14417 of 2019 .......................................... 41

145. Vijay Narain Singh v. State Of Bihar & Ors, 1984 SCR (3) 435 .................................... 40



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146. Vishaka v. State of Rajasthan, AIR 1997 SC 3011; Jolly George Verghese v. Bank of

Cochin, AIR 1980 SC 470.................................................................................................... 31

147. Visina v. Freeman, 252 Minn. 177 (1958) ....................................................................... 19



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LIST OF ABBREVIATIONS

& : And

§ : Section

¶ : Paragraph

AIR : All India Report

Anr : Another

All : Allahabad

AP : Andhra Pradesh

Art. : Article

Bom : Bombay

Cal : Calcutta

Del : Delhi

Act : Narcotic Drugs and Psychotropic Substances Act, 1985

Edn : Edition

Govt : Government

HC : High Court

ICCPR : International Covenant on Civil and Political Rights

IT Act : Information Technology Act

Kar : Karnataka

Ltd : Limited

Ors : Others

PIL : Public Interest Litigation

S. : Section

SC : Supreme Court

SCC : Supreme Court Cases

SLP : Special Leave Petition

u/s : Under Section

UDHR : United Nations Declaration of Human Rights



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UOI : Union of India

US : United States

UK : United Kingdom

v : verses



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STATEMENT OF JURISDICTION

The Petitioners have approached this Hon’ble Supreme Court of Findia under Art 32 of the

Findian Constitution, 19501, through a Public Interest Litigation.

1 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

(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

https://indiankanoon.org/doc/846967/






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STATEMENT OF BRIEF FACTS

About the Country:

(i) Union of Findia is a unique entity following the Centre-biased form of a federation with

morality and cultural norms influencing the state and where all the socio-cultural and

religious sects have one common aspect– the use of recreational drugs. Noticing this, the

Parliament of Findia brought in the NDPS Act in 1985.

The Cult:

(ii) Since 1950s, there existed a religious cult in the State of Maharashtra headed by Kishu

Roado which believed in attaining the state of nirvana by a “technique of transformation”.

The cult took pride in defying societal norms and appealed to the humans to live authentically

without shunning themselves from the natural joyful experiences. The cult indulges in

practices contravening the law; propagate immoral behaviours including promiscuity and

usage of certain substances to attain nirvana.

The Issue:

(iii) Barty Junior, a law student, came in contact with an active member of the cult called

Maa Liela through social media who promised to guide him to attain nirvana. Upon her

persistence, Barty met Kishu at her residence on May 2019 to start the process. Impressed by

the views, he visited Maa Liela’s residence on 11.06.19 and decided to meet on 25.06.19 for

the next session. On 23rd June, the police received an anonymous tip relating to the usage of

drugs at the residence of Maa Liela.

Consumption of Drugs:

(iv) On 25.06.19, Barty arrived at her residence at around 9:00 am and they began the session

at around 9:30 am. Maa Liela offered Barty a brownish white powder called “essence of

heaven” in order to help him focus on his mediation. At first, he was hesitant, but at Kishu’s

persistence, Barty consumed the powder. At 10.15 am, PI Kiran Desai along with his raiding

unit arrived at the residence.

(v) On entering, they saw Barty, Kishu and Maa Liela sitting on the floor and saw lines of

brownish white powder on the dining table and an open packet which they suspected to be



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heroin, an addictive substance. Maa Liela said that the powder was used for meditation. They

also came across a brief case on the 1st floor of the house with 2 packets of the similar

powder which were seized, sealed and sent for chemical analysis. The trio was arrested

complying with the due procedure specified under the NDPS Act, 1985. Charges were

framed against the three of them under the Act.

Filing of PIL:

(vi) Aggrieved, Kishu and Maa Liela took the defence of Right to Privacy as the activities

were within the four corners of their house, didn’t disturb any third person and hence the

State has no right to interfere. They filed a PIL in the Hon’ble Supreme Court of Findia

challenging to constitutionality of S.27 of the NDPS Act along with several other petitions

challenging various other provisions. The petitions were clubbed to be heard together. They

also prayed for a stay on the trial till the Supreme Court decided on the said PIL. However,

the Supreme Court allowed the trial to proceed on its own accord.



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STATEMENT OF ISSUES

1. WHETHER THE INSTANT PUBLIC INTEREST LITIGATION IS MAINTAINABLE

BEFORE THIS HON’BLE COURT?

2. WHETHER THE SECTIONS 8(C) & 27 OF THE NDPS ACT, 1985 SUFFER FROM

ANY CONSTITUTIONAL INFIRMITIES AND ARE THEREFORE ULTRA VIRES THE

CONSTITUTION OF FINDIA?

3. WHETHER SECTION 35 OF THE NDPS ACT, 1985 WHICH ATTACHES A

PRESUMPTION OF CULPABILITY, IS ULTRA VIRES THE CONSTITUTION OF

FINDIA?

4. WHETHER THE CONSUMPTION OF DRUGS CAN FALL WITHIN THE PROTECTIVE

COVER OF ARTICLE 25?



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SUMMARY OF ARGUMENTS

1.WHETHER THE INSTANT PUBLIC INTEREST LITIGATION IS MAINTAINABLE BEFORE THIS

HON’BLE COURT?

It is humbly submitted by the Petitioners that the instant Public Interest Litigation is

maintainable before this Hon’ble Apex Court of Findia as it is filed for a larger public

interest. It is a well-settled principle of law that even though there may be an iota of personal

interest, if a Public Interest Litigation benefits the society at large, “relaxation of locus

standi” principle will be applicable to the litigation. Therefore, since all essentials of a Public

Interest Litigation are satiated and since there is a gross violation of various rights through

the Narcotic Drugs and Psychotropic Substances Act, 1985, it is submitted that the present

litigation is maintainable before this Hon’ble Court.

2.WHETHER THE SECTIONS 8(C) & 27 OF THE NDPS ACT, 1985 SUFFER FROM ANY

CONSTITUTIONAL INFIRMITIES AND ARE THEREFORE ULTRA VIRES THE CONSTITUTION

OF FINDIA?

It is most humbly submitted before this Hon’ble Court that the S. 8 (c) and S. 27 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 are ultra vires the Findian

Constitution as there is an explicit violation of Art 14, Art 19 (1) (g) and Art 21 through these

impugned provisions. Further, since it does not fall within the ambit of “reasonable

restrictions” laid down by the Findian Constitution for these rights. It is also contended that

there is no “reasonable classification” also in the instant provisions as there is an astute

absence of “intelligible differentia”

3. WHETHER SECTION 35 OF THE NDPS ACT, 1985 WHICH ATTACHES A PRESUMPTION

OF CULPABILITY, IS ULTRA VIRES THE CONSTITUTION OF FINDIA?

It is submitted deferentially before this Hon’ble Court that S. 35 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 is ultravires the Findian Constitution as it is violative of

the cardinal principle of criminal jurisprudence. Further, it is also submitted that it is violative

of Art 14 of the Findian Constitution. There is no “reasonable classification” as the Act lacks

“intelligible differentia” and there is no rational nexus between the oject of the Act and this



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classification. The intent of the Legislature in drafting this Act can be achieved even without

assuming a culpable mind onto the accused and even without transferring the onus probandi

to him, thereby violating Art 14.

4. WHETHER THE CONSUMPTION OF DRUGS CAN FALL WITHIN THE PROTECTIVE COVER

OF ARTICLE 25?

It is most humbly submitted that the usage and consumption of drugs is viewed as a practice

“essential to the religion” by this particular cult that can be deemed to be a religious

denomination under Art 26 of the Findian Constitution. Further, it is submitted that what is

essential to the religion and what is not is to be determined by the cult itself and therefore, the

usage of drugs can be viewed as an practice that is essential to the religion.



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ARGUMENTS ADVANCED

1.Whether the Instant Public Interest Litigation is maintainable Before This

Hon’ble Court?

The Petitioner most reverently submits that the Public Interest Litigation filed under Art 322

of the Findian Constitution is maintainable before this Hon’ble Supreme Court as [A]

essentials of a PIL stand satisfied; [B] There is a violation of Fundamental Rights in the

instant matter.

1.1.All ingredients of a PIL stand satiated.

(a) Public interest litigation is a co-operative or collaborative effort by the Petitioner, the

State of public authority and the judiciary to secure observance of constitutional or basic

human rights, benefits and privileges upon poor, down-trodden and vulnerable sections of the

society.3 Public interest litigation is for making basic human rights meaningful to the

deprived and vulnerable sections of the community and to assure them social, economic and

political justice4. It is to be used as an effective weapon in the armoury of law for delivering

social justice to the citizens5.

(b) The attractive brand name of public interest litigation should not be used for suspicious

products of mischief6. PIL is not a panacea for all wrongs7. The powers of PIL conferred to

the Apex Court under Art 32 should be used with a lot of precaution and care8. Therefore, to

prevent the abuse of PILs,9 the Supreme Court of Findia has laid down stringent guidelines

that have to be adhered to by the Courts while accepting a PIL, which are as follows:

2 Page 4, Moot Court Proposition. 3 People's Union for Democratic Rights & Ors. v. Union of India & Ors., (1982) 3 SCC 235. 4 Ramsharan Autyanuprasi v. Union of India, AIR (1989) SC 549. Also in: Narmada Bachao Andolan v. Union

of India, (2000) 10 SCC 664. 5 Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra & Others, AIR (2008) SC 913. 6 P. Seshadri v. S. Mangati Gopal Reddy, (2011) 5 SCC 484. Also in: Divine Retreat Centre v. State Of Kerala

& Ors., AIR (2008) SC 1614. 7 R & M Trust v. Koramangala Resi. Vigilance Group & Ors., AIR (2005) SC 894. 8 Central Electricity Supply Utility of Odisha v. Dhobei Sahoo & Ors., (2014) 1 SCC 161. Also in: Dr. B. Singh

v. Union of India & Ors., 2004 (2) SCR 1061. 9 S.P. Anand, Indore v. H.D. Deve Gowda & Ors., (1996) 6 SCC 734. Also in: Dr. Meera Massey (Mrs.), Dr,

Abha Malhotra, Dr. S.C. Bhadwal v. Dr. S.R. Mehrotra, (1998) 3 SCC 88.






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(i) The courts should prima facie verify the credentials of the petitioner before

entertaining a PIL10.

(ii) The court should be fully satisfied that substantial public interest is involved

before entertaining the petition11.

(iii) The court should ensure that the petition which involves larger public interest,

gravity and urgency must be given priority over other petitions12.

(c) It is the most humble submission of the Petitioner that all the limbs that have been laid

down are satisfied in the instant matter, and thus, this PIL should be entertained by this

Hon’ble Apex Court.

1.1.1. Petitioner has locus standi to file this PIL.

(a) The Hon’ble Apex Court has the responsibility to ensure that it satisfies itself with the

credentials of the Petitioner before accepting a PIL.13 The judiciary has to be extremely

careful to see that behind the beautiful veil of public interest, an ugly private malice, vested

interest and/or publicity-seeking is not lurking.14 The Court must be careful to see that a body

of persons or member of the public, who approaches the Court is acting bona fide and not for

personal gain or private motive or political motivation or other oblique considerations.15

(b) A writ petitioner who comes to the Court for relief in public interest must come not only

with clean hands like any other writ petitioner but also with a clean heart, clean mind and

clean objective.16 A public spirited individual can be defined as someone who is motivated by

devotion to general welfare.17 A Public Interest Litigation that has the substantial amount to

public interest and an incidental “private interest” is still maintainable before this Hon’ble

Court18. It is a settled principle of law that the mere fact that some private interest may derive

10 State of Uttranchal v. Balwant Singh Chaufal & Ors., (2010) 3 SCC 402. Also in: Gurpal Singh v. State Of

Punjab & Ors., (2005) 5 SCC 136; Niranjan Tripathy v. State Of Orissa & Ors., W.P. (C) No.26393 of 2011. 11 Raunaq International Ltd. v. I.V.R. Construction Ltd. and Ors., (1999) 1 SCC 492. Also in: Tejas

Constructions & Infrastructure (P) Ltd. v. Municipal Council, Sendhwa, (2012) 6 SCC 464; Municipal

Corporation v. BVG India Limited, WP No: 3330 of 2018. 12 Supra Note 10. Also in: Ashok Kumar Pandey v. State of West Bengal, 6 (2004) 3 SCC 349; Noida

Entrepreneurs Association v. Noida & Ors., (2007) 10 SCC 385. 13 Sunil Batra (II) v. Delhi Administration, 1980 (3) SCC 488. Also in: Janata Dal v. H.S. Choudhary, 1992 (4)

SCC 305. 14 Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590. 15 Kushum Lata v. Union of India And Ors., Appeal (civil) 6527 of 2004. Also in Supra Note 13; Kazi Lhendup

Dorji v. Central Bureau of Investigation, (1994) Supp (2) SCC 116. 16 Ramjas Foundation v. Union of India, (1993) Supp (2) SCC 20. 17 Merriam- Webster Dictionary, Encyclopaedia Britannica, Inc. 18 M.C.Metha v. Union of India, (1987) 1 SCC 395.






https://www.google.com/search?rlz=1C1RLNS_enIN738IN738&q=Encyclop%C3%A6dia+Britannica,+Inc.&stick=H4sIAAAAAAAAAOPgE-LUz9U3MMzJSc5VAjNNMowL07SUM8qt9JPzc3JSk0sy8_P084vSE_MyqxJBnGKrgsSi1LwSAL3Fr589AAAA&sa=X&ved=2ahUKEwiCloGmrp_fAhWEdH0KHcM3BxAQmxMoATAsegQIBhAP



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an incidental benefit from the activity does not deprive the activity of its public nature if its

primary purpose is public.19

(c) In the instant factual matrix, it is crystalline that the intention of the Petitioner has a

substantial amount of public interest object only, there is only an ancillary and incidental

private interest. Further, the Apex Court has clubbed all the Petitions challenging the

Narcotic Drugs and Psychotropic Substances Act, 1985 together as a single litigation20.

Therefore, it cannot be a common contention that all these Petitions have private interest.

Moreover, there is only an incidental involvement of private interest, the object is clear and

the mere involvement of personal interest does not deprive the present litigation of its public

character21. Hence, the Respondent submits that the present litigants have the locus standi to

file the instant petition.

1.1.2. Involvement of Public Interest.

(a) In a plethora of judicial pronouncements, the Apex Court has spelt out that there should

be substantial public interest involved in a petition filed as a PIL. 22 However, involvement of

substantial public interest is not a hard and fast rule for entertaining a PIL23. In appropriate

cases, although the Petition may deal with public interest at large, and an ancillary private

interest, it is still tenable in the eyes of law as a “public interest litigation” when the object of

the litigation still holds to be the same24.

(b) The Petitioner humbly submits that the present litigation challenges various important

provisions25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 which are

unconstitutional and ultra vires the Findian Constitution. The number of people being falsely

accused using these provisions, especially where there is a shift in the burden of proof from

the Prosecution to the Accused26, is increasing day by day27 and the Petitioners submits that

19 Pack v. Southern Bell Tel. & Tel. Co. 215 Tenn. 503 (1965). Also in: Visina v. Freeman, 252 Minn. 177

(1958) Also in: C.L. Devgun v. Ndmc, Writ Petition (Civil) 579 of 2008. 20 Page 4, Moot Court Proposition. 21 Pack v. Southern Bell Tel. & Tel. Co. 215 Tenn. 503 (1965). Also in: Visina v. Freeman, 252 Minn. 177

(1958) Also in: C.L. Devgun v. Ndmc, Writ Petition (Civil) 579 of 2008. 22 Subhash Kumar v. State Of Bihar & Ors., AIR (1991) SC 420. Also in: State Bank of India v. Shri N. Sundara

Money, AIR (1976) SC 1111. 23 Justice K.P. Mohapatra v. Sri Ram Chandra Nayak, (2002) 8 SCC 1. 24 G. Ramegowda, Major, v. Special Land Acquisition Officer, Banglore, 1988 SCR (3) 198 25 S. 8 (c), S. 27 and S. 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985 26 S. 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985 27 https://indianexpress.com/article/india/panel-discussion-on-cases-under-ndps-act-easy-to-blame-

police-each-component-of-justice-system-must-work-properly-says-ig-5602621/



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this per se, shows that there is substantial involvement of public interest as the

aforementioned provisions are not only ultra vires the Findian Constitution and the

constitutional guarantees under Part III, but are also ultra vires the various international

treaties to which Findia is a signatory, which will be proved through the forth coming issues.

Hence, the Petitioner humbly contends that this limb also stands satiated.

1.1.3. The instant matter is time pressed.

(a) It is also important to establish that the issue in hand is time pressed and requires

immediate judicial intervention to entertain a PIL in the court of law.28 The Petitioner

reverently contends that the present matter is time pressed and has a gravity that requires it to

be prioritized over all other cases29. As it has been pointed out earlier, the convictions that are

fabricated are being continually increasing under the Narcotic Drugs and Psychotropic

Substances Act, 1985, owing to the fact that there is a shift in the burden of proof30.

(b) Therefore, in lieu of the same, the Petitioners most reverently submit before this Hon’ble

Court that the instant litigation is time pressed as the number of false convictions are being

continually increasing and the intervention of this Hon’ble Court is warranted to strike down

the provisions that are ultra vires the Findian Constitution.

1.2. Derogation of Fundamental Rights.

(a) ) The powers of the Supreme Court of Findia under Art.32 of Findian Constitution is wide

and it can be used to reinstate the fundamental rights of individuals when they have been

denied.31 PIL’s can be entertained when the rights of individuals guaranteed by Part III of the

Findian Constitution have been grossly violated.32

(b) The Petitioners deferentially submit that there is a clear cut fundamental right violation in

the instant litigation. The “impugned sections33” of the Narcotic Drugs and Psychotropic

Substances Act, 1985 that are being challenged are ultra vires the Constitution and ultra vires

many of the international conventions to which Findia is a signatory, which will be proved in

the course of this written submission. The “impugned sections” explicitly violate Art 21 of

28 Supra Note 4. Also in: State of Maharashtra v. Prabhu, (1994) 2 SCC 481; Andhra Pradesh State Financial

Corporation v. M/s GAR Re-Rolling Mills and Anr., AIR (1994) SC 2151. 29 Supra Note 10. 30 S. 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985 31 Naresh Shridhar Mirajkar & Ors. v. State Of Maharashtra, AIR (1967) SC 1. 32Tilokchand Motichand & Ors. v. H.B. Munshi & Anr., AIR (1979) SC 898. 33 S. 8 (c), S. 27 and S. 35 of the Narcotic Drugs and Psychotropic Substances Act, 1965.




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the Findian Constitution and other allied constitutional guarantees of the Part III of the

Findian Constitution. There is also a clear violation of the United Nations Declaration of

Human Rights34 and the International Covenant on Civil and Political Rights35, to which

Findia is a signatory; which constitute the lifeline of international law. Further, the basic

cannon of criminal jurisprudence, “innocent until proven guilty” which is reiterated in a

number of cases by this Hon’ble Apex Court36 is also being explicitly violated vide the

provisions of the Narcotic Drugs and Psychotropic Substances Act, 198537.

(c) Any writ petition becomes sustainable in this Hon’ble Court where it has been

satisfactorily established that there is a distinct fundamental right violation38. Moreover,

“genuine public harm” and “public injury39” will be caused if this petition is not entertained

by this Hon’ble Court. Therefore, the Petitioners submit with utmost reverence that since

there is a substantial derogation of Fundamental Rights also in the instant case, the present

litigation is maintainable before this Hon’ble Court.

2. Whether the sections 8(c) & 27 of the NDPS Act, 1985 suffer from any

constitutional infirmities and are therefore ultra vires the Constitution of

India?

(a) S. 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 prohibits

certain operations such as produce, manufacture, possess, sell, purchase, transport, use

consume etc. any narcotic drug or psychotropic substance. It is submitted before this

Hon’ble Apex Court that such a provision is ultra vires the Findian Constitution as it

starkly violates Art. 14 and Art 19 (1) (g), which are constitutional guarantees under

Part III of the Findian Constitution. It is also humbly contended that it does not fall

within the ambit of “reasonable restrictions40” to these rights propounded by the

Findian Constitution.

34 Art 12 of the United Nations Declaration of Human Rights. 35 Art 17 of the International Covenant on Civil and Political Rights. 36 Brajendrasingh v. State of M.P., (2012) 4 SCC 289. Also in: Govinda v. State by Sriramapuram P.S. and Anr.

AIR 2012 SC 1292.

37 S. 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 38 The State of Gujarat & Anr., v. Shri Ambica Mills Ltd., AIR (1974) SC 1300. 39 State of Uttaranchal v. Balwant Singh Chaufal & Ors, (2010) 3 SCC 402. 40 Kavalappara Kottarathil Kochuni vs The State Of Madras, 1960 AIR 1080



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(b) Moreover, S. 27 of the said Act imposes a ban on the consumption of drugs and

penalises the same. The Petitioners submit with utmost veneration that this provision is

also ultra vires the Findian Constitution as it violates Art 21, which forms the golden

thread of the Findian Constitution41. It is also contended that consumption of any

narcotic substance mentioned in the said Act in a prescribed quantity and manner will

not, by itself affect the public welfare and harmony,42 thereby falling outside the scope

of ‘reasonable restrictions’ laid down by the Constitution.

2.1. S. 8 (c) violates Art 14 of the Findian Constitution.

(a)The Constitution of Findia envisages the Right to Equality.43 Article 14 has in itself

two limbs, “equality before law44” and “equal protection of law45. The guaranty of

the equal protection of the laws means “the protection of equal laws46”. It forbids class

legislation, but does not forbid classification which rests upon reasonable grounds of

distinction47. It does not prohibit legislation, which is limited either in the objects to

which it is directed or by the territory within which it is to operate.48 It merely requires

that all persons subjected to such legislation shall be treated alike under like

circumstances and conditions both in the privileges conferred and in the liabilities

imposed.49

(b) It is most reverently submitted before this Hon’ble Court that the present, impugned

provision amounts to being a “class legislation” that is explicitly prohibited by Art 14

of the Findian Constitution. In lieu of the same, the Petitioners would like to draw a

parallel to alcohol and tobacco in the present case, that have the same ill effects of

narcotic drugs, per se50. However, it is a well-acknowledged fact that the sale of

alcohol and tobacco is not banned by the Findian nation; however, it is only the sale of

narcotic drugs and psychotropic substances that is banned by the Findian Nation.

41 T.R. Kothandaraman v. T.N. Water Supply & Drainage Board, 1994 SCC (6) 282 42 Rattan Chand Hira Chand v. Askar Nawaz Jung, 1991 SCC (3) 67 43 Art 14 to 18 of the Findian Constitution. 44 The State of West Bengal Vs. Anwar All Sarkarhabib Mohamed, [1952] INSC 1 45 Chiranjit Lal v. Union of India. (1950) S.C.R.869 46 Roy Romer, Governor of Colorado. v. Richard G. Evans, 517 U.S. 620 47 National Legal Services Authority v. Union of India, AIR 2014 SC 1863 48 M/S Swastik Gases P.Ltd vs Indian Oil Corp.Ltd, [2013] 7 S.C.R. 581 49 Kedar Nath Bajoria And Anr v. The State Of West Bengal , AIR 1954 SC 660 50 https://drugabuse.com/drug-alcohol-effects/



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2.1.1. No Reasonable Classification.

(a) It is also pertinent here to point out the intent of the Legislature in enacting the said

Act in the present case51. The intent does not specifically say why only the sale of

drugs should not be allowed by the Findian Nation. It merely aims to regulate and put a

stringent ban on the sale and consumption of narcotic substances, without

substantiating on why it is so52. Therefore, the Petitioners deferentially submit that this

classification will not amount to “reasonable classification53” as there is no “intelligible

differentia54” in classifying why drugs alone should be classed differentially and is not

placed on the same footing as any other substance that has the same effect.

(b) It is submitted that this classification of drugs alone at a different footing is

arbitrary and lacks rationality.55 Further, the next essential to be proved for “reasonable

classification” if any, is that there should be a direct nexus of this classification to the

object of the said Act or provision. 56 It is submitted by the Petitioners that there is no

rationale or direct nexus between the intent of this classification and the classification

so made, because there are other substances, causing the same effect which are still

permitted by the Findian nation. In fact, it is pertinent to point out here that the

government itself, in a few states of Findia, manufactuers and sell alcohol, which

perhaps has the same ill effects of drugs. Therefore, the Respondents submit that this

classification of drugs alone, that is done vide Art 8 (c) of the Narcotic and

Psychotropic Substances Act, 1985 is not justified and thereby violates Art 14 of the


2.2. Violation of Art 19 (1) (g) of the Findian Constitution.

(a) The Findian Constitution guarantees to every citizen the freedom to practice any

profession, or to carry out any occupation, trade or business.57 It is submitted that in the

instant matter, as the Petitioner has already contended, the classification of drugs alone

51 Preamble of the Narcotic Drugs and Psychotropic Substances Act, 1985 52 Ibid 53 Deepak Sibal & Ors vs Punjab University And Another, 1989 SCR (1) 689 54 Shivam Sharma vs State Of H.P. & Ors, CWP No. 1353 of 2018 55 Satyawati Sharma v. Union of India, (2008) 5 SCC 287 56 Arvind Mills Ltd v. Commissioner Of Income Tax, 1992 SCR (3) 557 57 Art 19 (1) (g) of the Findian Constitution.



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to be a separate class is unreasonable, irrational and arbitrary and is not well- supported

by cogent real reasons.

(b) It is humbly submitted before this Hon’ble Court therefore, this amounts to a clear

cut violation of Art 19 (1) (g) wherein, the sale of narcotic drugs and psychotropic

substances is banned in its entirety. The Government of various states in Findia, by

itself engage in sale of alcohol and gain revenue through that. Given that scenario,

banning the sale of drugs and psychotropic substances, which have the same effect as

drugs is a clear cut violation of the right to freedom of profession guaranteed by Art 19

(1) (g) of the Findian Constitution.

2.2.1. Does not fall into the ambit of “reasonable restrictions”.

(a)It is well-settled principle of law that no right is absolute and every right is subject to

reasonable restrictions.58 The Findian Constitution also lays down restrictions to the

rights that it guarantees under Part III of the Constitution.59 The interests of the

sovereignty and integrity of Findia60, the security of the State61, friendly relations with

foreign States, public order62, decency or morality63 or in relation to contempt of court,

defamation or incitement to an offence64 have been laid down as “reasonable

restrictions” that can be levied on the “freedom to practice of any profession or

business. However, is explicit that none of these limbs are violated in the instant case.

(b) Even as an arguendo, assuming but not conceding to the argument of the Learned

Counsel for Respondents that allowing of the sale of drugs violates decency and

morality, it is not possible to state that because alcohol and tobacco which cause the

same effect as consumption of drugs are still prevalent in the market, and therefore,

classifying only drugs to be a separate class is not righteous and is not “reasonable

classification” in the humble submission of the Petitioners.

Principle behind criminalising consumption of narcotic substance fails the test of

constitutionality.

58 The State Of West Bengal v. Subodh Gopal Bose And Others, 1954 SCR 587 59 Art 19 (2) to (6) of the Findian Constitution 60 State Of Andhra Pradesh vs Challa Ramkrishna Reddy & Ors, (2000) 5 SCC 2 61 A. K. Roy vs Union Of India And Anr, 1982 SCR (2) 272 62 Piyush Kantilal Mehta v. Commissioner Of Police, 1988 SCR Supl. (3)1081 63 Ranjit D. Udeshi v. State Of Maharashtra, 1965 SCR (1) 65 64 Art 19 (2) of the Findian Constitution



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(c) Therefore, viewed from any angle, it is explicit that S. 8 (c) of the Narcotic Drugs

and Psychotropic Substances Act, 1985 starkly violates Art 14, as the classification is

not reasonable and also violates Art 19 (1) (g) and does not fall within the reasonable

restrictions. Therefore, it is humbly prayed by the Petitioners that this Hon’ble Court

exercises its power to read down this impugned section as it is ultra vires the Findian

Constitution.

2.3. S. 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 violates Art 21

of the Findian Constitution.

(a) The Hon’ble Apex Court of Findia has declared that the “right to privacy” is an intrinsic

part of Art 21 of the Findian Constitution.65 The Hon’ble Court held that “Life and personal

liberty are inalienable rights. These are rights which are inseparable from a dignified

human existence. The dignity of the individual, equality between human beings and the

quest for liberty are the foundational pillars of the Indian Constitution”66.

(b)It was also explained by Hon’ble Justice D.Y. Chandrachud that life and personal

liberty are not creations of the constitution. These rights are recognised by the constitution

as inhering in each individual as an intrinsic and inseparable part of the human element

which dwells within67. This judgement was in consonance with the United Nations

Declaration of Human Rights68 and the International Covenant on Civil and Political

Rights69 that guarantee the right to privacy, which Findia is bound by.

(c) The Petitioners most reverently contend that imposing a blanket ban on the usage

of drugs completely, even when it done within the four walls of one’s house is

arbitrary and violative of Art 21 of the Findian Constitution. In the words of Hon’ble

Justice Indu Malhotra in the very famous S. 377 Case, An individual's choice to

engage in certain acts within their private sphere has been restricted by criminalising

the same. To harness such an essential decision, which showcases the individualism of

65 Justice K.S. Puttasamy (Retd) v. Union of India, (2017) 10 SCC 1 66 Ibid 67 Ibid 68 Art 12 of the United Nations Declaration of Human Rights 69 Art 17 of the International Covenant on Civil and Political Rights.



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a person, by tainting it with criminality would violate the individual's right to dignity

by reducing it to mere letters without any spirit.70

(d) The Petitioners humbly contend that restricting what a person does within the 4

walls of his house is unreasonable and arbitrary and therefore, considered a blatant

breach of Art 21 of the Findian Constitution. It is submitted before this Hon’ble Court

that if a person chooses to use narcotic drugs within the spheres of his house, wherein

he does not affect the general public by doing so, he should be allowed to do so, as it is

a matter of his choice and falls under the ambit of “freedom of choice” and “privacy”.

2.3.1. Not barred by Reasonable Restrictions

(a) The Learned Counsel for the Respondent may contend that every right is subject to

reasonable restrictions and so is privacy71. The Petitioners completely concede to that.

However, it is our humble contention that there is no iota or public order or decency or

morality that will be violated when a person consumes drugs within the four walls of

his house. Therefore, contending that this is barred by reasonable restrictions is not a

valid argument, in the considered view of the Petitioners. Hence, it is submitted before

this Hon’ble Supreme Court that viewed from any angle S. 27 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 is ultra vires the Findian Constitution as it

breaches the “Right to Privacy” guaranteed by the Findian Constitution

2.4. Consumption or Selling of Drugs does not require a penal punishment at all.

(a) The seminal question of law and the moot point here is whether the consumption

and selling of drugs fall within the ambit of a “crime” that requires a penal punishment.

Now arises the question as to what constitutes a crime.

(b) Legislation or state action which is manifestly arbitrary would have elements of

caprice and irrationality and would be characterized by the lack of an adequately

determining principle, as to what will amount to a crime. An "adequately determining

principle" is a principle which is in consonance with constitutional values. With respect

to criminal legislation, the principle which determines the "act" that is criminalized as

70 Navtej Singh Johar v. Union of India, WP(Crl.)No.76/2016 71 Justice K. S Puttasamy (Retd) v. Union of India, (2017) 10 SCC 1



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well as the persons who may be held criminally culpable, must be tested on the anvil of

constitutionality. The principle must not be determined by majoritarian notions of

morality which are at odds with constitutional morality72.

(b) Further Justice Indu Malhotra emphasized the need for a "sound" or "rational

principle" underlying a criminal provision in the case of Navtej Singh Johar v. Union

of India73. The Narcotics Drug and Psychotropic substance act, 1985 was enacted in

India by virtue of the Single convention on Narcotic Drugs, 1961. The Convention

recognises narcotic drugs to constitutes a serious evil for the individual and is fraught

with social and economic danger to mankind74. Thus, the underlying principle of

enacting the NDPS Act, 1985 is the same.

(c) It is the contented that this principle is not enough to pass through the anvil of

Indian constitution. The principle does not reason out how consumption of drugs will

cause social and economic danger. All theories of criminalisation should therefore offer

a justification; it is not enough simply to declare violations of autonomy worthy of

criminalisation upon the basis of wrongfulness alone.75

(d) Therefore, viewed from any angle it is explicit that there is no reasonable

justification for criminalizing the usage of drugs and therefore, it is humbly prayed

before this Hon’ble Court that the penal provisions be read down as the intent of the

Legislation can be attained even without penalizing the same.

3. Whether Section 35 of the NDPS Act, 1985 Which Attaches A Presumption Of

Culpability, Is Ultra Vires the Constitution Of Findia?

It is submitted before this Hon’ble Court that S. 35 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 is draconian and arbitrary. The Petitioners humbly pray before this

Hon’ble Apex Court of India to read down the S. 35 of the said Act using the doctrine of

severability,76 owing to the following reasons: As it prima facie violates Art 21 of the Findian

72 Joseph Shine v. Union of India (UOI) (27.09.2018 - SC) : 73 Navtej Singh Johar v. Union of India 74 Preamble of the Single Convention on Narcotic Drugs 1961. 75 James Slater, Public Goods and Criminalisation, 29 Denning L.J. 68 (2017). 76 Kihoto Hollohan v. Zachillhu And Others, 1992 SCR (1) 686



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Constitution [A]; violates Art 14 of the Findian Constitution [B] and also violates the cardinal

rule of criminal jurisprudence. [C].

3.1.Explicit Violation of Art 21

(a) The Blackstone ratio, which constitutes the principles of the criminal jurisprudence

expresses the idea that "It is better that ten guilty persons escape than that one innocent

suffer".77 The essence of criminal trial lies in that the accused is to be presuming innocent

until a charge is proved against him without any reasonable doubt78. It is submitted that it is a

settled principle of law that Article 21 includes within its ambit the presumption of

innocence, before being proved guilty. It was observed that Article 21, in view of its

expansive meaning, not only protects life and liberty, but also envisages a fair procedure.

Liberty of a person should not ordinarily be interfered with unless there exists cogent grounds

therefore79.

(b) The assurance of a fair trial is the first imperative of the dispensation of justice and the

central criterion for the Court to consider when a motion for transfer is made is not the

hypersensitivity or relative convenience of a party or availability of legal services or any like

grievance80. It is humbly submitted before this Hon’ble Court that the cardinal principles of

jurisprudence are violated under these provisions. As it has been reiterated in several cases81

the fundamental principles of criminal jurisprudence are:

a) That the onus lies affirmatively on the prosecution to prove its case beyond

reasonable doubt and it cannot derive any benefit from weakness or falsity of the

defence version while proving its case;82

b) That in a criminal trial the accused must be presumed to be innocent until he is proved

to be guilty;83 and

c) That the onus of the prosecution never shifts.84

3.1.1. Reversal in the Burden of Proof

77 Also reiterated by the Apex Court in: Sekar vs The State , Criminal Appeal (MD) No.402 of 2009 78 Rishi Kesh Singh And Ors. v. The State, 1970 CriLJ 132 79 Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra & Anr, [(2005) 5 SCC 294] 80 Maneka Sanjay Gandhi v. Rani Jethmalani, 1979 SCR (2) 378 81Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay, [1960] 3 S.C.R. 319. 324 82Rabindra Kumar Dey vs State Of Orissa : 1977 AIR 170, 1977 SCR (1) 439, 83Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay, [1960] 3 S.C.R. 319. 324 84Sunil Kumar Sharma vs State (Cbi): 139 (2007) DLT 407, I (2007) DMC 654



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(a) It is humbly submitted before this Hon’ble Court that usually the burden lays on the

prosecution to prove the guilt of the accused beyond reasonable doubt.85 Therefore, going by

the maxim, “actus non facit reum nisi mens sit rea”, the Prosecution is duty bound to

establish actus reus coupled with mens rea86, beyond reasonable doubt87; it should not merely

be a preponderance of probabilities88. It must first satisfy the evidential burden to show that

its allegations have something to support them. If it cannot satisfy this burden, the defence

may submit or the judge may direct that there is no case to answer, and the judge acquit89 the

accused.

(b) In the case of Hakim Mondal v. King Emperor90 , learned Chief Justice pointed out that

in a criminal case the onus probandi lies with the prosecution to prove beyond reasonable

doubt the guilt of the accused and that the onus never shifts. The burden of proving the guilt

of the accused is upon the prosecution and unless it relieves itself of that burden, the courts

cannot record a finding of the guilt of the accused.91 There is needless to refer to all rulings in

this article in as much as there is a catena of rulings as to this settled principle of law.

(c) But, the Narcotic Drugs and Psychotropic Substances Act, 198592, reverses the burden of

proof and presumes a culpable mind (mens rea) on the part of the accused and it is up to him

to disprove the same, and it is submitted that this is in clear contravention of first cardinal

principle of criminal jurisprudence. This provision casts a converse in the burden and the

burden lays with the accused to prove his innocence. The courts are obliged to follow the

sound Latin maxim, “Ei incumbit probatio qui dicit, non qui negat” which indicates that the

burden of proof is on he who asserts, not on he who denies93. It is vehemently contended that

‘Benefit of doubt’ is a right of the accused94 in any particular case, vides the provisions of

this draconian law, even the benefit of doubt is denied to the accused as he is deemed guilty,

the minute he is arrested, thereby clearly violating the basic principles of criminal

jurisprudence and the well-settled principles of law.

85Dahyabhai Chhaganbhai Thakker v. State Of Gujarat, AIR 1964 SC 1563 86 Kerala and Ors. v. Unni and Anr. (2007) 2. SCC 365 87 Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 88 Partap vs The State Of U.P, 1976 SCR (1) 757 89Sher Singh @ Partapa v. State Of Haryana on 9 January, 2015, CRIMINAL APPEAL No. 1592 OF 2011 90Hakim Mondal v. King Emperor AIR 1920 Cal 342 91Kali Ram vs State Of Himachal Pradesh, 1973 AIR 2773 92 S. 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985 93 State Of Haryana v. Jagbir Singh And Anr, 2003 (11) SCC 261 94Prakash vs State Of KarnatakaCRIMINAL APPEAL NO. 1682 OF 2005




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(d) In the Law Commission of Findia’s,95 forty-seventh Report on the Trial and Punishment

of Social and Economic offences, it was observed that —“No rule of criminal law is of more

important “than that which requires the prosecution to prove the accuser’s guilt beyond

reasonable doubt”. In the first place this means that it is for the prosecution to prove the

defendant’s guilt and not for the latter to establish his innocence; he is presumed innocent

until the contrary is proved. Secondly, they must satisfy the jury of his guilt beyond

reasonable doubt96. S. 35 of Narcotic Drugs and Psychotropic Substances Act, 1985,

presumes the guilty mind of the accused even before the prosecution establishes a story that

withstands the pull of reasonable doubt97. This is in gross violation of fundamental principles

of criminal jurisprudence.

3.1.2. Basic Human Right of Presumption of Innocence is starkly violated

(a) The principle of presumption of innocence is an essential attribute of fair trial. The

presumption of innocence is a human right.98In a plethora of judicial pronouncements,

including the Katcherla Venkata Sunil dictum,99 it has been affirmed that the presumption of

innocence is available to a under the fundamental principle of criminal jurisprudence that

every person shall be presumed to be innocent unless he is proved guilty by a competent

court of law.

(b) A Seven-Judge bench of the Supreme Court clearly laid down that the procedure

contemplated in Art. 21 to deprive a person of personal liberty has to be a “right, just, fair and

reasonable” one100. Further, it has also been reiterated by this Hon’ble Court that101 to say

that Art. 21 virtually meant, “No person shall be deprived of life or personal liberty except

according to just, fair and reasonable procedure established by valid law.”

(c) The moot question here is whether the right to fair trial includes a right to be presumed

innocent till proven guilty. In other words, the question is, does a fair trial necessarily include

a presumption of innocence in favour of the accused. It is now an established principle of

95 Law Commission, forty-seventh report, Trial and Punishment of social and Economic Offences 96 K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605 97 C.S.D. Swami v. The State, AIR 1960 SC 7, 98Narender Singh & Anr. v. State of M.P. (2004) 10 SCC 699 99Katcherla Venkata Sunil v. Dr. Vanguri Seshumamba And Ors,2008 CriLJ 853 100 Maneka Gandhi v. Union of India, 1978 SCR (2) 621 101Bachan Singh v. State of Punjab,AIR 1980 SC 898 : 1980 Cri LJ 636





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constitutional interpretation that where municipal law is silent on a particular issue,

international humanitarian law should be resorted to for interpretation.102

(d) Presumption of innocence is expressly mentioned as a right in various covenants of

international law that include the International Covenant on Civil and Political Rights,

1963103 and the Universal Declaration on Human Rights, 1948.104 Apart from Findia being a

signatory to both, it is now widely accepted that these principles are a part of customary

international law.105 Therefore, Art.21 will have to be interpreted in consonance with the

ICCPR and UDHR, in the Petitioner’s humble submission.

(e) Based on this, the Petitioners reverently submit that this will mean that presumption of

innocence is part of Art.21. Thus, ‘presumption of innocence’ is a fundamental right forming

part of Art.21 of the Constitution. A right, which is part of Art. 21 thus can be subject to

statutory restriction only if the statute is just, fair and reasonable. Therefore, the Petitioners

submit with utmost reverence that S. 35 of the Narcotic Drugs and Psychotropic Substances

Act, 1985 is in stark violation of the right to free and fair trial that is guaranteed under the

constitution106. Hence, the petitioners pray that this provision should be read down by this

Hon’ble Court using the doctrine of severability107.

3.2.Downright breach of Art 14

(a) The Constitution of Findia guarantees equality before law and equal protection of law to

all its citizens.108 The right to equality is regarded as one of the corner-stones of the Findian

democracy109 and the ‘fon juris110 of the Findian Constitution. Art.14 has two guarantees

vested in it that is, ‘equality before law’ and ‘equal protection before law.’ The first is a

negative concept which ensures that there is no special privilege for a particular person and

102Vishaka v. State of Rajasthan, AIR 1997 SC 3011; Jolly George Verghese v. Bank of Cochin, AIR 1980 SC

470. 103Art. 14(2) of the International Covenant on Civil and Political Rights 104 Art. 11(1) of the Universal Declaration on Human Rights 105 Noor Aga vs State Of Punjab & Anr, (2008) 16 SCC 417 106 Sahara India Real Estate v. Securities & Exch.Board of India, 2012] 174 Comp Cas 154 (SC) 107 D.S. Nakara & Others v. Union of India, 1983 SCR (2) 165 108 Art 14 of the Findian Constitution. 109 The Kerala Bar Hotels Association v. State Of Kerala, 2015 SCC OnLine SC 1385

110Navtej Singh Johar vs Union Of India Ministry Of Law, WRIT PETITION (CRIMINAL) NO. 76 OF 2016



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none is above the law.111 The latter is positive in content, and postulates the application of the

same laws alike and without discrimination to all persons similarly situated.112

(c) Art 14 permits classification only when it is reasonable and based on the principle of

intelligible differentia113. It is the humble submission of the Petitioners that Art 14 is being

explicitly violated vide S. 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985 as

the classification in the instant matter is not reasonable classification based on intelligible

differentia.

3.2.1. Test of Reasonable Classification

In order to pass the test of reasonable classification two conditions must be fulfilled,114

namely, (i) that the classification must be found on an intelligible differential which

distinguishes persons or things that are grouped together from others left out of the

group.115(ii) That, differential must have a rational relation to the object sought to be achieved

by the statue in question.116

3.2.1.1. The classification done by the impugned Section is unreasonable.

The NDPS act classifies the accused of this act from other crimes and the procedure in this

act is against the normal procedures followed in a criminal trial. This classification is

arbitrary and it violates the rights of the accused.

i. There is no intelligible differentia.

(a) The expression intelligible differentia means a difference capable of being understood. It

is a factor that distinguishes one in different state or class from another which is capable of

being understood.117 There is no intelligible differentia in classifying the accused under the

Narcotic Drugs and Psychotropic Substances Act, 1985 and the accuseds who are tried under

ordinary proceedings, in the humble submission of the Petitioners.

111M.G. Badappanavar v. State of Karnataka, (2001) 2 SCC 226 112Royappa E.P v. State of T.N., AIR 1974 SC 555 113 The State Of West Bengal v. Anwar Ali Sarkar, 1952 1 SCR 284 114 Harakchand Ratanchand Banthia v. Union of India, (1969) 2 SCC 166 115 Hanif v. State of Bihar, AIR 1958 SC 731 116 Budhan Chowdry v. State of Bihar, 1955(1) SCR 1045 (1049) , Pathumma v. State of Kerala, AIR 1978 SC

771; Babu Ram v. State of U.P(1995) 2 SCC 689 (para 37) 117Suneel Jatley Etc vs State Of Haryhana, 1985 SCR (1) 272



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(b) There is an arbitrary classification between the accused. A law which constitutes the trial

of any cases by special courts or by a procedure which differs substantially from the ordinary

procedure to the prejudice of the accused118 offends against Art. 14.119 The accused in any

criminal cases should be given the equal rights and a fair trial should be conducted120. Fiar

trial is not only a constitutional right, it is a right guaranteed by the international law itself

through international instruments like the International Covenant on Civil and Political

Rights121 and the Universal Declaration of Human Rights122. In fact, even the international

humanitarian law guarantees right to free trial for accuseds even in war crimes123 without

transferring the onus probandi from the Prosecution.

(c) However, the Narcotic Drugs and Psychotropic Substances Act, 1985124 Act takes away

the rights that is conferred to the accused and puts heavy burden on them. When prima facie,

there is no classification at all in the Statute and no difference peculiar to any individual or

class, and yet the law hits only a particular individual or class then the presumption that the

classification is reasonable is rebutted.125 The presumption is of no avail when a law is

discriminatory on the face of it126 and it is patent that the legislature made no attempt to make

a classification at all.127

(d) The Petitioners humbly contend that there is no rationale behind this special classification

of accused under the Narcotic Drugs and Psychotropic Substances Act, 1985. The intent of

the Legislature for making this enactment was to bring about stringent measures to reduce the

usage of drugs128 which can be achieved even when the status quo of the fundamental

principles of criminal jurisprudence are intact and the rights are given to the accused. The

classification made by the law would be unreasonable that if the classification made is

without any reasonable basis and that the subjects by the law had no feature to distinguish

them from other subjects similarly situated so as to justify a special treatment.129

118 Rayala Corp. v. Director of Enforcement, (1970) 1 SCR 639 (648) 119 Kathi Ranning Tawat v. State of Saurastra,(1952) SCR 435 120 J. Jayalalithaa v. State of Karnataka, (2014) 2 SCC 401. 121 Art 14 of the International Covenant on Civil and Political Rights. 122 Art 10 of the Universal Declaration of Human Rights 123 The Geneva Convention, The Rome Statute. 124 S. 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985 125 Chiranjith Lal Chowdhuri v. Union of India, 1950 SCR 869. 126Garg R.K v. Union of India, AIR 1981 SC 2138 127State of W.B v. Anwar Ali Sarkar, 1952 SCR 284 128 Preamble of the Narcotic Drugs and Psychotropic Substances Act, 1985. 129 Ramakrishna Dalmia , Shri v. Tendokar, Justice S.R., AIR 1958 SC 538 (552); Irani P. J v. State of Madras,

AIR 1961 SC 1731; State of Rajasthan v. Manohar Singhji, 1954 SCR 996



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ii. There is no rational nexus between the object the act seeks to achieve

(a) When a law is challenged as offending against the guarantee in Art.14, the first duty of the

court is to examine the purpose and policy of the Act and then to discover whether the

classification made by the law has a reasonable relation to the object which the legislature

seeks to obtain.130The object of the act points out that an urgent need was felt for the

enactment of a comprehensive legislation on narcotic drugs and psychotropic substances,

which, inter--alia, should consolidate and amend the existing laws relating to narcotic drugs,

strengthen the existing controls over drug abuses make provisions for exercising effective

control over psychotropic substances.131

(b) The object of the act132 can be achieved even when the accused are given ordinary rights

like presumption of innocence of accused and when the burden of proof lies on the

prosecution. But S. 35 of the said Act doesn’t presume innocence of the accused and it is on

the accused to that he is not guilty. It is submitted that this provision is prima facie arbitrary.

(c) It must be borne in mind that severer the punishment, greater has to be the care taken to

see that all the safeguards provided in a statute are scrupulously followed.133There is a

paradox at the heart of all criminal procedure in that the more serious the crime and the

greater the public interest in securing convictions of the guilty, the more important do

constitutional protections of the accused become.134

(d) The starting point of any balancing enquiry where constitutional rights are concerned

must be that the public interest in ensuring that innocent people are not convicted and

subjected to ignominy and heavy sentences massively outweighs the public interest in

ensuring that a particular criminal is brought to hook135. Hence the presumption of innocence

serves not only to protect a particular individual on trial, but to maintain public confidence in

the enduring integrity and security of the legal system.136 So, it can be concluded that there is

no direct or rational nexus between the classification and the object that is determined to be

sought137. Therefore, the Petitioners reverently contend that the classification made by S. 35

130 Kedar Nath Bajoria v. State of W.B., AIR 1953 SC 404 131 Law Commission, One Hundred and Fifty Five, the Narcotic Drugs and Psychotropic Substance 132 Preamble of the Narcotic Drugs and Psychotropic Substances Act, 1985. 133 State of Punjab v. Baldev Singh, (1999) 3 SCC 977 134 Noor Aga vs State Of Punjab & Anr (2008) 16 SCC 417. 135 Rajiv Singh v. The State Of Bihar And Anr, 2016 (I) 1 SC 136 State v. Coetzee [(1997) 2 LRC 593] 137 Nagpur Improvement Trust v. Vithal Rao And Others , 1973 SCR (3) 39



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of the Narcotic Drugs and Psychotropic Substances Act, 1985 violates Art. 14 of the Findian

Constitution.

It is a settled principle that this Hon’ble Court is the ultimate interpreter of laws in Findia138

and any provision or statute that is in contravention with the most Supreme Law of the

nation, the Findian Constitution will be struck down by this Hon’ble Court139 using its power

of judicial review140. Therefore, the Petitioners humbly pray that S. 35 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 should be read down by this Hon’ble Court as it

explicitly violates Art 21 and Art 14 of the Findian Constitution.

4. Whether The Consumption of Drugs Can Fall Within The Protective Cover of

Article 25?

It is submitted with utmost reverence before this Hon’ble Court that the usage of drugs will

fall within the protective purview of Art 25 of the Findian Constitution as it falls into the

ambit of an “essential religious practice” [A]; It is not barred by the reasonable restrictions

laid down by the Constitution [B] and the cult amount to being a religious denomination

under Art 26 of the Findian Constitution; thereby can avail the rights under Art 26 to define

the tenets of its own religion [C].

4.1.Scope to Practice Religion Under Art 25 and Art 26 of the Findian Constitution.

(a) The protection guaranteed under Article 25 of the Constitution is not confined to matters

or beliefs but extends to acts done in pursuance of religion and, therefore contains a guarantee

for rituals, ceremonies141, observances142 and modes of worship143 which are essential or

integral part of the religion144. It is submitted most deferentially that the Petitioners here

claim the right to consume “recreational drugs” as a means to attain nirvana which is a pre

requisite of their particular cult145, which amounts to being a religious denomination as it will

138 Kumari Shrilekha Vidyarthi vs State Of U.P, 1991 AIR 537 139 S.R. Bommai And Others . vs Union Of India And Others, JT 1994 (2) SC 215 140 Tata Cellular vs Union Of India, 1994 SCC (6) 651 141 Mahant Sri Jagannath Ramanuj Das v. The State Of Orissa And Another, 1954 SCR 1046 142 N.Adithayan v. Travancore Devaswom Board, (2002) 8 SCC 106. 143 Pannalal Bansilal Pitti & Ors. v. State Of Andhra Pradesh & Anr, 1996 SCC (2) 498. 144 Commissioner of Police Vs. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770 145 Page 4, Moot Court Proposition



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be proved. This definitely amounts to being a religious practice and therefore, falls within the

protection of Art 25.

(b) Our Constitution-makers have not attempted to define what “religion” is and it is certainly

not possible to frame an exhaustive definition of the word “religion” which would be

applicable to all classes of persons146. Religion is not necessarily theistic.147 Religion is the

belief which binds spiritual nature of men to super-natural being148. It includes worship,

belief, faith, devotion etc. and extends to rituals149. Religious right is the right of a person

believing in a particular faith to practice it, preach it and profess it.150

(c) Each person, belonging to any religion, must get an assurance from state that he has the

protection of law to freely practise, profess and propagate his religion and freedom of

conscience151. Otherwise, the rule of law will become replaced by individual perception of

one’s own presumptions of good social order.152 The individual’s right to worship is a legal

right and not a permissive one153. Since the freedom belongs to every person, the freedom of

one cannot encroach upon a similar freedom belonging to other persons154.

(d) It is submitted that Article 25 protects the individual right to worship. Subject to the

restrictions which this Article imposes155, every person has a fundamental right under our

Constitution not merely to entertain such religious beliefs as may be approved of by his

judgement or conscience but to exhibit his belief and ideas in such overt acts as are enjoined

or sanctioned by his religion and further to propagate his religious views or the edification of

others.156 It is the humble submission of the Petitioners that not allowing a cult, which is a

religious denomination to dictate its own norms of religion, in order to attain nirvana which is

146 Ratilal Panachand Gandhi v. The State of Bombay, 1954 AIR 388 147 The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Swamiar of Shirur Mutt, AIR

1954 SC 282. 148 Lily Thomas v. Union of India, (2000) 6 SCC 224. 149 Aruna Roy v. Union of India, (2002) 7 SCC 368 150 P. M A. Metroplitan v. Moran Mar Marthoma, AIR 1995 SC 2001. 151 S.P. Muthu Raman v. The Chief Secretary & Others. Writ Petition (MD)No.11444 of 2011 & M.P.(MD)No.1

of 2011. 152 State of Karnataka v. Dr. Praveen Bhai Thogadia (2004) 4 SCC 684 153 Nar Hari Shastri v. Shri Badrinath Temple Committee 1952 SCR 849 154 Stainislaus Rev. Vs. State of M.P. AIR 1975 MP 163 155 Art 25 (1) of the Findian Constitution. 156 Ratilal Panachand Gandhi Vs. State Of Bombay (1954) SCR 1055; Stainislaus Rev. Vs. state of M.P. AIR

1975 MP 163; The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Swamiar of

Shirur Mutt, AIR 1954 SC 282; Dargah Committee vs. Syed Hussain Ali , AIR 1961 SC 1402 (¶ 33)



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quintessential to their beliefs157 tantamount to a clear violation of Art 26 and Art 25 of the


4.1.1. Scope of Essential Religious Practice Test.

(a) The Genesis of the phrase “Essential Religious Practice” is found in the Constitutional

Assembly Debates and in the Observances of Dr. B.R.Ambedkar.158 The words “practice of

Religion” under Article 25(1) protects not only the freedom of Religious beliefs, but also acts

done in pursuance of Religion159 What constitutes the essential part of a religion is primarily

to be ascertained with reference to the doctrines of that religion itself.160 In order that the

practices in question should be treated as a part of religion they must be regarded by the said

religion as its essential and integral part; in other words, the protection must be confined to

such religious practices as are an essential and an integral part of it and no other161.

(b) In a given religious practice is an integral part of the religion or not, the test always would

be whether it is regarded as such by the community following the religion or not. In cases

where conflicting evidence is produced in respect of rival contentions as to competing

religious practices the Court may not be able to resolve the dispute by a blind application of

the formula that the community decides which practice in [sic] an integral part of its religion,

because the community may speak with more than one voice and the formula would,

therefore, break down.162

(c) This question will always have to be decided by the Court and in doing so, the Court may

have to enquire whether the practice in question is religious in character, and if it is, whether

it can be regarded as an integral or essential part of the religion, and the finding of the Court

on such an issue will always depend upon the evidence adduced before it as to the conscience

of the community and the tenets of its religion.163 A religious practice to receive protection

under Article 25(1) it must be “genuinely” and “conscientiously” held by persons claiming

157 Page 4, Moot Court Proposition 158 Parliament of India, Constitutional Assembly Debates, Vol. VII, 2 December 1948, (speech of Dr.

Ambedkar), available at http://164.100.47.132/ LssNew/constituent/vol7p18.html 159 Adelaide Company of Jehovah‟s Witnesses Incorporated v. The Commonwealth 9 67 CLR 116 160 Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur

Mutt 1954 SCR 1005 161 Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors. (1962) 1 SCR 383 : AIR 1961 SC 1402 162 K.V. Narayanan Namboodiri. v. State Of Kerala And Ors, AIR 1985 Ker 160 163 Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. (1964) 1 SCR 561 at 582 : AIR 1963 SC

1638



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such rights164. Religious beliefs and practices must be consistently and not “idly” held, and

should not emanate out of “perversity”. The Constitutional fabric of our country permits

religious beliefs and practices to exist, regardless of whether or not they appeal to the rational

sensibilities of this Court, or others165.

(d) Thus, reference is required to be made to the doctrines and tenets of a religion, its

historical background, and the scriptural texts to ascertain the “essentiality” of religious

practices. The “essential practices test” in its application would have to be determined by the

tenets of the religion itself166. The practices and beliefs which are considered to be integral by

the religious community are to be regarded as “essential” and afforded protection under

Article 25. The only way to determine the essential practices test would be with reference to

the practices followed since time immemorial, which may have been scripted in the religious

texts of the particular religion.

(e) In the factual matrix of the instant matter, it is explicit that the cult is in prevalence from

1950s and ever since its inception, the cult has been indulging in the usage of recreational

drugs that help them attain nirvana.167 So, the Petitioners submit with utmost respect before

this Hon’ble Apex Court that it tantamounts to being an “essential religious practice” as it is

viewed in that context by the particular cult and thereby can accord protection under Art 25

of the Findian Constitution.

(f) The tenets of the religious denomination dictate what is essential and what is not, and

since the cult, ever since its inception categorized the use of recreational drugs as a means to

attain nirvana168, the Petitioners most reverently submit that it will amount to an “essential

religious practice”; thereby shielded by Art 25 of the Findian Constitution

4.2. It is not barred by “reasonable restrictions” laid down by the Findian Constitution.

(a) It is a well settled legal principle that no fundamental right stands on an absolute

footing169 and it is subject to reasonable restrictions170 laid down by the Findian Constitution.

164 Bijoe Emmanuel & Ors vs State Of Kerala & Ors, 1986 SCR (3) 518 165 Ibid. Also, Dissenting Opinion of Indu Malhotra., J in “Indian Young Lawyers Association vs The State of

Kerala”, WRIT PETITION (CIVIL) NO. 373 OF 2006 166 Dhavan and Nariman, ‘The Supreme Court and Group Life: Religious Freedom, Minority Groups, and

Disadvantaged Communities’, 259. 167 Page 4, Moot Court Proposition. 168 Page 4, Moot Court Proposition. 169 Khoday Distilleries Ltd v. State Of Karnataka, 1995 SCC (1) 574



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Just like any other right, Art 25 of the Findian Constitution also lays down restrictions to the

practice of religion vide “public order, morality and health”.171

(b) It is the humble submission of the Petitioners that the usage of drugs does not fall within

the ambit of reasonable restrictions. Firstly, addressing the issue of “morality, public order

and health” concurrently, consumption of recreational drugs has its own health benefits.172

Moreover, it is pertinent to point out here that the usage of drugs is purely for religious

purposes and not for other reasons. According to the factual matrix of the instant case, the

cult has been indulging in the usage of recreational drugs ever since its inception in the

1950s173 and hence, there is a measured quantity in which they use drugs in order to attain

nirvana. Therefore, this rules out the health aspect of the restrictions as drugs have their own

benefits and is being used only in minimalistic quantities to attain nirvana.

(c) Usage of drugs in the present matter is purely for religious purposes and for attaining

nirvana which is a must for the people belonging to the particular cult174. Therefore, it is

humbly submitted by the petitioners that what is morality and what is not is to be dictated by

the tenets of the religion itself, as it is a very relative and subjective term175. For example,

what is immoral for Hindus to do is moral for the Mohammadens to do. Therefore, what is

moral and immoral is to be decided by the religion itself176 and it is not for this Hon’ble Court

to delve into, in the considered view of the Petitioners.

(d) Therefore, it is most respectfully submitted before this Hon’ble Court that what is

morality is to be determined by the Cult itself and since the cult ever since its inception

treated drugs to be a part of their religion, it does not fall within the ambit of “immoral” and

thereby does not violate morality.

(e) Moving onto the limb of public order, it has always been the first and foremost duty of the

State and the priority of this Court to maintain peace and public order in the nation177. Since

170 The State Of West Bengal v. Subodh Gopal Bose And Others, 1954 SCR 587 171 Art 25 (1) of the Findian Constitution.

172 Celia JA Morgan, Mark Muetzelfeldt, ,Amanda Fielding, and H Valerie Curran: Benefits associated with

psychoactive drugs: findings of an international survey of active drug users, US National Library of Medicine

and National Institutes of Health, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4107777/

173 Page 4, Moot Court Proposition. 174 Page 4, Moot Court Proposition 175 State Of Rajasthan And Ors v. Sajjanlal Panjawat & Ors, 1974 SCR (2) 741 176 Sri Sri Sri Lakshamana v. State Of Andhra Pradesh & Anr, 1996 AIR 1414 177 Vijay Narain Singh v. State Of Bihar & Ors, 1984 SCR (3) 435

https://www.ncbi.nlm.nih.gov/pubmed/?term=Morgan%20CJ%5BAuthor%5D&cauthor=true&cauthor_uid=23438502

https://www.ncbi.nlm.nih.gov/pubmed/?term=Muetzelfeldt%20M%5BAuthor%5D&cauthor=true&cauthor_uid=23438502

https://www.ncbi.nlm.nih.gov/pubmed/?term=Fielding%20A%5BAuthor%5D&cauthor=true&cauthor_uid=23438502

https://www.ncbi.nlm.nih.gov/pubmed/?term=Curran%20HV%5BAuthor%5D&cauthor=true&cauthor_uid=23438502



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drugs in the instant matter is consumed only for religious purposes, in limited quantity only

for the attainment of nirvana,178 the object is clear and the followers have only this object in

mind while consuming drugs. Therefore, there will not be any violation of public order also

as the object of consuming drugs in itself is very clear and deeply etched in the minds of the

followers of the cult. Therefore, it is the reverent submission of the Petitioners that the usage

of drugs falls within the umbrella of an “essential religious practice”, rightfully protected by

Art 25 and is also not barred by the reasonable restrictions laid down by the said Article and

falls within the touchstone of the Findian Constitution.

4.3. The Cult amounts to being a religious denomination.

(a) Article 26 of the Constitution guarantees the freedom to every religious denomination, or

sect thereof, the right to establish and maintain institutions for religious or charitable

purposes, and to manage their own affairs in matters of religion. The right conferred under

Article 26 is subject to public order, morality and health and not to any other provisions in

Part III of the Constitution.179 A religious denomination or organization enjoys complete

autonomy in matters of deciding what rites and ceremonies are essential according to the

tenets of that religion.180

(b) A collection of individuals classed together under the same name: a religious sect or body

having a common faith and organization and designated by a distinctive name “Religious

Denomination”.181 Each of the sects or sub-sects of the Hindu religion could be called a

religious denomination, as such sects or sub-sects, had a distinctive name. The words

“religious denomination” in Article 26 of the Constitution must take their color from the

word “religion”, and if this be so, the expression “religious denomination” must satisfy three

conditions”:182

• a common faith;

178 Page 4, Moot Court Proposition

179 V.Anbazhagan v. The Comissioner, W.P.No.14417 of 2019 180 The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri

Shirur Mutt, 1954 AIR 282 181 The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri

Shirur Mutt1954 AIR 282 182 S.P. Mittal v. Union of India & Ors (1983) 1 SCC 51







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• common organization; and

• designation by a distinctive name

(c) Religious Denomination mean identity of its doctrines, creeds, and tenets, which are

intended to ensure the unity of the faith which its adherents profess, and the identity of the

religious views which bind them together as one community183 The meaning ascribed to

religious denomination by this Court in Shrirur Mutt184 case and subsequent cases is not a

strait jacket formula; but a working formula. It provides guidance to ascertain whether a

group would fall within a religious denomination or not. If there are clear attributes that there

exists a sect, which is identifiable as being distinct by its beliefs and practices, and having a

collection of followers who follow the same faith, it would be identified as a “religious

denomination”.

(d) Satiating the essentials one by one, in lieu of the factual matrix of the present case, the

cult has a common faith towards attaining nirvana, common organization that is led by one,

Mr. Kishu Rado and it has been in prevalence since the 1950s. Though the cult may not be a

formal, proper organization; It will be noticed that these cults possess no distinctive names

except that of their founder- teacher and had no special organization except a vague, loose –

un-knit one. The really distinctive feature about each one of these sects was a shared belief in

the tenets taught by the teacher-founder. We take care to mention here that whatever the

ordinary features of a religious denomination may be considered to be, all are not of equal

importance and surely the common faith of the religious body is more important than the

other features.185

(e) Under Article 26(b), therefore, a religious denomination or organization enjoys complete

autonomy in the matter of deciding as to what rites and ceremonies are essential according to

the tenets of the religion they hold and no outside authority has any jurisdiction to interfere

with their decision in such matters186. No outside authority has any right to say that these are

not essential parts of religion and it is not open to the secular authority of the State to restrict

183 Sardar Syedna Taher Saifuddin Saheb v. State of Bombay 1962 Supp (2) SCR 496 : AIR 1962 SC 853 Per

Ayyangar, J 184 The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri

Shirur Mutt1954 AIR 282

185 S.P. Mittal v. Union of India & Ors; (1983) 1 SCC 51 Per Chinnappa Reddy J. 186 Adi Saiva Sivachariyargal Nala Sangam v. Govt. Of Tamil Nadu & Anr (2016) 2 SCC 725





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or prohibit them in any manner they like under the guise of administering the trust estate187.

A secular judge is bound to accept that belief – it is not for him to sit in judgment on that

belief, he has no right to interfere with the conscience of a donor who makes a gift in favor of

what he believes to be the advancement of the religion and the welfare of his community or

mankind.188

(f) Therefore, it is explicit that the cult amounts to being a religious denomination and

thereby shielded by Art 26 and they have the right to dictate what is essential and what is not

essential to their particular followers. The Respondents submit that therefore, what is

essential and what is not is to be dictated by the cult and therefore, the consumption of drugs

will have protection under Art 25 of the Findian Constitution as an “Essential Religious

Practice”

187 Tejraj Chhogalal Gandhi And Anr. v. State Of Madhya Bharat And Ors, AIR 1958 MP 115 188 Ratilal Panachand Gandhi v. The State of Bombay & Ors (1954) SCR 1055 : AIR 1954 SC 388



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PRAYER

Wherefore in the lights of the issues raised, arguments advanced and authorities cited it is

most humbly and respectfully prayed before this Hon’ble Court that it may be pleased to

adjudge and declare that:

(i) S. 8 (c) and S. 27 of the Narcotic Drugs and Psychotropic Substances Act is ultra

vires the Findian Constitution

(ii) S. 35 of the the Narcotic Drugs and Psychotropic Substances Act is ultra vires the

Findian Constitution

(iii) Consumption of drugs is protected by S. 25 of the Findian Constitution for this

particular cult

(iv) The Consumption, usage and selling of Drugs does not require a penal provision.

AND/OR pass any other order/orders as this Hon’ble Court deems fit and proper in the

circumstances of the given case and in the light of Justice, Equity and Good Conscience and

thus renders justice.

The Counsel pleads this Hon’ble Court to bind “Sacramentum habet in se tres comites,

veritatem, justitiam et judicium veritas habenda est in jurato, justitia et judicium in judice”

And for this act of kindness and justice the PETITIONERS shall be duty bound and

forever pray

All of which is submitted with utmost reverence

Place: ________ ,Findia S/d_____________

Date: September 2019 COUNSEL FOR THE PETITIONERS

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