5th M.K.

NAMBYAR MEMORIAL MOOT COURT COMPETITION

TEAM CODE-

KLS’S RAJA LAKHAMAGOUDA LAW COLLEGE, BELGAVI

5THM.K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION 2015

WRIT PETITION No. ____/2012

BEFORE

THE HON’BLE SUPREME COURT OF INDIANA

RIMJIN ... PETITIONER

V.

UNION OF INDIANA … RESPONDENT

UNDER ART. 32 OF THE CONSTITUTION OF INDIA

MATTER CONCERNING CONSTITUTIONALITY OF RICE (PROHIBITION OF HOARDING) ACT, 1931

Memorandum for Respondents

 5th M.K. NAMBYAR MEMORIAL MOOT COURT COMPETITION
MEMORIAL FOR RESPONDENT TABLE OF CONTENTS

TABLE OF CONTENTS

INDEX OF AUTHORITIES ................................................................................................ III

CASES ................................................................................................................................. III

STATUTES..........................................................................................................................VI

OTHER AUTHORITIES .....................................................................................................VI

BOOKS .............................................................................................................................. VII

ARTICLES ........................................................................................................................ VII

LIST OF ABBREVIATION.............................................................................................. VIII

STATEMENT OF JURISDICTION ................................................................................... IX

QUESTIONS PRESENTED .................................................................................................. X

STATEMENT OF FACTS ................................................................................................... XI

SUMMARY OF PLEADINGS ......................................................................................... XIII

PLEADINGS ....................................................................................................................... - 1 -

ISSUE 1: THE IMPUGNED ACT IS NOT A DEAD LETTER ...................................... - 1 -

[1.1] ARTICLE 372(1) IS APPLICABLE IN THE PRESENT CASE. ......................................- 1 -

[1.2]ARTICLE 13(1) IS INAPPLICABLE ...........................................................................- 2 -

[1.3] PURPOSE OF THE ACT MUST BE TAKEN INTO CONSIDERATION ...........................- 3 -

[1.4] DOCTRINE OF DESUETUDE IS NOT APPLICABLE ...................................................- 4 -

ISSUE 2- THE ACT DOES NOT VIOLATE ARTICLE 14 OF THE CONSTITUTION- 5

-

[2.1] THE CLASSIFICATION IS BASED ON INTELLIGIBLE DIFFERENTIA ........................- 5 -

[2.2] THERE IS A REASONABLE NEXUS BETWEEN THE CLASSIFICATION AND THE OBJECT
........................................................................................................................................- 6 -

[2.3] THE ACT CANNOT BE CHALLENGED ON THE GROUND THAT IT IS NOT APPLICABLE
TO OTHER FOOD GRAINS ................................................................................................- 6 -

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ISSUE 3- THE ACT IMPOSE REASONABLE RESTRICTION ON FREEDOM OF
TRADE AND OCCUPATION GUARANTEED BY ARTICLE 19(1) (G) OF
CONSTITUTION. ............................................................................................................ - 7 -

[3.1] STATE IS PERMITTED TO IMPOSE RESTRICTIONS FOR GENERAL WELFARE ........- 7 -

[3.2] THE RESTRICTION IS ‘REASONABLE’ ....................................................................- 9 -

ISSUE 4- THE ACT IS NOT VIOLATIVE OF ARTICLE 21 OF THE CONSTITUTION

OF INDIANA. ................................................................................................................ - 11 -

[4.1] MANY STATUTES PERMIT KEEPING THE INITIAL BURDEN OF PROOF ON DEFENCE . -
11 -

[4.2] PUTTING THE BURDEN OF PROOF ON THE PROSECUTION WOULD DEFEAT THE

PURPOSE FOR WHICH THE ACT WAS ENACTED ...........................................................- 13 -

4.2.1THE IMPUGNED ACT WAS ENACTED FOR PUBLIC WELFARE .............................- 14 -

ISSUE 5 - THE PUNISHMENT PRESCRIBED BY THE ACT IS NOT EXCESSIVE

AND DISPROPORTIONATE ....................................................................................... - 15 -

[5.1] THE COURT SHOULD NOT INTERFERE IN A POLICY DECISION OF THE

LEGISLATURE ..............................................................................................................- 15 -

[5.2] COURT CAN PRESCRIBE A LOWER PUNISHMENT EVEN IF THE MAXIMUM

PUNISHMENT PRESCRIBED BY THE ACT IS 10 YEARS ..................................................- 17 -

PRAYER ............................................................................................................................... XV

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 5th M.K. NAMBYAR MEMORIAL MOOT COURT COMPETITION
MEMORIAL FOR RESPONDENT INDEX OF AUTHORITIES
INDEX OF AUTHORITIES

CASES

AmritVanaspati Co. Ltd. v. State of Punjab, 1992 (2) SCC 411. -4-

Bannari Amman Sugars Ltd. v. Commercial Tax Officer, (2005) 1 SCC 625. -8-

BhanmalGulzarimal Ltd. V. Union of India, AIR 1960 SC 476. -8-

Brown v. Magistrate of Edinburgh, 1931 Scots Law Times 456, (1995) 3 SCC 434. -5-

Brown v. Stott, 2001 (2) All ER 17. -14-

Cantonment Board Mhow v. M.P. State Road Transport Corpn. 1997 (9) SCC 450. -4-

Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118. -10-

City of Pune v. Bharat Forge Co. Ltd, 1995 (3) SCC 434. -4-

Cooerjee B. Barucha v. Excise Commerce, 1954 SCR 873. -10-

Dalmia Cement Ltd. v. Union of India, (1996) 10 SCC 104. -8-

Dwarka Prasad v. State of U.P., AIR 1954 SC 224. -8-

Ganpati v. State of Ajmer, AIR 1955 SC 188. -10-

Gaurishankar v Union of India, AIR 1995 SC 55. -5-

Ghaidan v. Godin-Mendoza, 2004 UKHL 30. -16-

HamdardDawakhana v. Union of India, AIR 1960 SC 554. -3-

HarishankarBagla v. State of M.P., AIR 1954 SC 465. -10-

In Re Special Case Courts Bill, AIR 1979 SC 478. -6-

III
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MEMORIAL FOR RESPONDENT INDEX OF AUTHORITIES

Joseph Chacko & Ors. v. State of Kerala & Ors.,1998 (1) KLJ 390. -17-

Joshi DP V State of M.P, AIR 1955 SC 334. -6-

K. Veeraswami v. Union of India, JT 1991 (3) SC 198. -12-

KanwarLalv. IInd Additional Distt. Judge, Nainital, AIR 1995 SC 2078. -2-

Kerala State Electricity Board v. The Indian Aluminium Co. Ltd., AIR 1976 SC - 1 -
1031.

Krishnan Kakkanath v. Govt. of Kerala, (1997) 9 SCC 495. -8-

-5-
LaxmiKhandsari v. State of U.P, AIR 1981 SC 891.

M.P.Mathur v. DTC, 2006 (13) SCC 706. -4-

MadhuLimaye v. SDM, Monghyr, AIR 1971 SC 2486. -3-

Maharashtra v. Narayan ShamraoPuranik and Ors. (1982) 3 SCC 519. -4-

McDowell &Co. v. State of Andhra Pradesh, AIR 1996 SC 1628. -3-

MHOW and Anr. v. M.P. State Road Transport Corporation, (1997) 9 SCC 450. -5-

Mohanlal Jain v Mannsingh, AIR 1962 SC 73. -6-

Monnet Ispat and Energy Ltd. v. Union of India (UOI), (2012) 11 SCC 1. -4-

MuthaParasmal Jain and Ors. v. Union of India (UOI) and Ors., AIR 1981 Raj. 139. -17-

Narendra Kumar v. Union of India, AIR 1960 SC 430. -8-

Noor Aga v. State of Punjab, 2008 (56) BLJR 2254. -11-

Orissa Textile and Steel Ltd. v. State of Orissa, (2002) 2 SCC 578. -8-

P.P Enterprises v Union of India 1982 SCR 510. -5-

Perrin v. U.S, (1914) 58 L. Ed. 69. -4-

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MEMORIAL FOR RESPONDENT INDEX OF AUTHORITIES

Quality Dairies (York) Ltd v. Pedley, 1952 1 All ER 380. -14-

R. v. John Stone, 2003 3 All ER 884. -15-

R. v. London County Council L.R., (1931) 2 K.B. 215. -4-

Rajkot LodhikaSahakariKharidVechanSangh Ltd. and Ors. v. State of Gujarat and -17-

Ors., 1980 2 GLR 376.

Ram Krishna Dalmia v S. R. Tendolkar, AIR 1958 SC 538. -3-

RustamCavasjee Cooper v. Union of India, AIR 1970 SC 564 at 597. -3-

S v. Bruce, 1990 ZASCA 38. -18-

Sakhawat Ali v. state of Orissa, AIR 1995 SC 166. -7-

Sandur Manganese & Iron Ores Ltd. v. State of Karnataka, 2010 (13) SCC 1. -4-

ShaManumalMisrimal v.B.NathaRukmaniAmmal, (1964) 1 MLJ 312. -5-

Siddaramaiah v. AnwariBasavarajPatil, ILR 1994 Karnataka 552. -17-

State of Assam v. SristikarDowerah, AIR 1957 SC 414. -8-

State of Bombay v PN Balsara, AIR 1951 SC 318. -6-

State of Haryana v. Jai Singh, AIR 2003 SC 1696. -6-

State of Himachal Pradesh v HP NiziVyavsayikPrishikshan Kendra Sangh,2011 6 -16-

SCC 597.

State of Maharashtra v. HimmatBaiNarbheram Rao, AIR 1970 SC 1157. -8-

State of Maharashtra v. Narayan ShamraoPuranik, (1982) 3 SCC 519. -4-

State of U.P. & Ors v. Hindustan Aluminium Corp. Ltd.,AIR 1979 SC 1459. -2-

State of W.B v. Anwar Ali Sarkar, AIR 1952 SC 75. -7-

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Suraj Mal Kailash Chand v. Union of India, AIR 1982 SC 130. -9-

TarsemLal v. State of Punjab, (2002) ILR 1Punjab. -16-

Union of India v. M V Valliapan, CivilAppeal 1612 of 1988. -6-

Venkateshwara Theatre v. State of AP, AIR 1993 SC 1947. -6-

VrajlalManilal& Co. v. State of Madhya Pradesh, AIR 1979 SC 129. -3-

Woolmington v. Director of Public Prosecution, 1935 A.C. 462. -12-

STATUTES

THE CONSTITUTION OF INDIA, 1950, Art. 246. -1-

THE CONSTITUTION OF INDIA, 1950, Art. 372. -1-

THE CONSTITUTION OF INDIA, 1950.Art.19(1)(6). -8

OTHER AUTHORITIES

159TH LAW COMMISSION REPORT, ‘REPEAL AND AMENDMENT OF LAWS’, 41 (1998). -2-

248THLAW COMMISSION REPORT, “OBSOLETE LAWS: WARRANTING IMMEDIATE - 2 -

REPEAL” 5(2014).

MALIMATH COMMITTEE REPORT 41 (2003). -12-

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MEMORIAL FOR RESPONDENT INDEX OF AUTHORITIES
BOOKS

2M.P. JAIN, INDIAN CONSTITUTIONAL LAW,2175 (6THed., 2010). -1-

M.P.JAIN, INDIAN CONSTITUTIONAL LAW1140(16th ed., 2010). -11-

ARTICLES

N. Krishnaji,State Intervention And Food Grain Prices, SOCIAL SCIENTIST 85 -17-

(1975).

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 5th M.K. NAMBYAR MEMORIAL MOOT COURT COMPETITION
MEMORIAL FOR RESPONDENT LIST OF ABBREVIATION

LIST OF ABBREVIATION

ABBREVIATIONS EXPANSIONS

AIR All India Reporter

¶ Paragraph

Art. Article

Edn. Edition

HC High Court

KB King’s Bench

SCR Supreme Court Report

SC Supreme Court

SCC Supreme Court Cases

Sec. Section

UOI Union of India

v. Versus

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 5th M.K. NAMBYAR MEMORIAL MOOT COURT COMPETITION
MEMORIAL FOR RESPONDENT STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The Respondent has been called by this Hon’ble Supreme Court under Art. 32 of the
Constitution of Indiana.

“Article 32-Remedies for enforcement of rights conferred by this Part:

(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.”

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MEMORIAL FOR RESPONDENT QUESTIONS PRESENTED

QUESTIONS PRESENTED

1. Whether the impugned Act as it has not been applied for more than 70 years should be
deemed to have become dead letter?
2. Whether the Act is violative of Article 14 of the Constitution of Indiana as it is not
applicable to other similarly placed food grains?
3. Whether the Act imposes unreasonable restriction on freedom of trade and occupation
guaranteed by Article 19(1) (g) of the Constitution?
4. Whether the Act is violative of Article 21 of the Constitution of Indiana, as it puts the
burden of proof on defence?
5. Whether the punishment under the impugned Act is excessive and disproportionate?

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MEMORIAL FOR RESPONDENT STATEMENT OF FACTS

STATEMENT OF FACTS

Background

Indiana is a country which was a British colony till 1948. The Country has adopted its
Constitution which is similar to India. The legal system of Indiana and most of its statutes are
similar to Indiana. Hence, Supreme Court and High Court Cases of India have a persuasive
value in Indiana.

Purpose of Enactment

In 1930s, there was acute shortage of rice and businessmen were taking advantage of the
situation to hoard rice and aggravate the situation. Hence Colonial Legislature enacted Rice
(Prohibition of Hoarding) Act, 1931.

Contents of Legislation

Clause(e) of sub-section(1)of section 2 of the Act defined hoarding as storing rice without or
in excess of permitted quantity under a license issued to the shopkeeper under Section 3 of
the Act. Second paragraph of clause (e) brought storing rice in excess of reasonable monthly
requirement of a family within definition of hoarding.

Subsection(1) of Section 4 prohibited hoarding and Subsection (2) provided that in case of a
shopkeeper and in case of head a family will be held liable whether they knew or not that
there was such storage of rice by an employee of the shop or by any member of the family,
respectively.

Subsection (1) of Section 6 provided for imprisonment of 10 years for commission of

offence. Subsection (2) of Section 6 prescribed for enhanced punishment for conviction of the
offence for the second time.

Burden of Proof

Section 7 of the Act imposed the burden of proving that the Act of the accused did not fall
within the definition of hoarding on the defence.

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MEMORIAL FOR RESPONDENT STATEMENT OF FACTS
Matter in Trial Court

On 24.3.2012 Rimjin was arrested and prosecuted for committing offence under Section 6 of
the statute. The Sessions Court found him guilty and sentenced him to 10 years of
imprisonment.

Matter in the Present Case

Rimjin has challenged the constitutionality of the Act under Article 32 of the Constitution in
a writ petition before the Supreme Court of Indiana on several grounds and now the case is
posted for final hearing.

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MEMORIAL FOR RESPONDENT SUMMARY OF PLEADINGS

SUMMARY OF PLEADINGS

1. The impugned Act is not a dead letter.

The impugned Act is not a dead letter as Article 372(1) of the Constitution says that pre-
independence laws continue to remain in force unless amended or repealed by a competent
legislature. Here, the legislature has not repealed the Act, hence it cannot be called a dead
letter. Moreover, there is no violation of any fundamental right and hence Article 13 would
also not apply. The doctrine of desuetude is also not applicable as the two conditions that
must be satisfied i.e. the statute being inoperative for a long time and some contrary practice
is prevalent, are not satisfied.

2. The Act is not violative of Art.14 of the Constitution of Indiana

The Act does not violate Article 14 of the constitution as the classification done by the
legislature is based on intelligible differentia and has a nexus with the object sought to be
achieved. The fact that there is a shortage of rice means that it is not similarly placed as other
food grains and hence the legislature has made a sound classification. Moreover, this Act
cannot be challenged as being violative of Article 14 since all members of a well-defined
class are treated equally.

3. The Act does not impose unreasonable restriction on freedom of trade and
occupation guaranteed by Art.19 (1) (g) of the Constitution

The state can impose reasonable restrictions in the interest of the general public. Imposing
certain restrictions on the businessmen who want to take advantage of the shortage to exploit
consumers will qualify as restrictions imposed for public welfare. Moreover, the government
has not completely banned the business of the traders but has just taken measures to control
hoarding.

4. The Act does not violate Art. 21 of the Constitution of Indiana, as it puts the burden
of proving an ingredient of the offence on defence

The Act does not violate Article 21 as some statutes permit the burden of proving an
ingredient of the offence on defense in India too. The legislature is well within its limits to

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MEMORIAL FOR RESPONDENT SUMMARY OF PLEADINGS
make a statute, where the burden of proof lies on the accused. The principle that the burden
of proof should always be on the prosecution is not a rule. Moreover, putting the burden on
the prosecution will defeat the purpose of the Act.

5. The punishment under the Act is not excessive and disproportionate

The Act prescribes imprisonment of 10 years to the accused. This punishment is justified
because it is a legislative policy and the courts should not interfere in it. Moreover, the
punishment is not disproportionate since the serious consequences of hoarding calls for
implementation of stringent measures. The courts are permitted to impose a punishment
lesser than the prescribed punishment.

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MEMORIAL FOR RESPONDENT PLEADINGS

PLEADINGS

ISSUE 1: THE IMPUGNED ACT IS NOT A DEAD LETTER

[¶ 1] It is submitted that the impugned Act is not a dead letter because [1.1] Article 372(1)
is applicable in the present case, [1.2] Article 13(1) is inapplicable [1.3] Purpose of the Act
must be taken into consideration and [1.4] Doctrine of desuetude is not applicable.

[1.1] ARTICLE 372(1) IS APPLICABLE IN THE PRESENT CASE.

[¶ 2] It is most humbly submitted that interpretation of Article 372(1) of The Constitution

of India (herein after referred as “Constitution”) is particularly relevant for pre-
independence laws passed by the Governor-General in Council, the subject matter of which
now falls in the State List.1 Article 372(1) of the Constitution says that pre-independence
laws continue to remain in force unless amended or repealed by a competent
Legislature.2Competent Legislature in the Constitutional scheme refers to the legislating
body that has the power to make laws on a particular matter under Article 246 read with the
Seventh Schedule.3 This has been explained in Kerala State Electricity Board v. The Indian
Aluminium Co. Ltd.,4 which stated:

“An existing law continues to be valid even though the legislative power with respect to the
subject-matter of the existing law might be in a different list under the Constitution from the
list under which it would have fallen under the Government of India Act, 1935. But after the
Constitution came into force an existing law could be amended or repealed only by the
Legislature which would be competent to enact that law if it were to be newly enacted. “

[¶ 3] In KanwarLal v. IInd Additional Distt. Judge, Nainital,the Hon’ble Apex Court while
considering amendments to the Government Grants Act, 1895, (a pre-constitutional Central
statute) held that the State Government was the competent Legislature to amend or repeal this

1
2M.P. JAIN, INDIAN CONSTITUTIONAL LAW, 2175 (6THed., 2010).
2
THE CONSTITUTION OF INDIA, 1950, Art. 372.
3
THE CONSTITUTION OF INDIA, 1950, Art. 246.
4
Kerala State Electricity Board v. The Indian Aluminium Co. Ltd., AIR 1976 SC 1031.

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 5th M.K. NAMBYAR MEMORIAL MOOT COURT COMPETITION
MEMORIAL FOR RESPONDENT PLEADINGS
5
Act, since the subject matter of the Act fell in Entry 18 of List II. Hence it may be inferred
that as per Art. 372(1) if the subject-matter of a pre-constitutional law falls into the
Central/State List,6 the Central/State Government is the competent Legislature to repeal that
Act.
[¶ 4] It is therefore humbly submitted that in the present case the Act was not repealed by
the Legislature and since the Act was a pre-constitutional law, Art. 372(1) of the Constitution
is applicable here. Thereby the Act must hold good until it has been repealed by the
Legislature itself.

[1.2]ARTICLE 13(1) IS INAPPLICABLE

[¶ 5] It is most humbly submitted that there has been no violation of Article 19(1)(g) of the
Constitution since in a market economy the Government cannot abdicate from its functions of
regulating the economy. To protect and promote the national interest the Government ought
to exercise overall control over commercial establishments and their functioning.7
[¶ 6] It is submitted that the Supreme Court does not have the power to repeal an Act on the
basis that the act has become obsolete since such a power rests with the Legislature and not
judiciary. The Honorable Supreme Court in State of U.P. & Ors v. Hindustan Aluminum
Corp. Ltd has held that ‘In case a legislation has spent itself or is exhausted in operation by
the accomplishment of the purpose for which it was passed, or whether the state of things
contemplated by the enactment has ceased to exist, are essentially questions of fact and there
is no vested right which exists with a citizen to ask for a declaration of that law to be
impliedly repealed on any such grounds. The judge of the change should be the Legislature
and the courts are not expected to undertake that duty unless it becomes unavoidable.8
[¶ 7] It is thereby submitted that since as per the facts in the present case there hasn’t been
a repeal of the Rice (Prohibition of Hoarding) Act, 1931 9 by the Legislature hence the Act
must be held to be valid by the Honorable Court. Also it may be inferred from that Supreme
Court cannot repeal an Act just on the basis that the Act has not been applied for a certain
period of time.

5
KanwarLalv. IInd Additional Distt. Judge, Nainital, AIR 1995 SC 2078.
6
248THLAW COMMISSION REPORT, “OBSOLETE LAWS: WARRANTING IMMEDIATE REPEAL” 5(2014).
7
159TH LAW COMMISSION REPORT, ‘REPEAL AND AMENDMENT OF LAWS’, 41 (1998).
8
State of U.P. & Ors v. Hindustan Aluminium Corp. Ltd.,AIR 1979 SC 1459.
9
¶ 3, Moot Proposition.

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[1.3] PURPOSE OF THE ACT MUST BE TAKEN INTO CONSIDERATION

[¶ 8] It is submitted that the Honorable Supreme Court in Hamdard Dawakhana v. Union

of India has held that:

‘In order to determine the legitimacy or validity of an enactment the court takes into
consideration all factors such as the history of the legislation, the purpose thereof, the
surrounding circumstances and conditions, the mischief which is intended to be suppressed
and the remedy for the disease which the Legislature wants to cure.10 Further, it is the
substance of the legislation and its practical result which should be considered rather than its
pure legal form’.11

[¶ 9] The Legislature, composed, as it is of the elected representatives of the people is

supposed to know and be aware of the needs of the people and what is good or bad for them
and hence, the court cannot sit in judgment over the wisdom of the Legislature.12 A statute,
unless it is expressly enacted for a temporary period, survives until it is killed by repealing it.
To this extent, the statue enjoys immortality.13 The obsolescence of old enactment or its
content has been covered in a later enactment has no effect upon its vitality in regards to its
application. That effect can only be achieved by a formal repealing Act. 14 In regards, to
constitutional validity of the pre constitution laws, the Supreme Court has taken the position
that all such laws remain operative till the court declares any of them void.15 So long as an
Act is on the statute book, the way to get rid of it is to repeal or alter it in Parliament, not for
other bodies, who are bound to obey the law, to take upon themselves to disobey an Act of
Parliament.16 Moreover, Age cannot wither an Act of Parliament, and at no time, has it ever
been admitted in our jurisprudence that a statute might become inoperative through
obsolescence.17
[¶ 10] Thus, in the present case the court must take into consideration the purpose of the act
to determine whether it remains valid or not. The purpose of the act is to avoid acute

10
Hamdard Dawakhana v. Union of India, AIR 1960 SC 554.
11
Rustam Cavasjee Cooper v. Union of India, AIR 1970 SC 564 at 597.
12
Ram Krishna Dalmia v S. R. Tendolkar, AIR 1958 SC 538; Vrajlal Manilal& Co. v. State of Madhya Pradesh,
AIR 1979 SC 129; McDowell &Co. v. State of Andhra Pradesh, AIR 1996 SC 1628.
13
159THLAW COMMISSION REPORT, ‘REPEAL AND AMENDMENT OF LAWS’ 5(1998).
14
Id.
15
Madhu Limaye v. SDM, Monghyr, AIR 1971 SC 2486.
16
R. v. London County Council L.R., (1931) 2 K.B. 215.
17
State of Maharashtra v. Narayan Shamrao Puranik, (1982) 3 SCC 519, para 15; R. v. London County Council,
(1931) 2 KB 215; See ALLEN, LAW IN THE MAKING 454(5th ed. 2009).

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shortage of rice in the market and to ensure at the same time that no one interferes with the
market of the commodity. This purpose still remains true in the contemporary time.
Therefore, in the present case there remains no validity for the claim for declaring the act
obsolete.

[1.4] DOCTRINE OF DESUETUDE IS NOT APPLICABLE

[¶ 11] It is most humbly submitted that in order for the application of Doctrine of Desuetude,
two conditions have to be satisfied as has been mentioned by the Honorable Supreme Court
in Cantonment Board Mhow v. M.P. State Road Transport Corpn. and many other cases,
viz.
(i) There must be a considerable period of neglect, and
(ii) There must be a contrary practice for a considerable time. In the instant case no such
neglect or contrary practice had been shown.18
[¶ 12] Both these ingredients of desuetude are essential and want of anyone of them would
not attract the doctrine of desuetude19 and a mere long desuetude of a statute does not
amount to its repeal.20 Consequently, a statute can be abrogated only by express or implied
repeal; it cannot fall into desuetude or become inoperative through obsolescence or by lapse
of time.21 Therefore, “desuetude” requires for its operation a very considerable period, not
merely of neglect, but of contrary usage of such character as to practically infer such
completely established habit of the community as to set up a counter-law to establish a
quasi-repeal22.
[¶ 13] In the present case, there has been no contrary practice to imply the act to be obsolete.
Therefore, with the absence of any such contrary enactment which can be inferred from the
facts in the present case.
[¶ 14] Hence there remains no grounds for the application of Doctrine of Desuetude, it is
therefore submitted that doctrine may not be applied in the present case.

18
Cantonment Board Mhow v. M.P. State Road Transport Corpn. 1997 (9) SCC 450; State of Maharashtra v.
Narayan Shamrao Puranik, 1982 (3) SCC 519; City of Pune v. Bharat Forge Co. Ltd, 1995 (3) SCC 434;
AmritVanaspati Co. Ltd. v. State of Punjab, 1992 (2) SCC 411; M.P. Mathur v. DTC, 2006 (13) SCC 706;
Sandur Manganese & Iron Ores Ltd. v. State of Karnataka, 2010 (13) SCC 1.
19
Monnet Ispat and Energy Ltd. v. Union of India (UOI), (2012) 11 SCC 1.
20
Perrin v. U.S, (1914) 58 L. Ed. 69.
21
Maharashtra v. Narayan ShamraoPuranik and Ors. (1982) 3 SCC 519.
22
MHOW and Anr. v. M.P. State Road Transport Corporation, (1997) 9 SCC 450; Brown v. Magistrate of
Edinburgh, 1931 Scots Law Times 456, (1995) 3 SCC 434.

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MEMORIAL FOR RESPONDENT PLEADINGS
ISSUE 2- THE ACT DOES NOT VIOLATE ARTICLE 14 OF THE CONSTITUTION

[¶ 15] It is submitted that the act does not violate Article 14 of the constitution as [2.1] The
classification is based on intelligible differentia, [2.2] There is a reasonable nexus between
the classification and the object and [2.3] The act cannot be challenged on the ground that it
is not applicable to other food grains

[2.1] THE CLASSIFICATION IS BASED ON INTELLIGIBLE DIFFERENTIA

[¶ 16] It is humbly submitted that the Legislature has to deal with very diverse problems
arising out of infinite variety of human relations.23 It must, therefore, necessarily have the
power of making laws to attain particular objects and, for that purpose, of distinguishing,
selecting and classifying persons and things upon which its laws are to operate. 24 Article 14
does forbid class legislation, but it does not forbid reasonable classification of people,
objects, and transactions by the Legislature for the purpose of achieving specific ends.25 The
classification should be based on intelligible differentia, some real and substantial distinction,
which distinguishes persons or things grouped together in the class from others left out. The
classification must be founded on a pertinent and real difference as distinguished from
irrelevant and artificial ones.26

[¶ 17] It is humbly submitted that the presumption of constitutionality is that the Legislature
understands and correctly appreciates the needs of its own people and that its laws are
directed to problems made manifest by experience and its discriminations are based on
adequate grounds.27 A classification has been done by the Legislature at times on the basis of
economic superiority, historical differences28 geographical differences29 and the like.

[¶ 18] Here, the Legislature has differentiated between rice and other grains because there is
an acute shortage of rice in the country30 and hence it can be said that the traders of rice and

23
Manumal Misrimal v.B.Natha Rukmani Ammal, (1964) 1 MLJ 312.
24
Gaurishankar v Union of India, AIR 1995 SC 55.
25
Laxmi Khandsari v. State of U.P, AIR 1981 SC 891.
26
P.P Enterprises v Union of India 1982 SCR 510.
27
State of Bombay v PN Balsara, AIR 1951 SC 318.
28
Mohanlal Jain v Mann Singh, AIR 1962 SC 73.
29
Joshi DP v State of M.P, AIR 1955 SC 334.
30
¶ 3, Moot Proposition

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traders of other food grains are not situated equally and treating them as equals would itself
violate Article 14.If there is equality and uniformity within each group, the law will not be
condemned as discriminative, so long as they are not singled out for any special treatment.31
As between members of this class, there is no distinction made. All the rice selling traders
are treated equally under the act. So it cannot be said that the act is in any way arbitrary.

[2.2] THERE IS A REASONABLE NEXUS BETWEEN THE CLASSIFICATION AND THE OBJECT

[¶ 19] It is humbly submitted that the differentia which is the basis of classification and the
act are distinct things and what is necessary is that there should be a nexus between them32. In
other words, there must be some rational nexus between the basis of classification and the
object intended to be achieved.33 A classification will not be held discriminatory if there is a
rational basis on which the classification is made.34The restriction imposed on the hoarding of
rice bears a reasonable nexus to the object which is sought to be achieved, namely to reduce
the shortage of rice and ensure more equitable distribution. Since there is an acute shortage
of rice in Indiana, the object of restraining hoarding is self-evident as the prohibition of
hoarding act will result in a more equitable distribution of rice and making it available to the
consumer at a reasonable rate.

[2.3] THE ACT CANNOT BE CHALLENGED ON THE GROUND THAT IT IS NOT APPLICABLE TO
OTHER FOOD GRAINS

[¶ 20] It is submitted that if the Legislature has reasonably classified persons for legislative
purposes and it deals equally with all persons belonging to a well- defined class, it is not open
to the charge of denial of equal protection on the ground that the law does not apply to other
persons35. The guarantee against the denial of equal protection of the laws does not mean that
identically the same rules of law should be made applicable to all persons within the territory
of a country in spite of differences of circumstances and conditions. If a law is not arbitrary

31
Venkateshwara Theatre v. State of AP, AIR 1993 SC 1947.
32
In Re Special Case Courts Bill, AIR 1979 SC 478.
33
State of Haryana v. Jai Singh, AIR 2003 SC 1696.
34
Union of India v. M V Valliapan, Civil Appeal 1612 of 1988.
35
State of W.B v. Anwar Ali Sarkar, AIR 1952 SC 75.

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or unreasonable and is based on a substantial classification, its non-applicability to other
persons cannot be a ground for challenge36

[¶ 21] The Rice (prohibition of hoarding) Act of 1931 has been enacted by the Legislature as
there was an acute shortage of Rice.37 The Act cannot be held violative of Article 14 of the
constitution because the fact that the same law is not applicable to traders of other grains is
not a valid ground for challenge.

ISSUE 3- THE ACT IMPOSE REASONABLE RESTRICTION ON FREEDOM OF TRADE AND

OCCUPATION GUARANTEED BY ARTICLE 19(1) (G) OF CONSTITUTION.

[¶ 22] The Act is not violative of Article 19(1)(g) of the Constitution because firstly [3.1]
State is permitted to impose restrictions for general welfare and Secondly [B] The restriction
is reasonable

[3.1] STATE IS PERMITTED TO IMPOSE RESTRICTIONS FOR GENERAL WELFARE

[¶ 23] Article 19(1)(6) says that in sub-clause(g) of the said clause shall affect the operation
of any existing law in so far as it imposes, or prevent the State from making any law
imposing, in the interests of general public.38

3.1.1. CONSTITUTION PERMITS CERTAIN RESTRICTIONS TO SAFEGUARD PUBLIC INTEREST

[¶ 24] It is humbly submitted that the Constitution allows reasonable restrictions on the
exercise of the right, in “the interests of general public”. However, the courts will have to
examine carefully whether any particular restriction on the right is in the interest of general
Public, and what constitutes ‘interest’ of general public. Reasonableness of restrictions on
trade and commerce and the power of the Government to regulate it in public interest has
been examined in the light of socio-economic objectives 39 and the Courts have found that the
reasonableness of restrictions on the right to carry on trade or business has to be determined
from the point of view of public interest and the circumstances relating to the trade or

36
Sakhawat Ali v. state of Orissa, AIR 1995 SC 166.
37
¶ 3, Moot Proposition.
38
THE CONSTITUTION OF INDIA, 1950. Art.19(1)(6).
39
Dalmia Cement Ltd. v. Union of India, (1996) 10 SCC 104.

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business, and not from the point of view of the person on whom restriction is imposed.40 A
restriction cannot be said to be unreasonable merely because in a given case, it operates
harshly.41
[¶ 25] The phrase “in the interests” of the “general public” is the phrase of a definite
connotation and a known concept and it is not vague or of a very wide amplitude. 42 This
expression would comprise within its ambit the interests of Public Health and morals43,
economic stability44, distribution of essential commodities at fair prices.45
[¶ 26] Restrictions imposed restrictions upon the sale of essential commodities to ensure
their equitable distribution and availability at fair prices 46 by fixing of maximum selling
prices47, elimination of hoarders and black-marketers48and fixing of maximum stock limit49
are all reasonable restrictions as they are done for Public welfare.

3.1.2. RICE DEALERS WERE NOT PROHIBITED COMPLETELY FROM SELLING RICE
[¶ 27] It is submitted that in 1930s, there was an acute shortage of rice in Indiana and many
businessmen took advantage of the situation and tried to make profit by hoarding rice and
hence Rice (Prohibition of Hoarding) Act, 1931 was enacted.50 Hence the purpose of limiting
stock per shopkeeper and household was to control the price of rice in the market which is the
staple food of Indiana. Since businessmen were hoarding rice to earn greater profits, hence
the need of the hour dictated such a legislation to prevent storage of rice beyond excess limit
so that there would be supply of rice in the market and general population can have access to
rice which is a food grain. Rice dealers were not completely prohibited from selling Rice.
The restriction of storage capacity by shopkeepers was only done keeping in mind the public
welfare and public welfare should be above individual interests.

40
Krishnan Kakkanath v. Govt. of Kerala, (1997) 9 SCC 495.
41
Bannari Amman Sugars Ltd. v. Commercial Tax Officer, (2005) 1 SCC 625.
42
Orissa Textile and Steel Ltd. v. State of Orissa, (2002) 2 SCC 578.
43
State of Maharashtra v. Himmat Bai Narbheram Rao, AIR 1970 SC 1157.
44
State of Assam v. Sristikar Dowerah, AIR 1957 SC 414.
45
Narendra Kumar v. Union of India, AIR 1960 SC 430.
46
Dwarka Prasad v. State of U.P., AIR 1954 SC 224.
47
Bhanmal Gulzarimal Ltd. V. Union of India, AIR 1960 SC 476.
48
Suraj Mal Kailash Chand v. Union of India, AIR 1982 SC 130.
49
Id.
50
¶ 3, Moot Proposition

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[3.2] THE RESTRICTION IS ‘REASONABLE’

[¶ 28] It is humbly submitted that in order to determine the reasonableness of a restriction

imposed upon the right guaranteed by Article 19(1) (g), the Court must have regard to the
nature of the business51. In determining whether there is any unfairness involved in imposing
the restriction, the nature of the right alleged to have been infringed, the underlying purpose
of the restriction imposed, the extent of urgency of the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing condition at the prevalent time, the
reasonableness of the legitimate expectation has to be determined with respect to
circumstances relating to business or trade in question.52
[¶ 29] Hence it is submitted that the Act was enacted as there was shortage of rice and
businessmen were taking advantage of the situation to hoard rice thus aggravating the
situation.53

3.2.1 REASONABLE RESTRICTION BALANCES INDIVIDUAL RIGHT AND SOCIAL WELFARE

[¶ 30] The Supreme Court in Chintaman Rao54 laid down the test for a “reasonable
restriction” as follows “The phrase reasonable restriction connotes that the limitation imposed
on a person in enjoyment of the right should not be arbitrary or of an excessive nature beyond
what is required in the interest of Public. The word implies intelligent care and deliberation.
Legislation which arbitrarily or excessively invades the right cannot be said to contain the
quality of reasonableness and unless it strikes a proper balance between the freedoms
guaranteed in Article 19(1) (g) and the social control permitted by clause (6) of Article 19. In
this social control was to prevent hoarding so that general masses could access Rice at a
reasonable Price.
[¶ 31] It is submitted that if a law confers on an administrative authority absolute discretion
to grant or withhold or revoke55 a permit or license for carrying on of a business, the
restriction imposed by such law is unreasonable56except in the case when State is entitled
either to prohibit entirely or to permit only under such conditions as will limit to the utmost

51
Cooerjee B. Barucha v. Excise Commerce, 1954 SCR 873.
52
Bannari Amman Sugars Ltd. v. Commercial Tax Officer, (2005) 1 SCC 625.
53
¶3, Moot Proposition
54
Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118.
55
Ganpati v. State of Ajmer, AIR 1955 SC 188.
56
Harishankar Bagla v. State of M.P., AIR 1954 SC 465.

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its evils , or in a time of emergency when it is necessary to impose restrictions on the
production, supply and distribution of commodities essential to the life of the community.

3.2.2. PURPOSE OF THE IMPUGNED ACT WAS TO STOP HOARDING

[¶ 32] It is humbly submitted that the purpose for which Indiana enacted Rice (Prohibition of
Hoarding) Act, 1931 has to be seen on deciding whether the restraint put on freedom of Trade
and Occupation was reasonable or not. This Act came into place to prevent businessmen from
hoarding rice and thus increasing the cost of rice which is a food grain. Thus the object of
Legislature was Public welfare as hoarding would have increased the price of Rice and
masses would not have been able to buy rice at such exorbitant prices. Also chances were that
despite having the money, people would not be able to procure rice as it had become scarce in
the market place. Hence a legislation was required to curb such hoarding practices by
unscrupulous business by controlling the storage capacity of shopkeepers to prevent uneven
flow of supply and demand in the market and hence the restraint is not arbitrary or excessive
[¶ 33] Shopkeepers were required to take a license under Section 3 of the Act which
prescribed a quantity above which they were not allowed to store in their shops.58 This
licensing and permit system was done as there was a national emergency as there was acute
shortage of staple and essential food i.e. Rice and Legislature can draft such laws to control
the supply and distribution of essential commodities. Thus this licensing system cannot be
said to be restraining trade as Government has the power to control essential commodities
and this was done so that the masses can have an uninterrupted supply of rice at a reasonable
price. Traders were not prohibited in any way from exercising their right to trade and
occupation. The law just restricted the quantity a shop keeper can keep for storage as the
object of the Act was to prevent a certain social evil i.e. Hoarding and Black marketing and
under Article 19(1) (6) legislature can impose a reasonable restraint keeping in mind Public
welfare and hence this Act cannot be said to be violative of Article 19(1) (g) in any manner.

3.2.3 RICE IS AN ESSENTIAL COMMODITY

[¶ 34] It is humbly submitted that trade in essential commodities may be more drastically
regulated than trade in other commodities59 Fixation of a ceiling of 200 quintals on wheat
stocks possessed by a dealer at any time was found valid by Court to obviate black marketing

57
Cooerjee B. Barucha v. Excise Commerce, 1954 SCR 873.
58
¶ 4, Moot Proposition
59
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1140 (16th ed., 2010).

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and hoarding in essential commodities. A similar embargo on sugar stocks has been held
valid.61
[¶ 35] Since Rice is an essential commodity, fixation of stock of rice to prevent hoarding
leading to escalation of prices is a reasonable restraint and does not violate fundamental right
of trade and occupation as envisaged in the Constitution.

ISSUE 4- THE ACT IS NOT VIOLATIVE OF ARTICLE 21 OF THE CONSTITUTION OF INDIANA.

[¶ 36] The Act is not violative of Article 21 of the Constitution of Indiana as many statutes
permit the burden of proving an ingredient of the offence on defence62.Therefore it is humbly
submitted that Rice (Prohibition of Hoarding) Act, 1931 should not be declared
unconstitutional as firstly (4.1) Many statutes permit keeping the initial burden of proof on
defence and Secondly (4.2) Putting the burden of Proof on the prosecution would defeat the
purpose for which the Act was enacted.

[4.1] MANY STATUTES PERMIT KEEPING THE INITIAL BURDEN OF PROOF ON DEFENCE

[¶ 37] It is humbly submitted that there are several statutory provisions which provide that
the court may presume certain facts, place the burden on the accused of rebutting such
presumption. If the accused fails to rebut the presumption the court can proceed to give its
verdict on the basis of the presumption.63

4.1.1. PARLIAMENT IS COMPETENT TO MAKE STATUTES WHERE BURDEN OF PROOF IS ON

THE ACCUSED

[¶ 38] It is humbly submitted that this procedure may be contrary to the well-known
principle of criminal jurisprudence laid down in Woolmington case64 that the burden of proof
is always on the prosecution and never shifts to the accused person.65 But Parliament is
competent to place the burden on certain aspects on the accused as well. Such a statute
placing burden on the accused cannot be regarded as unreasonable, unjust or unfair. 66 Nor it

60
Suraj Mal Kailash Chand v. Union of India, AIR 1982 SC 310.
61
P.P Enterprises v. Union of India, AIR 1982 SC 1016.
62
Noor Aga v. State of Punjab, 2008 (56) BLJR 2254.
63
MALIMATH COMMITTEE REPORT 41 (2003).
64
Woolmington v. Director of Public Prosecution, 1935 A.C. 462.
65
K. Veeraswami v. Union of India, JT 1991 (3) SC 198.
66
Id.

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can be regarded as contrary to Article 21 of the Constitution as contended for the appellant.67
In a English case Lord Griffiths said that: ‘I would summarize the position thus far by saying
that Woolmington did not lay down a rule that the burden of proving a statutory defence only
lay upon the defendant if the statute specifically so provided: that a statute can, on its true
construction, place a burden of proof on the defendant’68Thus principle re-affirmed in
Woolmington case that burden of proof should always be on the prosecution is not a
universal rule to be followed in every case. The principle is applied only in the absence of
statutory provision to the contrary.69
[¶ 39] Thus the Act is not unconstitutional even though burden of proof is on defence70 as
Legislature can make such provisions in the Act and it not always required that the initial
burden of proof should be on the prosecution.

4.1.2. PRESUMPTION OF GUILTY UNLESS THE SAME IS REBUTTED BY THE ACCUSED

[¶ 40] Section 113 A of the Evidence Act provides for a presumption that the husband has
abetted suicide of his wife if suicide took place within seven years of marriage and the wife
was earlier subjected to cruelty. Likewise Section 113 B raises a presumption of dowry death
if it is shown that prior to her death she was harassed etc. in connection with demand Burden
of Proof in Criminal cases is on the Prosecution as provided in section 101 of the Evidence
Act. However, there are several statutory provisions which provide that the court may
presume certain facts, place the burden on the accused of rebutting such presumption of
dowry. Again Section 114 A provides for presumption as to absence of consent in certain
prosecutions for rape71
[¶ 41] It is humbly submitted that similarly there are several special statutes which provide
for raising certain presumptions placing the burden of rebutting them on the accused. Section
4 of Public Gambling Act 1867 provides that “Any person found in any common gambling
house or in gambling or playing there-in shall be presumed until the contrary be proved to
have been there for the purpose of Gambling”. Section 12 of the Protection of Civil Rights
Act 1955 provides “where any act constituting an offence under this Act is committed in
relation to a member of the Scheduled Caste as defined in clause (24) of Article 366 of the
Constitution, the court shall presume, unless the contrary is proved that such act was

67
Id.
68
Regina v. Hunt, 1986 (3) WLR 1115.
69
K. Veeraswami v. Union of India, JT 1991 (3) SC 198.
70
¶ 7, Moot Proposition.
71
MALIMATH COMMITTEE REPORT 42 (2003).

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committed on the ground of untouchability”. Certain presumptions are drawn under Section
3, 5 and 6 of Immoral Traffic (Prevention) Act 1956. In order to avoid such presumption
taking effect the accused has to break his silence to rebut the presumption.72Hence, As long
as the accused has the opportunity to adduce evidence to nullify the adverse effect such
deviation will not offend Article 14 or 21 of the Constitution.73

4.1.3. SOME ACTS MAY PRESUME GUILT WITHOUT PROOF

[¶ 42] In the Quality Dairies v Pedley, it had been said that “It is true that for the protection
of the liberty of the citizen, in the definition of offences, blameworthy mental condition is
ordinarily an ingredient either by express enactment or clear implication but in Acts enacted
to deal with a grave social evil, or for ensuring public welfare, especially in offences against
public health, e.g., statutes regulating storage or sale of articles of food and drink, sale of
drugs, sale of controlled or scare commodities, it is often found necessary in the larger public
interest to provide for imposition of liability without proof of a guilty mind.”74
[¶ 43] In 1930s there was acute shortage of rice in Indiana and businessmen were using it to
their advantage to hoard rice which aggravated the situation while led to the enactment of this
Act.75 The purpose of this Act was to deal with the social evil of hoarding so that everybody
could consume Rice. In a leading case it was observed that “there was need therefore to
maintain a fair balance between the general interest of the community and the personal right
of the individual”.76 Hence this Act presumed a person to be guilty without such proof to
serve the greater interest of the people as rice is a food grain and hence this Act cannot be
said to be violative of Article 21.

[4.2.] PUTTING THE BURDEN OF PROOF ON THE PROSECUTION WOULD DEFEAT THE
PURPOSE FOR WHICH THE ACT WAS ENACTED

[¶ 44] It is humbly submitted before this Court that if the burden of proof is placed on the
prosecution, the purpose for which the Act was enacted that is to prevent hoarding of rice
thereby causing excessive shortage of rice in the market which is a essential food grain would

72
Id. at 43.
73
Id. at 67.
74
Quality Dairies (York) Ltd v. Pedley, 1952 1 All ER 380.
75
¶ 3,Moot Proposition
76
Brown v. Stott, 2001 (2) All ER 17.

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be defeated and the general public would be denied the consumption of rice which is a staple
food.
[¶ 45] It is submitted that in a case involving infringement of trade mark, the House of Lords
stated the law, thus: “(4) those who trade in brand products are aware of the need to be on
guard against counterfeit goods. They are aware of the need to deal with reputable suppliers
and keep records and of the risks they take if they do not. (5) The s 92 defence relates to facts
within the accused person's own knowledge: his state of mind, and the reasons why he held
the belief in question. His sources of supply are known to him. (6) Conversely, by and large it
is to be expected that those who supply traders with counterfeit products, if traceable at all by
outside investigators, are unlikely to be co-operative. So, in practice, if the prosecution must
prove that a trader acted dishonestly, fewer investigations will be undertaken and fewer
prosecutions will take place.”77 Relying on this judgment Court in Noor Aga Case78 Court
said that “In my view factors (4) and (6) constitute compelling reasons why the s 92(5)
defence should place a persuasive burden on the accused person. Given the importance and
difficulty of combating counterfeiting, and given the comparative ease with which an accused
can raise an issue about his honesty, overall it is fair and reasonable to require a trader,
should need arise, to prove on the balance of probability that he honestly and reasonably
believed the goods were genuine.”79

4.2.1 THE IMPUGNED ACT WAS ENACTED FOR PUBLIC WELFARE

[¶ 46] It is humbly submitted that the purpose for which Rice (Prohibition of Hoarding) Act,
1931 was created was to prevent hoarding of rice so that everyone rich or poor could
consume rice which was already short in the market. The Act defined hoarding as storing or
rice without or in excess of permitted quantity under a license to a shopkeeper and for family
in excess of reasonable monthly requirement.80 Hence it would be difficult to prove for the
prosecution whether a shopkeeper had license or whether a family is storing more than
reasonable quantity of rice or not. If the burden is shifted to accused, it would be an easy task
for prosecution to establish case and thus more prosecutions will take place or else the object
of Act will be defeated that is to serve the Public welfare. If burden is shifted on prosecution,

77
R. v. John Stone, 2003 3 All ER 884.
78
Noor Aga v. State of Punjab, 2008 56 BLJR 2254.
79
Id.
80
¶ 4, Moot Proposition.

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fewer indictments will take place and hoarding will go on and the ultimate motive for which
this legislation came into being would be defeated.

4.2.2. COURT SHOULD NOT INTERFERE INTO THE INTENTION OF THE LEGISLATURE

[¶ 47] “Parliament is charged with the primary responsibility for deciding the best way of
dealing with social problems. The court's role is one of review. The court will reach a
different conclusion from the Legislature only when it is apparent that the Legislature has
attached insufficient importance to a person's Convention rights”81
[¶ 48] It is humbly submitted that since the Act is made with the social purpose of
preventing hoarding for generating public welfare, hence the Court refrain from making
comments on where the burden of Proof should lie or else the purpose of the Act would be
defeated as the legislative intent was clear in this Act that is to deter the rice hoarders and
stop artificial shortage and price rise of rice in the market.

ISSUE 5 - THE PUNISHMENT PRESCRIBED BY THE ACT IS NOT EXCESSIVE AND

DISPROPORTIONATE

[¶ 49] The punishment prescribed by the Act is not excessive and disproportionate because
[5.1] Court should not interfere in a policy decision of the Legislature and [5.2] The court can
prescribe a lower punishment even if the maximum punishment prescribed by the Act is 10
years.

[5.1] THE COURT SHOULD NOT INTERFERE IN A POLICY DECISION OF THE LEGISLATURE

[¶ 50] It is humbly submitted that the policy decisions are a matter of the legislative
prerogative and it lies in the province of the Legislature82.The court must not substitute its
views in the decision of the State government with regard to policy matters. In fact, the court
must refuse to sit as appellate authority or super Legislature to weigh the wisdom of
legislation or policy decision of the government unless it runs counter to the mandate of the

81
Ghaidan v. Godin-Mendoza, 2004 UKHL 30.
82
Tarsem Lal v. State of Punjab, (2002) ILR 1Punjab.

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Constitution. The government is free to frame its policy, alter or modify the same as to the
needs of society. In such matters, the courts cannot interfere lightly as if the government is
unaware of the situation.84 This is because State’s constitutional authority and powers to
frame policy gets curtailed if the policies are inferred with judicial review lightly. The
measure and extent of punishment cannot be fixed by the Court as the Court cannot introduce
its own philosophy to determine the quantum of punishment.85 The court can only sit as an
appellate body on the government’s decision. The court can interfere only if the punishment
is shockingly disproportionate.

[¶ 51] Section 6 of the Act prescribes punishment of 10 years for the commission of the
offence.86 In this case, the punishment is not shockingly disproportionate and does not call for
interference by the judiciary.

5.1.1 PUNISHMENT IS NOT SHOCKINGLY DISPROPORTIONATE TO THE GRAVITY OF THE

CRIME

[¶ 52] It is humbly submitted that there are valid and sufficient reasons providing for severe
punishment under the rice prohibition act which are logically sound. Hoarding does not only
cause a rise in price87 for a small locality, it can affect the economy of the entire country.88
Hoarding can cause inflation89, which can cause a heavy loss to people with constant
incomes, the export of a country, social unrest, poverty, unemployment and many other
problems. Moreover, hoarding accentuates the shortage further and hence the accused may
feel more inclined to hoard more grains. This would form a vicious cycle which would
subject the entire society and particularly the poor to immense stress. So, the government
thought it prudent to provide stringent measures to combat hoarding. It has been found that if
low fines are imposed coupled with the fact that the offences could be compounded can result
in the unabated violation of the laws with impunity.90 The perpetrators of the pernicious
offences will always keep away from the clutches of the law and if at all caught, they will

83
State of Himachal Pradesh v HP Nizi Vyavsayik Prishikshan Kendra Sangh, 2011 6 SCC 597.
84
Id.
85
Siddaramaiah v. Anwari Basavaraj Patil, ILR 1994 Karnataka 552.
86
¶ 6, Moot Proposition
87
MuthaParasmal Jain and Ors. v. Union of India (UOI) and Ors., AIR 1981 Raj. 139.
88
Rajkot Lodhika Sahakari Kharid Vechan Sangh Ltd. and Ors. v. State of Gujarat and Ors., 1980 2 GLR 376.
89
N. Krishnaji, State Intervention And Food Grain Prices, SOCIAL SCIENTIST 85 (1975).
90
Joseph Chacko & Ors. v. State of Kerala & Ors.,1998 (1) KLJ 390.

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manage to get the offences compounded by payment of money. The Legislature of Indiana
thought it prudent to prescribe a punishment that could serve as an effective deterrent to
prohibit hoarding. Hence the courts should not interfere in this policy decision.

[5.2] COURT CAN PRESCRIBE A LOWER PUNISHMENT EVEN IF THE MAXIMUM PUNISHMENT
PRESCRIBED BY THE ACT IS 10 YEARS

[¶ 53] It is humbly submitted that in a statutory provision where no minimum punishment

has been prescribed, the words “liable to” a specific punishment must indicate that the
accused, upon conviction, becomes exposed to the possibility of any sentence within the
range of the court's competence.92 In the absence of clear words that a mandatory sentence
was intended it must be inferred that the Legislature intended the court to retain its discretion
as to sentence.93 The courts are usually given a discretion to prescribe a punishment lower
than the statutory limit as facts and circumstances can differ from case to case.

[¶ 54] Section 6 of the Act prescribes a punishment of 10 years for the commission of the
offence. There is nothing in the section which compels the conclusion that the Legislature
intended the imposition of a mandatory sentence. Hence, if an accused has factors which can
mitigate his punishment, the court is well within its powers to impose a lesser sentence.
Therefore, the section 6 of the Act cannot be struck down on grounds of the punishment
being disproportionate.

91
Id.
92
S v. Bruce, 1990 ZASCA 38.
93
Supra note 90.

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MEMORIAL FOR RESPONDENT PRAYER

PRAYER

In lights of the facts presented, questions raised, arguments advanced and authority cited the
counsels for the Respondent most humbly and respectfully pray before this Hon’ble Supreme
Court, that it may be pleased to adjudge and declare that:

1. The impugned is not dead letter.

2. The Act is not violative of Article 14, Article 19(1) (g) and Article 21 of the
Constitution of Indiana.
3. The punishment prescribed by the Act is not excessive and disproportionate

The Respondent thus prays that the impugned Act be declared valid.

The Court being satisfied, may also make any such order as it may deem fit in the light of
Justice, Equity and Good conscience. And for this act of kindness the Respondent shall as
duty bound ever humbly pray. Respectfully submitted,

-Counsel for Respondents

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