BEFORE THE HON’BLE SUPREME COURT OF KINDIA

IN THE MATTER OF:

MR.ZICO ... APPELLANT

V.

THE UNION OF KINDIA ... RESPONDENT

SPECIAL LEAVE PETITION NO. ****/2020

ON SUBMISSION TO THE HON’BLE SC OF KINDIA

UNDER ART. 136 OF THE CONST. OF KINDIA

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

0
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS……………………………………………………………….…..2
INDEX OF AUTHORITIES ………………………………………………………………....3-4
STATEMENT OF JURISDICTION………………………………………………………..…..5

STATEMENT OF FACTS………………………………………………………………...….6-8

ISSUES RAISED………………………………………………………………………………...9

SUMMARY OF ARGUMENTS…………………………………………………………...10-11

ARGUMENTS ADVANCED……………………………………………………..…………...12

A. WHETHER THE NOTIFICATION AUTHORISING WIRE INTERCEPTION IS

CONSTITUTIONALLY VALID……………………………………………………….12

1)Due process was followed…………………………………………………….......12-13

2)Administrative order issued under the correct provisions of law………………..13-14

B. WHETHER A STATEMENT AMOUNTING TO CONFESSION UNDER SECTION

67 OF NDPS ACT IS CONSTITUTIONALLY ADMISSIBLE IN EVIDENCE……...14

1) Confession was voluntary……………………………………………….. …15-16

C. THE TWIN CONDITIONS FOR BAIL UNDER SECTION 37 OF NDPS ACT ARE

CONSTITUTIONALLY VALID………………………………………………...…16-17

D. WHETHER MR. ZICO’S RIGHT PROVIDED UNDER ARTICLE 20(3) AND

ARTICLE 21 OF THE CONSTITUTION ARE VIOLATED OR NOT………………17

1)Right under Article 20(3) of the Constitution is not violated………………...18-19

2) Right under Article 21 of the Constitution is not violated…………………..19-20

PRAYER……………………………………………………………………………………..21

1
 LIST OF ABBREVIATIONS

"& " And

AIR All India Report

Anr. Another

CrPC Criminal Procedure Code

Dept. Department

I.T. Information Technology

NDPS Narcotic Drugs and Psychotropic Substances

Supplement.

S. Section

S.C. Supreme Court

S.C.C. Supreme Court Case

S.C.R. Supreme Court Reporter

Ed Editor

Hon’ble Honourable

Edn. Edition

T.N. Tamil Nadu

U.P. Uttar Pradesh

v. Versus

Vol. Volume

2
 INDEX OF AUTHORITIES

STATUTORY COMPILATIONS
➔ CODE OF CRIMINAL PROCEDURE, 1973
➔ CONSTITUTION OF INDIA
➔ NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES, 1985
➔ INDIAN EVIDENCE ACT, 1872
➔ INDIAN TELEGRAPH ACT, 1885

BOOKS AND DIGESTS

➔ Dibyajyoti De, Guide to Narcotic Drugs and Psychotropic substances Act (1 st
edn,Wadhwa and Company Nagpur, 2003)
➔ H.M Seervai, Constitutional Law of India (4 th edn, Universal Law PublishingCo.2010)
➔ M.P. Jain, Indian Constitutional Law ( 7 th edn, LexisNexis, 2014)
➔ P.K Majumdar and R.P Kataria, Commentary on the Constitution of India (10 th
edn,Orient Publishing Company, 2009)
➔ Ratanlal And Dhirajlal, The Law of Evidence (25th edition, Lexis Nexis, 2013)

TABLE OF CASES
1. A.K Gopalan v State of Madras
2. Abdul Rashid Ibrahim Mansuri v. State Of Gujarat
3. Ankush Kumar v. State of Punjab
4. Bhanabhai Khalpabhai v. Collector of Customs and Anr.
5. Dharambir v. Central Bureau of Investigation
6. Govind v. State of Madhya Pradesh
7. Jethamal Pithaji v. Asstt. Collector of Customs
8. Kanhaiyalal v. Union of India
9. Kripal Mohon Virmani v. State
10. M. Prabhulal v. Asstt. Director, Directorate of Revenue Intelligence

3
11. Maneka Gandhi v. Union Of India
12. Pon Adithan v. Dy. Director, Narcotics Control Bureau
13. People’s Union for Civil Liberties v. Union of India.
14. R.C Mehta v. State of West Bengal
15. Raj Kumar Karwal v. Union of India
16. Raja Narayanlal Bansilal v. Manic Fhiroz Mistry
17. State v. Mohd. Afzal & Ors
18. Union of India v. Shiv Shanker Kesari
19. Veera Ibrahim v. State of Maharashtra
20. V.S Kuttan Pillai v. Ramakrishnan and Anr.

4
 STATEMENT OF JURISDICTION

THE RESPONDENT STANDS BEFORE THE HON’BLE SUPREME COURT OF KINDIA IN

RESPONSE TO THE APPEAL FILED BY THE APPELLANT UNDER ART. 136 OF THE
CONSTITUTION OF KINDIA

5
 STATEMENT OF FACTS

1. Kindia is positioned on the Hadenese subcontinent in south-central Luthania. And is among

the most populated countries of the world. Having gained independence a mere 70 years
back, Kindia is among the largest and youngest democracies of the world placing special
emphasis on personal liberty.Though an independent and sovereign country, the Kindian
Constitution draws its inspiration from various countries.
2. Kindia shares its borders with 2 other countries, Bakistan on the Northwest and Mina on
the Eastern side.Though Kindia has successfully maintained friendly relations with the 2
countries for the better half of 5 decades little was accomplished to tackle the smuggling
of narcotic substances from Bakistan and Mina into Kindia.
3. In order to combat the ever increasing menace of drugs Kindia enacted the NDPS Act
which provides for stringent punishment and took a preventive theory of punishment in
dealing with offences which come under the purview of the act.
4. In the year 2013 the central government published an order in the official gazette whereby:
“Notwithstanding anything in the Code or in any other law for the time being in force, the
evidence collected through the interception of wire, electronic or oral communication
under this section shall be admissible as evidence against the accused in the Court during
the trial of a case : Provided that, the contents of any wire, electronic or oral communication
intercepted pursuant to this section or evidence derived therefrom shall not be received in
evidence or otherwise disclosed in any trial, hearing or other proceeding in any Court
unless each party, not less than ten days before the trial, hearing or proceeding, has been
furnished with a copy of the order of the Competent Authority, and accompanying
application, under which the interception was authorised or approved: Provided further
that, this ten days period may be waived by the judge, trying the matter, if he finds that it
was not possible to furnish the party with the above information ten days before the trial,
hearing or proceeding and that the party will not be prejudiced by the delay in receiving
such information.

Explanation.—For the purposes of this section—

6
 1. 'wire communication’ means any aural transfer made in whole or part through the
use of facilities for the transmission of communications by the aid of wire, cable or
other like connection between the point of origin and the point of connection,
between the point of origin and point of reception (including the use of such
connection switching station) and such term includes any electronic storage of such
communication;

2. ‘oral communication’ means any oral communication uttered by a person exhibiting

an expectation that such communication is not subject to interception under
circumstances justifying such expectation, but such term does not include any
electronic communication;

3. ‘electronic communication’ means any transfer of signs, signals, writings, images,

sounds, data or intelligence of any nature transmitted in whole or in part by a wire,
radio, electromagnetic, photo electronic or photo optical system that affects inland
or foreign commerce but does not include—

4. the radio portion of a cordless telephone communication that is transmitted between

the wireless telephone hand-set and the base unit;
❖ any wire or oral communication;
❖ any communication made through a tone only paging device;
❖ or any communication from a tracking device;
❖ ‘intercept’ means the aural or other acquisition of the contents by wire,
electronic or oral communication through the use of any electronic,
mechanical or other device.”
5. Under the aforesaid law the police started cracking down on the illicit trade in narcotics
and psychotropic substances and 100 of suspects came to be convicted based on their
telephonic conversation. On 27th October, 2018 Additional Commissioner of Police
Rahimatullah Sayyed received a tip that a Nigerian national Mr. Zico was supplying drugs
to college students. Mr. Zico had prior antecedents of theft and gracious hurt in which he
was acquitted. Accordingly, the police started intercepting Mr.Zico’s telephone calls to

7
 which they were upraised that a drug transaction was to take place DB marg road in
Mumbai on 1st November, 2018 at around 9:45pm.
6. Accordingly, a team of NCB officers went to the spot at 7:30 and upraised 2 respectable
locals of the raid requesting them to act as panch witnesses to which they agreed. At around
09:45 PM Mr. Zico was spotted on an Activa bearing registration MOH4872 to which he
was stopped and the police introduced themselves as NCB officers, further they also
upraised him of their suspicions and informed him that he has the right to be searched in
the presence of a gazetted officer or a Magistrate which he declined. On searching the
police recovered white coloured powdered substance which they tested in the spot kit. The
substance tested positive for cocaine upon which it was sealed under the NCB seal and the
same was signed by the panch witnesses and the senior P.I.
7. The spot panchnama was completed by 11:45 PM and Mr. Zico was taken into custody for
offence under Section 16 read with Section 28 of NDPS Act wherein he confessed that he
had taken the drugs for the purpose of sale to some unknown college students who were to
approach him by 10 pm.
8. Mr. Zico was granted JC by the special court on 2nd November, 2018 however his bail
application came to be rejected. Mr. Zico filed a fresh bail application before the Hon'ble
High Court and the same came to be rejected on the grounds that the twin conditions for
bail could not be satisfied in view of the interceptions and the confession. Mr. Zico filed
an SLP against the order of the Hon'ble High Court. Leave is granted and the matter is at
the final argument stage.

8
 ISSUES RAISED

1. Whether the notification authorizing wire interception is constitutionally valid?

2. Whether a statement amounting to confession under section 67 of NDPS Act is
constitutionally admissible in evidence?
3. Whether the twin conditions for bail under Section 37 of NDPS Act are constitutionally
valid?
4. Whether Mr. Zico’s rights provided under article 20(3) and Article 21 of the Constitution
are violated or not?

9
 SUMMARY OF ARGUMENTS

1. Whether the notification authorizing wire interception is constitutionally valid?

It is humbly submitted before this Hon’ble Court that the notification authorizing wire
interception is constitutionally valid. The due process for obtaining information via wire
interception was followed. In the present case none of the rights of the accused have been
violated, all the investigation was done adhering to the law of the land. Based on the tip
received by the Additional commissioner it became necessary to intercept the calls of Mr.
Zico under the aforesaid order issued by the Central Government. Therefore, an order was
issued for the purpose of intercepting the telephone call of Mr. Zico thereby establishing
that the due process of law was followed for obtaining the information.

2. Whether a statement amounting to confession under section 67 of NDPS Act is

constitutionally admissible in evidence?
It is humbly submitted before the hon’ble Supreme court that a statement amounting to
confession under S. 671 of the NDPS Act, 1985 is constitutionally admissible in evidence.
In Kanhaiyalal v. Union of India2, the court observed that an officer for the purpose of S.
67 of the NDPS Act read with S. 42 thereof, is not a police officer, and thus the bar under
Sections 24 to 27 of the Indian Evidence Act cannot be attracted thereby establishing the
constitutional admissibility in evidence.

3. Whether the twin conditions for bail under Section 37 of NDPS Act are
constitutionally valid?
It is humbly submitted before the Hon’ble court that the twin conditions for bail under S.
37 of the NDPS act are constitutionally valid. In Ankush Kumar v State OF Punjab3 , the
Court stated that it has to comply with the conditions of S. 37(1)(b)(ii) before granting bail.
Court dealt with the issue of whether the procedure being insisted by the state; for its plea
of denying the bail; is non-discriminatory, rational, reasonable, and fair procedure was
followed or not. However, in the present case, the procedure insisted by the state was fair

1
Narcotics Drugs And Psychotropic Substances Act , 1985 S. 67
2
Kanhaiyalal v. Union of India, (1990) 2 SCC 409
3
Ankush Kumar v State OF Punjab,(2018) SCC 1259

10
 and non-discriminatory. Bail cannot be granted to the appellant as he has been convicted
under the non-bailable offences mentioned in the NDPS Act,1985. Also, till date there has
been no Amendment in regard to the twin conditions for bail which thereby establishes its
constitutionality.

4. Whether Mr. Zico’s right provided under Article 20(3) and Article 21 of the
Constitution are violated or not?
It is most respectfully contended that there has been no violation of fundamental rights
under Art. 20(3) and Art. 21 of the Constitution of Kindia. Art. 20(3) of the Constitution
states that no person accused of an offence can be compelled to be a witness against
himself. Further, in the present case, there was no compulsion on the accused to give
confession to the investigating officer. Mr. Zico also had an option of filing an appeal in
the High Court if he believed that his fundamental right was being violated. Art. 21 of the
Constitution of Kindia grants every person a right to life and personal liberty, which cannot
be breached, except according to the procedure established by law. It is submitted that
there has been no violation of this right as the telephone call information was obtained
according to the procedure established by law for public security and prevention of drug
trafficking.

11
 ARGUMENTS ADVANCED

A. WHETHER THE NOTIFICATION AUTHORISING WIRE

INTERCEPTION IS CONSTITUTIONALLY VALID?
1. It is humbly submitted before the Hon’ble Court that the notification authorizing wire
interception is constitutionally valid. It is the duty of the competent authority to take all the
measures to effectively combat abuse and illicit traffic of narcotic drugs and psychotropic
substances. Various laws have been made and conventions have been signed by the state
of Kindia for the fulfillment of the same.

Article 20 (1) of the Convention on Psychotropic Substances, 1971 which was signed by
India on 21st February 1971 states: the parties shall take all practicable measures for the
prevention of abuse of Psychotropic substances and for the early identification, treatment,
education, after care, rehabilitation and social reintegration of the persons involved, and
shall coordinate their efforts to these ends.4

It is further submitted that Art. 3(1)(a)(i) and Art. 3(1)(a)(iv) of The United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988
states that each party will adopt measures to establish criminal offence under its domestic
law when production, manufacture, distribution, sale, exportation etc of any narcotic drug
or Psychotropic substance is done.5

1) DUE PROCESS WAS FOLLOWED

2. It is humbly submitted that the term “Due Process” is synonymous with the “procedure
established by law” when it comes to protection of an individual's rights. The principles of
“Due Process” are closely linked with human rights protection.
3. Failure to accord fair hearing either to the accused or the prosecution violates even
minimum standards of due process of law. ‘Procedure established by law’ within the

4
Bibyajyoti De, Guide to Narcotics Drugs and Psychotropic substances (1st edn, Wadhwa and Company Nagpur,
2003, pg-62
5
Bibyajyoti De, Guide to Narcotics Drugs and Psychotropic substances (1st edn, Wadhwa and Company Nagpur,
2003, pg-83

12
 meaning of Art. 216 must be right, just and fair and not arbitrary, fanciful or oppressive”
otherwise it would be no procedure at all.
4. The Due Process that needs to be followed for the purpose of investigation has been
provided under S.677 of the NDPS Act. This Section confers investigatory powers and
empowers an officer referred to in S. 428 to call for information, require any person to
produce or deliver any document or thing, or to examine any person, in connection with
the contravention of any provision of this Act.
5. In the case of Kripal Mohon Virmani v. State9 it was established that the provisions of CrPC
are applicable to investigation under the NDPS Act so far such provisions are not
inconsistent with the procedures established under the Act. Thus, the provisions of CrPC
apply to such an extent, unless they violate any provisions under NDPS Act. Section
15710of CrPC, which deals with the procedure for investigation, states that investigation
may begin only if information is received or that the police has reason to suspect the
commission of such offence. It is submitted that the sole requirement to initiate
investigation under S. 157, which is “a reason to suspect '' is present in the pertinent case.

2) ADMINISTRATIVE ORDER ISSUED UNDER THE CORRECT PROVISIONS OF

LAW
6. S. 5(2)11 of the Indian Telegraph Act, 1885, states that if the government is satisfied, by
order, messages or calls may be intercepted. S. 3(3)12 of the Indian Telegraph Act, 1885,
states that-‘message’ means any communication sent by telegraph, or given to telegraph
officer to be sent by telegraph or to be delivered. A cell phone is covered under the term
“Telegraph” because it is an appliance capable for use of transmission or reception of signs,
signals, writing, images and sounds or intelligence of any nature by electromagnetic
emissions, electric or magnetic means.

6
INDIAN CONST., Art.21
7
Narcotic Drugs and Psychotropic Substances Act, 1985, S.67
8
Narcotic Drugs and Psychotropic Substances Act, 1985, S.42
9
Kripal Mohon Virmani v. State,(2005) 3 CALLT 395 HC
10
Criminal Procedure Code, 1860 S.157
11
The Indian Telegraph Act, 1885, S.5(2)
12
The Indian Telegraph Act, 1885, S.3(3)

13
 7. Since a cell phone helps in communication without a wire; definition of communication,
relevant to this case is given in S. 2(1)13 of The Indian Wireless Telegraphy Act, 1933,
which states-
‘wireless communication’ means any transmission, omission or reception of signs, signals
writing, images and sounds, by means of electricity, magnetism, or Radio waves without
the use of wires or other continuous electrical conductors between the transmitting and the
receiving apparatus; The definition of “Intercept” includes the acquisition of any
information, by any means so as to make some or all the contents of an information
available to a person. Therefore, the amalgamation of all the above definitions comes out
to be the acquisition of information of the transmission of signals (relevant to this case),
sent by the telephone or telegraph.
8. By virtue of the administrative order issued under the above-mentioned provisions, the
government was able to intercept the telephone conversation of Mr. Zico and therefore,
was successful in preventing the commission of such an offence. Thus, the government has
diligently followed the “Procedure established by Law” in this case.

B. WHETHER A STATEMENT AMOUNTING TO CONFESSION

UNDER SECTION 67 OF NDPS ACT IS CONSTITUTIONALLY
ADMISSIBLE IN EVIDENCE

9. It is humbly submitted before the hon’ble Supreme court of Kindia that a statement
amounting to confession under Section 6714 of the NDPS Act, 1985 is constitutionally
admissible in evidence.
10. In Kanhaiyalal v. Union of India15, the court observed that the an officer for the purpose
of S. 6716 of the NDPS Act read with S. 42 thereof, is not a police officer, and thus the bar
under Sections 24 to 27 of the Indian Evidence Act cannot be attracted. The bench had

13
The Indian Wireless Telegraphy Act, 1933, S 2(1)
14
Narcotic Drugs and Psychotropic Substances Act, 1985, S.67
15
Supra Note 2
16
Supra Note 14

14
 further observed that the statement made by a person directed to appear before the officer
concerned may be relied upon as a confessional statement against such person.
11. In the pertinent case, the accused made the confession before the NDPS officer and not
before any ordinary police officer. Hence the confession made by the accused does not
come in the purview of S. 2517 of the Indian evidence act. In Raj Kumar Karwal v. Union
of India18 , it was concluded that the officials of the DRI invested with powers under S. 53
of the Act do not possess any of the attributes of an officer-in-charge of a police station
conducting an investigation under Chapter XII of the Code. The High Court held that a
confessional or self-incriminating statement made by a person accused of having
committed a crime under the Act to an officer invested with the power of investigation
under S. 53 of the Act was not hit by S. 25 of the Indian Evidence Act.

1) CONFESSION WAS VOLUNTARY

12. From the above facts and circumstances it is contended that the confession was voluntary
and free from pressure, hence it is acceptable as evidence. In M. Prabhulal v. Asstt.
Director, Directorate of Revenue Intelligence,19 it has been held that if the confessional
statement is found to be voluntary and free from pressure, it can be accepted..
13. It was held by this Court in In Pon Adithan v. Dy. Director, Narcotics Control Bureau 20
that even if a person is placed under arrest and thereafter makes a statement which seeks
to incriminate him, the bar under Article 20(3) of the Constitution would not operate
against him if such statement was given voluntarily and without any threat or compulsion
and if supported by corroborating evidence. Hence, in the pertinent case the confession was
voluntarily made by the accused and was supported by corroborating evidence, i.e. cocaine
which the police recovered while conducting search upon the accused.

17
Indian Evidence Act, 1872
18
(1990) 2 SCC 409
19
M. Prabhulal v. Asstt. Director, Directorate of Revenue Intelligence [(2003) 8 SCC 449]
20
Pon Adithan v. Dy. Director, Narcotics Control Bureau [AIR 1999 SC 2355]

15
 C. THE TWIN CONDITIONS FOR BAIL UNDER SECTION 37 OF NDPS
ACT ARE CONSTITUTIONALLY VALID

14. It is humbly submitted before the Hon’ble court that the twin conditions for bail under S.
3721 of the NDPS Act are constitutionally valid. After elaborately dealing with the
background facts bail can only be granted on fulfilment of two conditions i.e. (i) where
there are reasonable grounds for believing that the accused is not guilty of the offence and
(ii) that he is not likely to commit any offence while on bail. Based on Mr. Zico’s past
record, it is contended that since he had been convicted under S. 378 22 of the IPC, it is
likely to believe that he will commit offence while on bail.
15. S. 3723 of NDPS Act makes all the offences under the Act to be cognizable and non-bailable
and also lays down stringent conditions for grant of bail. The provisions provided under
S.37 of the NDPS are pari materia to S.45 of the prevention of Money Laundering Act and
S.20(8)24 of Terrorist and Disruptive Activities (Prevention) Act. In Union of India v. Shiv
Shanker Kesari25, The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The
expression means something more than prima facie grounds. It connotes substantial
probable causes for believing that the accused is not guilty of the offence charged and this
reasonable belief contemplated in turn points to existence of such facts and circumstances
as are sufficient in themselves to justify recording of satisfaction that the accused is not
guilty of the offence charged. The word “reasonable” has in law the prima facie meaning
of reasonable in regard to those circumstances of which the actor, called on to act
reasonably, knows or ought to know. It is difficult to give an exact definition of the word
“reasonable”.
16. In Stroud's Judicial Dictionary26, 4th Edn., states that it would be unreasonable to expect
an exact definition of the word ‘reasonable’. Reason varies in its conclusions according to
the idiosyncrasy of the individual, and the times and circumstances in which he thinks.”

21
Narcotics Drugs and Psychotrpic Substances, 1985 S.37
22
Indian Penal Code,1860 S.378
23
Supra Note 21
24
Terrorist and Disruptive Activities (Prevention) Act, S. 20(8)
25
Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798
26
Stroud Fredrick’s Judicial Dictionary, 1890 p.2258

16
 17. In Ankush Kumar V .State OF Punjab27 the Court stated that it has to comply with the
conditions of S. 37(1)(b)(ii) before granting bail. Court dealt with the issue of whether the
procedure being insisted by the state; for its plea of denying the bail; is non-discriminatory,
rational, reasonable, and fair procedure was followed or not. Court was of the view that the
State erred in the same and after considering the conditions of S.37(1)(b)(ii) being fulfilled,
bail was granted. However, in the present case, the procedure insisted by the state was fair
and non-discriminatory. Bail cannot be granted to the appellant as he has been convicted
under the non- bailable offences mentioned in the NDPS Act,1985. Also, till date there has
been no Amendment in regard to the twin conditions for bail which thereby establishes its
constitutionality.

D. WHETHER MR. ZICO’S RIGHT PROVIDED UNDER ARTICLE

20(3) AND ARTICLE 21 OF THE CONSTITUTION ARE VIOLATED
OR NOT?

It is humbly submitted before the Hon’ble Court that Mr. Zico’s rights under Art. 20(3)28
and Art. 2129 of the Constitution of Kindia have not been violated.

1) RIGHT UNDER ARTICLE 20(3) OF THE CONSTITUTION IS NOT VIOLATED

18. Article 20(3)30 of the Kndian Constitution provides for protection in respect of conviction
for offences. It states that “No person accused of any offence shall be compelled to be a
witness against himself”. This means that an accused person cannot be compelled to furnish
evidence of self-incriminating nature. The Supreme Court in Raja Narayanlal Bansilal v.

27
(2018) SCC 1259
28
INDIAN CONST. Art.20(3)
29
Supra note 6
30
Supra note 28

17
 Manic Fhiroz Mistry31 stated: For invoking the constitutional right against testimonial
compulsion under Article 20(3), it must appear that a formal accusation has been made
against the party pleading the guarantee and that it relates to the commission of an offence
which in the normal course may result in prosecution.
19. For the application of Art.20(3), there are two ingredients that must necessarily co-exist.
These are –
a. It is the protection available to a person ‘accused of an offence’
The words “accused of an offence” indicate an accusation made in a criminal prosecution
before the Court or a judicial tribunal where a person is charged with having committed an
act which is culpable under the Indian Penal Code, 1860 or any other law. It is only in the
making of such an accusation that clause (3) of Article 20 becomes operative covering that
person against testimonial compulsion. In the case of Veera Ibrahim v. State of
Maharashtra32 it was held that only a person against whom a formal accusation relating to
the commission of an offence has been leveled, would fall within the scope of Article 20(3).
Here, the respondent agrees that this condition is fulfilled in the pertinent case as it is
evident from the fact sheet that criminal prosecution has started against Mr. Zico.
b. It is a protection against ‘compulsion to be witness’
The second important condition for right against self-incrimination is that there must be a
“compulsion to be a witness against himself.” It is respectfully contended that there has
been no compulsion in the present case. The term compulsion in the context of Art.20(3)
means duress which may take many forms. It is evident from the facts of the case that the
accused wasn’t subjected to any physical or mental torture by anyone. Further, compulsion
is said to be present when a person is left with no other option but to accept it. In this case,
Mr. Zico had the option to file an appeal in the High Court if he believed that his
fundamental right was being violated. But when Bragga, instead of challenging the order,
accepted the order of the investigating officer, he himself waived his right against self
incrimination. It was held in the case of Jethamal Pithaji v. Asstt. Collector of Customs33
that a statement which is not made under compulsion does not attract Art. 20 of the

31
Raja Narayanlal Bansilal v. Manic Fhiroz Mistry1961 AIR 29, 1961 SCR (1) 417
32
Veera Ibrahim v. State of Maharashtra 1976 SCR (3) 672
33
Jethamal Pithaji v. Asstt. Collector of Customs, 1974 AIR 859

18
 Constitution. A similar stand was taken in R.C Mehta v. State of West Bengal34and
Bhanabhai Khalpabhai v. Collector of Customs and Anr 35.
20. In V.S Kuttan Pillai v. Ramakrishnan and Anr36, this hon’ble court held that immunity
against self incrimination extends to any incriminating evidence which the accused may be
compelled to give but does not extend to cover a situation where evidence which may have
a tendency to incriminate the accused is being collected without compelling him to be a
party to the collection.

2) THERE HAS BEEN NO VIOLATION OF RIGHTS UNDER ARTICLE 21 OF THE

CONSTITUTION
21. Art.21 provides for Protection of life and personal liberty. It states that:
No person shall be deprived of his life or personal liberty except according to the procedure
established by law. It is accepted by the respondent that the right to life and personal liberty
is one of the most important rights of a person and its deprivation in unusual circumstances
should not be done. Intrusion into privacy can be done by administrative/executive orders
but it has to be reasonable with regard to the facts and circumstances of the case. Personal
liberty is not absolute and it has its own glory and is to be put on a pedestal in trial to try
offenders.
22. ‘Procedure established by law’ within the meaning of Art 21 must be “right and just and
fair” and “not arbitrary, fanciful or oppressive” otherwise, it would be no procedure at all.
The expression “procedure established by law” extends both to substantive law as well as
procedural law. A procedure not fulfilling these attributes is no procedure at all in the eyes
of Art.21. In the pertinent case, there is no violation of Art. 21 as the valid procedure
prescribed for such act was followed.
23. In Govind v. State of Madhya Pradesh37, the court accepted the right to privacy as an
emanation from Art 19(1)(a), 19(1)(d) and 21, but the right to privacy is not an absolute
right. The right to privacy is itself a fundamental right and it must be subject to the
restriction on the basis of compelling public interest. Therefore, in the pertinent case there

34
R.C Mehta v. State of West Bengal, 1993 CriLJ 2863
35
Bhanabhai Khalpabhai v. Collector of Customs and Anr, JT 1994 (2) 591
36
V.S Kuttan Pillai v. Ramakrishnan and Anr, AIR 185
37
Govind v. State of Madhya Pradesh19801975 AIR 1378

19
 is no actual breach of privacy as everything was done according to the well-established
procedure.
24. Further, the investigation conducted should be aimed at detecting the commission of the
offence. The police officers intercepted the telephone calls under the notification issued
by the central government. As proved in the above contention that the procedure followed
was valid on proper legal grounds, therefore it is contended that, what was done was
according to the procedure established by law. So, as the Act of the police officers was
according to the procedure established by law, Mr. Zico can be deprived of his life and
personal liberty.

20
 PRAYER
In the light of the facts of the case, issues raised, arguments advances and authorities cited, the
Counsel for the Respondent humbly prays before the Hon’ble Court to kindly adjudge and
declare that:

1. NOTIFICATION AUTHORIZING WIRE INTERCEPTION IS CONSTITUTIONALLY

VALID.
2. STATEMENT AMOUNTING TO CONFESSION UNDER SECTION 67 OF NDPS ACT
IS CONSTITUTIONALLY ADMISSIBLE IN EVIDENCE
3. THE TWIN CONDITIONS FOR BAIL UNDER SECTION 37 OF NDPS ACT ARE
CONSTITUTIONALLY VALID
4. MR. ZICO’S RIGHTS PROVIDED UNDER ARTICLE 20(3) AND ARTICLE 21 OF
THE CONSTITUTION ARE NOT VIOLATED

And further pass any order that the Hon’ble Court may deem fit.
And for this act of kindness, the counsel on behalf of the respondent as duty bound shall forever
pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

_________________________________________

SD/-

COUNSEL FOR THE RESPONDENT

21