MEMORIAL ON BEHALF OF THE PETITIONER

IN THE HON’BLE SUPREME COURT OF INDIANA

In Writ Petition No Of 2018

Zinc Co. Ltd & Features Co. Ltd & Ors …Petitioners

v.
Union of Indiana …Respondent

CLUBBED WITH

Writ Petition No Of 2018

Mr. Harry …Petitioner

v.

Union of Indiana …Respondent

CLUBBED WITH

Writ Petition No Of 2018

Internet Service Provider, Web-Store, I-Store …Petitioners

v.

Union of Indiana …Respondent

PETITION INVOKED UNDER ARTs. 32 & 139A OF THE CONSTITUTION OF INDIANA

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

COMPANION JUSTICES OF THE SUPREME COURT OF INDIA
MEMORIAL ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS
MEMORIAL ON BEHALF OF THE PETITIONER

LIST OF ABBREVIATIONS

Abbreviations Full Form

¶ Para
AIR All India Reporter
All Allahabad
Bom Bombay
Cal Calcutta
Cr. L.J. Criminal Law Journal
Del Delhi
Ed. Edition
H.C. High Court
Kar. Karnataka
Ltd. Limited
M.P. Madhya Pradesh
No. Number
Ors. Others
p. Page
Para. Paragraph
PC Privy Council
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Report
SC/ST Scheduled Castes/Scheduled Tribes
Supp. Supplementary
U.P. Uttar Pradesh
MEMORIAL ON BEHALF OF THE PETITIONER

INDEX OF AUTHORITIES
 MEMORIAL ON BEHALF OF THE PETITIONER

STATEMENT OF JURISDICTION

The petitioners approach the Hon’ble Supreme Court of Indiana under Article 32 1 of the
Constitution against the orders restraining the use of applications; the search which led to the
violation of privacy of Mr. Harry and the penalties which were imposed on the I- store, web
store, ISP respectively.

1
Article 32 Remedies for enforcement of rights conferred by this Part
1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this
Part is guaranteed.
2. The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part
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.
MEMORIAL ON BEHALF OF THE PETITIONER

STATEMENT OF FACTS

BACKGROUND OF INDIANA

Indiana is a developing nation hosting a population of about 600 million people between the ages
of 16-25, with the consecutive growth and development of the country, coupled with the
liberalized policies of the newly elected government. Indiana has been gaining popularity as an
investment hub across the world. The country also requires foreign investment, to maintain and
stabilize unemployment, and also to effectuate development in different segments of the country,

INTRODUCTION OF ZINC ENTERPRISES AND COMMU APP

Zinc Enterprises was foreign IT Company which was attracted to the liberal and profitable
economic policies of Indiana, its services were economical and provided to every strata of the
society. In 2006, the company launched an application by the name of commu app This
application was a private messaging application that was easily available on the web store for
download onto smartphones or PCs The software used an easy user interface and functioned
using an ‘end-to-end encryption’ (‘E2EE’) communication system. Users could easily make an
account and share pictures, voice messages, videos, messages and documents with their personal
contacts through this medium.

Information about activity on the device, the applications that are running, the browsing history,
bookmarks, and cookies

Allow the app to determine the phone number and device ID’s, whether a call is active, and the
remote number connected by such a call.

Enable access to one or more identity of accounts on the device, profile data, etc.

Enable access to one or more files on the device such as images,

Enables access to videos, audios or the device’s external storage.

Grant access to phonebook and location information

Enable reading of/sync statuses; receive and share data from the internet.
MEMORIAL ON BEHALF OF THE PETITIONER

‘install’ button was provided in order to proceed with the installation, after which the users
wishing to proceed would have to accept the above-mentioned terms and conditions

THE RELATIONSHIP BETWEEN ZINC CO. LTD AND FEATURES CO. LTD

Features, another company which operated on the similar backdrop of Zinc and which was
headed by harry & parry officials it was said that a collaboration between them would help in
better product service experience to its users, Consent of users was obtained by ‘opt-in basis’,
which was available to the users on updating to the latest version of the application. ‘Features’
had paid ‘Commu-app’ a hefty amount of USD 10 Million for letting them use the personal
information, which was not to be disclosed in public.

THE LEAK AND ITS AFTERMATH

Post-January 2009 it was noticed that the private information of majority of the users shared by
them on both the applications was leaked on the internet An anonymous blog on the internet
explicitly stated that the information might have leaked through ‘Features’ on the internet, which
could be due to the lack of appropriate cyber security measures which were supposed to be taken
by the company. PCA, later, that night attacked some of the female employees of Features who
were seen going out to a pub. The employees were wrongfully restrained in a warehouse whole
night and paraded around the streets, the following morning with blackened faces whilst PCA
members were shouting slogans praising Indiana Culture.

THE SEARCH THAT WAS CONDUCTED ON HARRY’S PREMISES

The Central Government issued an order banning both, the Commu app and features app.
Consequently, the Investigating Officer entered the headquarters of features and seized all the
computers, papers and hard disks. Additionally, edited pictures of various women were found
hanging on clipboards along with several letters lying on the floor Apart from all this, another
torn letter was found in bits and pieces written by Harry to his ex-girlfriend Karry, stating that he
wanted to change the societal perspective of womanhood and expand boundaries of socio-legal
sentience taking into consideration the strata of morality and ethics prevalent in the society.

CHARGES
MEMORIAL ON BEHALF OF THE PETITIONER

Features Co. Ltd, and its directors were charged under various offences concerning the obscene
matter in February 2011. Harry and Parry applied to the High Court for quashing of various
Complaints under Section 482 of the Code of Criminal Procedure.

Both Features Co. Ltd and Zinc Enterprises Ltd. simultaneously filed a Writ Petition in the High
Court challenging the order banning the applications, contending that no case could be drawn out
as Feature app was not behind the publishing of obscene content.

Internet service providers, i-store and web-store filed a Writ Petition in the Supreme Court
challenging the allegations and order of penalties imposed on them as being draconian and
amounting to restrictions on the freedom of speech and expression.

Unable to make personal appearances for various petitions, Harry and Parry along with Zinc
Enterprises Ltd. Requested to move to the Hon’ble Supreme Court under Article 139A to
transfer all the cases to itself. The intermediaries already had filed a similar petition for the same.
A division bench appointed to hear this matter gave direction to stay and transfer all proceedings
to the Constitution bench headed by the Chief Justice as the case involved crucial issues
pertaining to Constitutional importance. In the interim order, the judges observed, inter alia, that:
“Nothing is less than Judicial Independence, Courts should not be subject to improper influence
from the other branches of Government or from private or partisan interests. Those breaking the
law must be punished heavily as the authorities deem fit in the interest of justice, equity, and
good conscience”.

The Chief Justice after forming the Constitution Bench passed a fresh interim order putting stay
on all proceedings and remanding all matters to the Bench. The Court denied any further
remands and stated that it will deal with any further interim orders and that it will hear the matter
finally on August 20, 2018.
MEMORIAL ON BEHALF OF THE PETITIONER

ISSUES RAISED

WHETHER SECTIONS 67A, 69A AND 69B OF THE INFORMATION TECHNOLOGY ACT
2000 ALONG WITH SECTION 340 OF THE INDIAN PENAL CODE AND SECTIONS 3 & 4
OF THE INDECENT REPRESENTATION OF WOMEN’S ACT, 1986 ARE LEGITIMATE
AND CONSTITUTIONALLY VALID?

WHETHER THERE WAS ANY UNDUE INFRINGEMENT OF THE RIGHT TO PRIVACY

BY THE SEARCH OF PRIVATE DOCUMENTS AND LETTERS WHICH WERE NOT
MEANT FOR PUBLIC DISCLOSURE?

WHETHER THERE IS A VIOLATION OF ARTICLE 20(3) OF THE CONSTITUTION IF

ANY PRIVATE UNPUBLISHED DOCUMENTS HAS BEEN USED IN ORDER TO
CONVICT THE ACCUSED?
MEMORIAL ON BEHALF OF THE PETITIONER

SUMMARY OF ARGUMENTS

WHETHER SECTIONS 67A, 69A AND 69B OF THE INFORMATION TECHNOLOGY ACT
2000 ALONG WITH SECTION 340 OF THE INDIAN PENAL CODE AND SECTIONS 3 & 4
OF THE INDECENT REPRESENTATION OF WOMEN’S ACT, 1986 ARE LEGITIMATE
AND CONSTITUTIONALLY VALID?

The counsel on behalf of the Petitioners most humbly submits that all the aforementioned
statutes are not constitutionally valid hence impugned on the following grounds.

The allegations framed against Zinc Enterprises Ltd. and Features Company Ltd. are arbitrary
and indecisive in nature.

The accused is liable to be convicted under Section. 340 of the Indian Penal Code, 1860.

The allied provisions of the Indecent Representation of Women’s Act,1986 is not attracted.

WHETHER THERE WAS ANY UNDUE INFRINGEMENT OF THE RIGHT TO PRIVACY

BY THE SEARCH OF PRIVATE DOCUMENTS AND LETTERS WHICH WERE NOT
MEANT FOR PUBLIC DISCLOSURE?

The counsel on behalf of the Petitioners most humbly submits that there is an undue
infringement of the right to privacy by the search of documents and letters which were not meant
for public disclosure on the following grounds.

The search and seizure as conducted by the Investigating officer is ultra vires of CrPC and is
legally impermissible.

The evidence collected by the search is inadmissible in the court of law.

WHETHER THERE IS A VIOLATION OF ARTICLE 20(3) OF THE CONSTITUTION IF

ANY PRIVATE UNPUBLISHED DOCUMENTS HAS BEEN USED IN ORDER TO
CONVICT THE ACCUSED?

The counsel on behalf of the Petitioners most humbly submits that there is a violation of Article
20(3) of the Constitution as private unpublished documents has been used in order to convict the
accused on the following grounds.
MEMORIAL ON BEHALF OF THE PETITIONER

The search was unlawful in accordance with the procedure followed by law.

The accused was subjected to testimonial compulsion which is a direct breach of the safeguards
under Article 20(3) of the Constitution.
MEMORIAL ON BEHALF OF THE PETITIONER

ARGUMENTS ADVANCED

ISSUE I:-

THE SECTIONS 67A, 69A AND 69B OF THE INFORMATION TECHNOLOGY ACT 2000
ALONG WITH SECTION 340 OF THE INDIAN PENAL CODE AND SECTIONS 3 & 4 OF
THE INDECENT REPRESENTATION OF WOMEN’S ACT, 1986 ARE NOT LEGITIMATE.

It is most humbly submitted before the honourable court that in the present case, the statutes
concerning the cyber-security and privacy of the aggrieved parties are not attracted and shall not
be exercised by the honourable court. The constitutional legitimacy of the relevant provisions of
the Information Technology Act, 2008 are impugned on the following grounds being (i) The
allegations framed against Zinc Enterprises Ltd. and Features Company Ltd. are arbitrary and
indecisive in nature; (ii) The accused is liable to be convicted under Section. 340 of the Indian
Penal Code, 1860 (iii) The provisions of Indecent Representation of Women’s Act, 1986 is not
attracted.

THAT THE ALLEGATIONS FRAMED AGAINST ZINC ENTERPRISES LTD. AND

FEATURES COMPANY LTD. ARE ARBITRARY IN NATURE.

The applicant submits that the alleged leak of private data which is said to have been facilitated
by Features Ltd is based on vagarious judgement and ignorance. It is stated that the State of
Indiana has no authentic or reliable source which arraigns either of the companies as an
intermediary between the users and their alleged leak of data via their platform and they have
hinged their prosecution based on a post via an anonymous internet blog. 2 The State of Indiana
has established its prosecution against the respondents without the affirmation of any competent
authority which could have indicted the respondents for facilitating the alleged leak and has
rather relied on an underwhelming source.

The U.S Courts in Jernigan v. Louisiana3 laid down the fundamental test for determining the
veracity and authenticity of a tipster, and observed that in order to act upon the informant’s tip it
is essential for the officials to be assured that the information being provided to them is reliable
and actionable, drawing out a comparison with previous precedents the court also accentuated on
2
¶ 11, Para 3, National Moot Proposition, XII Internal Moot Court Competition, 2018
3
1980 SCC On Line US SC 98
MEMORIAL ON BEHALF OF THE PETITIONER

In the case of Avnish Bajaj v. State 4 where a website was used as an intermediary for the sale of
an adult video clip even with proper countermeasures in place, the crime branch arraigned the
director of the company as a defendant. However, the Delhi HC absolved him of the charges and
acquitted the director citing immunity against S.292-294 of IPC.

Furthermore, via the evolution of cases concerning the liability of directors in India emanating
from the division bench decision in Aneeta Hada v. Godfather Tours & Travels 5 where a dispute
arose regarding the Negotiable Instruments Act and later, in Sharat Babu Digumarti v. Govt of
NCT of Delhi6 wherein the court held that the director could not be held liable for the offence
under S. 85 of the Information Technology Act, it is submitted that in the present case the
directors are also prevented from prosecution and the relevant penalties.

THAT THE ACCUSED IS LIABLE TO BE CONVICTED UNDER S. 340 OF THE INDIAN

PENAL CODE.

According to the provisions of S. 340, Of the Indian Penal Code, 1873, whoever wrongfully
restrains any person in such a manner as to prevent that person from proceeding beyond certain
circumscribing limits, is said to “wrongfully confine” that person. Similarly, in the present
context, the female employees of features were wrongfully restrained in a warehouse, for the
whole night and paraded around the streets, the following morning with blackened faces whilst
PCA members were shouting slogans, thereby the accused is liable to be punished under S.342
of IPC, for committing the aforementioned crime.

The essential ingredients of the offence of wrongful confinement are:

The accused should have wrongfully restrained the complainant.7

Such wrongful restraint was to prevent the complainant from proceeding beyond certain
circumscribing limits beyond which he or she has right to proceed.8

4
(2005) 3 CompLJ 364 Del
5
2012 5 SCC 661
6
AIR 2017 SC 150
7
Deep Chand v. State of Rajasthan AIR 1961 SC 1527
8
Raju Pandurang Mahale V. State of Maharashtra AIR 2004 SC 1677, (2004) 4 SCC 371
MEMORIAL ON BEHALF OF THE PETITIONER

In correlation to the essence of this penal statute, the Gujarat High court in the case of State of
Gujarat v. Keshav Lai Maganbhai Gujoyan9, observed that for a charge of wrongful confinement,
proof of actual physical restriction is not essential. It is sufficient if the evidence shows that such
an impression was produced in the mind of victim, a reasonable apprehension in his mind that he
was not free to depart. Thereby, it is clearly evident from the facts of the proposition that the
female employees were apprehended with voluntary compulsion, forced to stay within the
premises of the warehouse, and had their faces forcibly blackened, thereby making the accused
criminally liable.

Secondly, in the case of Shamsudheen v. State of Kerala 10, the petitioners had wrongfully
confined two police officers, who were performing their investigative duties. The court held that
their degree of defiance towards the framework of law cannot be condoned, and phsycial might
cannot be allowed to get the higher hand of law. Subsequently, in the present scenario, the
members affiliated to PCA had used their might to socially shame the workers, and had
wrongfully encroached on their freedom of movement, thereby being liable to be convicted of
this offence.

Lastly, in the case of Jay engineering works v. State of West Bengal 11, the court held that
physical blockade of a target, by any means, by a group of people that restrains the freedom of
movement, amounts to the criminal offence of wrongful restraint and wrongful confinement. It is
clearly observed and proofed in the proposition, that the workers were restrained in the
warehouse, for one whole night, by a group of PCA activists. Thereby, all essentials of the
offence under s.340 stand proved, beyond all arrears of reasonable doubt, and the charge should
be legally sustained.

THE ALLIED PROVISIONS OF THE INDECENT REPRESENTATION OF WOMEN’S

ACT, 1986 IS NOT ATTRACTED.

It is submitted before the honorable court that Section 3 of the Act, 1986 speaks of ‘Prohibition
of advertisements which contains indecent representation of woman’. And Section 4 of the Act
enjoins ‘Prohibition of Publication or Sending by post of books, pamphlets, etc., containing

9
1993 Cr LJ 248 (Guj)
10
(1989) Cr LJ 2068 (Ker)
11
AIR 1968 Cal 407
MEMORIAL ON BEHALF OF THE PETITIONER

indecent representation of women’ and in the present case Mr. Harry is being wrongfully
charged as an accused under the aforementioned sections. In order to arraign someone under the
Indecent Representation of Women’s Act, 2000 it is essential to fulfill the definition laid down in
S.2(c) of the act which defines Indecent Representation of Women and states that it means the
“depiction in any manner of the figure of a woman, her form or body or any part thereof in such
a way as to have the effect of being indecent, or derogatory to, or denigrating, women, or is
likely to deprave, corrupt or injure the public morality or morals”.

The test for obscenity as given in Aveek Sarkar & Anr. v. State of WB 12 was said to be
determined from the point of view of an average person and in context of contemporary mores
and national standards, as the concept of obscenity keeps changing with social values and that
the message which is supposedly offending the photograph should be significant. In the
following case, a photograph of a German tennis player was reported by the public for violation
S.4 of the act but the court held that no offence was committed and in Vinay Mohan Sharma v.
Delhi Administration13 it was held that the concept of obscenity is generally moulded by the
social outlook of the people who are expected of adjudging it. Similarly, in Ajay Goswami v.
Union of India & Ors14 wherein a petition for mandamus was filed to prevent the children and
minors from disturbing and harmful materials, it was held that shielding minors should not mean
that the adult population is restricted to read and see what is fit for the children and upheld
Article 19(1) (a) citing that there should be no suppression of free speech supposedly to protect
children from harmful materials.

In the present scenario, it has been established already that Mr. Harry lacked ill-will in any form
or shape against the users whose private pictures had leaked unfortunately, moreover it was his
intention to challenge the orthodoxy of the socio-legal status of womanhood and to widen its
ambit and facilitate a more liberal way of thinking whilst also attempting to redefine the status
quo of morality and ethics in the society.15

ISSUE II:

12
(2014) 4 Supreme Court Cases 257
13
(2007) SCC Online Del 1488
14
(2007) 1 Supreme Court Cases 257
15
¶ 11, Page 3, National Moot Proposition, XII Internal Moot Court Competition, 2018
MEMORIAL ON BEHALF OF THE PETITIONER

THERE WAS AN UNDUE INFRINGMENT OF RIGHT TO PRIVACY BY THE SEARCH OF

PRIVATE DOCUMENTS AND LETTERS WHICH WERE NOT MEANT FOR PUBLIC
DISCLOSURE.

It is most humbly submitted before the Hon’ble court that there was an undue infringement of
Right to Privacy under Art.21 of the COI by the search of private letters and documents which
were not meant for public disclosure because (1) it is violative of the procedure as laid down in
Cr.P.C.; (2) the evidence collected is inadmissible in the court of law. (3) ultra-vires of the
constitutional provisions.

THAT THE ‘SERACH & SEIZURE’ AS CONDUCTED BY THE INVESTIGATING

OFFICER IS ULTRA-VIRES OF CR.P.C AND LEGALLY IMPERMISSIBLE.

Just as a citizen cannot be deprived of his personal liberty except under the authority of the law
no officer of the State has a prerogative right to forcibly enter a citizen’s house except under the
authority of the law.16 The investigating officer, while searching the headquarters of Features Co.
Ltd, had not followed the procedure laid down by law as it did not get a search warrant to search
the premises of the headquarters. Section 93 of Cr.P.C provides for the general procedure of
search and it allows for only a magistrate to issue a warrant for the search of any ‘document or
thing’17, which in the present case was not issued. Section 100 provides that persons in charge of
a closed place, only on execution of a search warrant by the officer, may allow free ingress 18 to
the property and in the instant case, even the permission of the person in charge of the property
i.e. Mr. Harry, the promoter director of Features was not sought. Moreover, the Police can only
conduct a search without a warrant in accordance with the strict guidelines laid down in Section
165 of the Cr P.C. The Hon’ble SC of India has repeatedly held that the power of Police to
investigate is not unlimited and such power should be exercised within limits as prescribed by
the code.19 The Inspector in the present case has not followed the procedure as prescribed under
this section which puts a question on the evidences therefore adduced.

THAT THE SEARCH WAS NOT SPECIFIC AS REQUIRED BY SECTION. 165 OF CR.P.C

16
State v. Bhawani Singh, AIR 1968 Del 208, 211 (FB);
17
S 93, The Code of Criminal Procedure, 1973
18
S. 100, The Code of Criminal Procedure, 1973
19
Chandran Ratnaswami v. K.C. Palanisamy, (2013) 6 SCC 740
MEMORIAL ON BEHALF OF THE PETITIONER

The section does not permit a general search. It must be for particular things or documents, or
specified materials, necessary for the investigation.’ 20 When a police officer searches a house for
stolen articles generally and not for any articles mentioned by the complainant has been stolen
from him, the search would be considered as a general search and therefore not having a legal
authority under this section. A promiscuous entry into places is not permitted to an investigating
officer simply to satisfy himself as to the truth of an allegation made by a complainant or an
accused person or a witness.21 The police made the search in reaction of the aimless complaints
that were filed by the PCA against the accused, as subsequent to the ban of the applications
(Features and Commu) by the Central Government. 22 They did not know what exact evidence
was to be seized and gathered hence leaving the search to be not specific but general in nature.

THAT THE ABSENCE OF REASONABLE GROUNDS FOR THE JUSTIFICATION OF THE

REQUIREMENT OF UNDUE DELAY WHICH LEADS TO SEARCH WITHOUT
WARRANT.

a) any specific thing necessary for the purposes of the investigation may be found in the
place within the limits of his police station and

b) Such thing, in his opinion, cannot otherwise be obtained without undue delay i.e. in his
opinion it would be too late before a search-warrant is obtained from a Magistrate.’23

This section gives power to the police officer to search without warrant if he has ‘reasonable
grounds for believing’ and not just ‘reasonable suspicion’. It means a belief based on definite
facts.24 There were no such definite facts leading up to the case which could have been
previously made to establish a system of reasonable belief upon which the Inspector could have
acted in. Hence the paucity of time not as a consideration, search without warrant is not proper
and the recovery of evidence would itself come under suspicion.25

20
Lal Mea v. Emperor, (1962) 27 Cri LJ 542: AIR 1925 Cal 663; Ram Parves Abir v. Emperor,
(1944) 45 Cri LJ 802: AIR 1944 Pat 228; Sitaram Ahir v. Emperor, (1944) 45 Cri LJ 806: AIR 1944
Pat 222, 224.
21
Jagannath v. Emperor, (1928) 29 Cri LJ 272 (AII)
22
¶ 11, Page 3, National Moot Proposition, XII Internal Moot Court Competition, 2018
23
The Code Of Criminal Procedure, 1973.165(1)
24
Observations in Pratap v. Director of Enforcement, (1985) 3 SCC 72: 1985 SCC (cri) 312: 1986 Cri LJ 824
25
A.P. Kuttan Panicker v. State of Kerala, (1963) I Cri LJ 669, 673 (Ker); Emperor v. Mohd. Shah,
(1948) 48 Cri LJ 161: AIR 1946 Lah 146
MEMORIAL ON BEHALF OF THE PETITIONER

THAT THE ABSENCE OF THE WRITTEN RECORD OF GROUNDS OF BELIEF FOR

CONDUCTING THE SEARCH

A good procedural safeguard against arbitrary searches and against general or roving searches is
provided when the section insists that the police officer before proceeding to search a place must
record the grounds of his belief as to the necessity of such search and must also specify in such
writing the things for which the search is to be conducted. 26 That would obviate the possibility of
a police officer manipulating and choosing his ‘grounds of belief’ after having in fact a general
roving search. By requiring the police officer to specify beforehand, the article for which the
search is to be made, it would also limit the extent of search and would consequently restrict the
encroachment. The recording of reasons is an important step in the matter of search and to
ignoreit is to ignore the material part of the provisions governing searches. 27 If the reasons are
recorded in the case diary, that would not amount to due compliance with the mandatory
provisions of the section as the accused in the case would not be able to claim a copy of the extra
ct of the case diary.28 The non-recording of the reasons for search would make the search
illegal.29 An illegal search may entail punishment of the police officer who may be asked to pay
compensation to the person whose place has been searched.30

THAT THE ABSENCE OF CAPABLE WITNESSES GIVES WAY TO THE POSSIBILITY

OF CONCOCTION OR MALPRACTICE TO THE SEARCH.

The search is to be made in the presence of at least two independent and respectable inhabitants
of the locality in which the place to be search is situated. 31 What is more important to be
emphasized is the respectability of the witness rather than his locality or independence. 32 The
presence of witnesses at the search is always desirable and their absence will weaken and
sometimes destroy the acceptance of the evidence as to the finding of the articles. 33 It has also
been said that sub-section (4) does not mean that the investigating officer can have two or three
26
Sohan Lal v. Emperor, (1933) 34 Cri LJ 568; State v. Satyanarayan Mallik, AIR Ori 136; Emperor v. Mohd. Shah,
(1948) 48 Cri LJ 161: AIR 1946 Lah 146
27
State of Rajasthan v. Rehman, 1960 Cri LJ 286: AIR 1960 SC 210
28
Sanchaita Investments v. State of W.B, AIR 1981 Cal 157
29
State v. Satyanarayan Mallik, AIR Ori 136
30
Sharda Singh v. State of U.P., 1999 Cri LJ 1880 (AII)
31
The Code Of Criminal Procedure, 1973.100(4)
32
Tul Mohan Ram v. State 1081 Cri LJ (NOC) 223 (Del)
33
Malak Khan v. Emperor, (1946) 47 Cri LJ 489, 492: AIR 1946 PC 16, 19; Sahib Singh v. State of Punjab, (1996)
II SCC 685: 1997 SCC (Cri) 315
MEMORIAL ON BEHALF OF THE PETITIONER

persons accompanying them for searches,34 further preventing to make the list of all the things
found and signed by the witnesses.35 In the present case, the investigating officer himself entered
the headquarters of the features and seized the evidence in absence of any witness or
accompanying persons. This vitiates the procedure of a search and renders the finding of articles
and using them as evidence illegal and inadmissible in the court of law.

THAT THE EVIDENCE COLLECTED THROUGH THE SEARCH IS ADMISSIBLE IN THE

COURT OF LAW.

When there is no registration of any FIR, the visit of the Police officer to the premises cannot be
described as having been made in the course of an investigation. 36 Moreover, the factsheet is
silent about whether any reasons were recorded in writing for carrying out the search by the
officer and therefore, the same cannot be assumed to be complied with. Accordingly, the search
was in contravention of Section 165 of the Code. 37Assuming without admitting that there were
written recordings submitted, the search was carried out without a search warrant being executed
and the same is therefore bad in law. And if the search is illegal, anything seized during such an
illegal search has to be returned38.

It is thus, humbly contended that the evidence found as a part of this illegal search should be
excluded in the instant case because the requirement of reasonableness can only be fulfilled
when a search is conducted subsequent to obtaining a warrant from a neutral magistrate, by
demonstrating probable cause to believe that evidence of any unlawful activity would be found
upon such search. If the Police officer has made improper use of investigatory power or there is
abuse of power, the court may intervene to protect the personal and or the property rights of a
citizen.39 The Hon’ble SC of India has held that when there is violation in the procedure of
‘Search & Seizure’, the courts need to see if there is any prejudice against the accused. 40
Moreover, The SC of India has held that if the violation in procedure committed by the Police is

34
Public Prosecutor v. Pamarti Venkata Chalamaiah, 1957 Cri LJ 830: AIR1957 AP 286, 288
35
The Code Of Criminal Procedure, 1973.100(5)
36
Sharda Singh v. State of U.P, (2009) 11 SCC 683
37
The State of Rajasthan v. Rehman, AIR 1960 SC 210
38
Calcutta High Court in New Central Jute Mills Co. Ltd. v. T. N. Kaul & Ors, AIR 1966 Cal 36
39
Manohar Lal Sharma v. Principal Secretary and Ors., AIR 2014 SC 666.
40
State of Punjab v. Balbir Singh 1994 (3) SCC 299.
MEMORIAL ON BEHALF OF THE PETITIONER

of a serious nature which causes serious prejudice to the accused, such evidence should be
excluded.41

THE SEARCH AND SEIZURE CONDUCTED IS ULTRA-VIRES OF CONSTITUTIONAL

PROVISIONS.

The right to privacy is analysed with respect to the rights inter se private parties and the
constitutional right against the State.42 Privacy is important to every individual and one’s
personal information is a form of personal property to an individual. Therefore, every individual
has the right to regulate collection or disclosure of information and is entitled by law to protect it
in a similar manner as his property ownership. In the instant case, the police, by conducting the
search and seizure at the headquarters of Features, without a proper judicial warrant and
permission, has infringed his reasonable expectations of privacy. The Hon’ble SC of India has
held that right to privacy is a part of the right to life and personal liberty enshrined under
Art2143and once the facts in a given case constitute a right to privacy, Art 21 is attracted. 44
Moreover, in a recent landmark judgment, a nine judge bench of the Hon’ble SC of India has
unanimously declared the right to privacy as a “guaranteed fundamental right” under Art 21 of
the Constitution.45 The SC of India had also held that an investigating agency should carry out
the investigations with fairness and according to the procedure established by law as a tainted
investigation definitely leads to the miscarriage of criminal justice, and thus deprives a man of
his fundamental rights guaranteed under Art 21 of the Constitution. 46 Thus, the act of the Police
in searching the office and obtaining information from the Internet Service Provider, without his
permission was in direct violation of Right to privacy of Mr. Harry.

Universal Declaration of Human Rights (UDHR) (1948) refers to privacy and it states: "No one
shall be subjected to arbitrary interference with his privacy, family, home or correspondence or
to attacks upon his honour and reputation. Everyone has the right to the protection of the law

41
State of M.P. v. Paltan Mallah, 2005 (3) SCC 169.
42
R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264, 1994 (6) SCC 632
43
People’s Union of Civil Liberties v. Union of India, AIR 1991
SC 207, 211; R.Rajagopal v. State of Tamil Nadu, AIR 1995 SC
264.
44
Ibid.
45
Justice K.S. Puttaswami (retd.) & Anr. v. Union of India & Ors., W.P. (Cvl.) 494/2012
(Supreme Court, 24/08/2017)
46
Karan Singh v. State of Haryana & Anr., (2014) 175 PLR 816
MEMORIAL ON BEHALF OF THE PETITIONER

against such interference or attacks." While International Covenant of Civil and Political Rights
refers to privacy and states that "No one shall be subjected to arbitrary or unlawful interference
with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and
reputation."

ISSUE III:-

THERE IS A VIOLATION OF ARTICLE 20 (3) OF THE CONSTITUTION AS PRIVATE

UNPUBLISHED DOCUMENTS AND INFORMATION HAS BEEN USED IN ORDER TO
CONVICT THE ACCUSED.

It is most humbly submitted before the Hon’ble court, that the investigating officer, in arbitrary
and vagrant use of his vested powers, has breached the protective umbrella of Article 20 (3) by
compelling the accused to produce a document, of incriminatory nature because (1) the search
was not conducted accordance with the procedure followed by law and (2) the accused was
subjected to testimonial compulsion which is ultra-vires to the COI.

THAT THE SEARCH AND SEIZURE WAS UNLAWFUL, IN ACCORDANCE TO THE

PROCEDURE FOLLOWED BY LAW.

Under Section 16547 four conditions are imposed (i) the police officer must have reasonable
ground for believing that anything necessary for the purposes of an investigation of an offence
cannot, in his opinion, be obtained otherwise than by making a search without undue delay 48 (ii)
he should record in writing the grounds of his belief and specify in such writing as far as possible
the things for which the search is to be made.49 (iii) he must conduct the search, if practicable, in
person50 and (iv) if it is not practicable to make the search himself, he must record in writing the
reasons for not himself making the search and shall authorize a subordinate officer to make the
search after specifying in writing the place to be searched, and so far as possible, the things for
which the search is to be made.

47
S.165, The Code of Criminal Procedure, 1973
48
Partap v. Director of Enforcement (1985) 3 SCC 72: 1985 SCC(CRI) 312: 1986 Cr.LJ 824
49
Sohan Lal v. Emperor (1933) 34 Cri LJ 568
50
Venkatappa Naidu v. King Emperor 6 Cr LJ 105
MEMORIAL ON BEHALF OF THE PETITIONER

In the pertaining case, all the investigating officer had as a reasonable ground of belief, was a tip-
off from an anonymous blog. His conjecture was not based on definite facts, and as interpreted in
the case of Partap v. Director of Enforcement51 such does not pass the test of reasonability.

Secondly, there was no record of any reason or belief, stated in the internal case diary, thereby
making the search illegal.52 In K.L Subhayya v. State of Karnataka,53 the investigating officer had
not made any record of the grounds of his reasonable belief that an offence under the Act was

THAT THE ACCUSED WAS SUBJECTED TO TESTIMONIAL COMPULSION WHICH IS

A DIRECT BREACH OF THE SAFEGUARDS UNDER ARTICLE 20(3) OF THE
CONSTITUTION.

The Fundamental Right guaranteed under Article 20(3) is a protective umbrella against
testimonial compulsion for people who are accused of an offence and are compelled to be a
witness against themselves.54 The provision borrows from the Fifth Amendment of the American
Constitution which lays down that, “No person shall be compelled in any criminal case to be a
witness against himself”, same as mentioned in the Constitution of India embodying the
principles of both English and American Jurisprudence. This libertarian provision can be
connected to an essential feature of the Indian Penal Code 55 based on the lines of Common Law
that, “an accused is innocent until proven guilty” and the burden is on the prosecution to
establish the guilt of the accused; and that the accused has a right to remain silent which is
subject to his much broader right, against self-incrimination. The safeguard contained in clause 3
of Article 20, the privilege against self-incrimination has been incorporated in the Code of
Criminal Procedure/in section l61, which thereby enacts a measure of protection against
compelled testimony through police torture/Violence or over-bearing and intimidatory methods
which are unfortunately still prevalent.

Gajendragadkar, J. pointed out that one of the essential conditions for invoking the constitutional
guarantee enshrined in article 20(3) is that a formal accusation relating to the commission of and

51
(1985) 3 SCC 72: 1985 SCC(CRI) 312: 1986 Cr.LJ 824
52
State v. Satyanarayan Mallik, AIR 1965 Ori 136
53
A.I.R. 1979 S.C.711.
54
5th Amendment of the U.S Constitution
55
The Indian Penal Code, 1860
MEMORIAL ON BEHALF OF THE PETITIONER

of an offence, which would normally lead to his prosecution must have been levelled against the
party which is being compelled to give evidence against him.56

The Supreme Court in Nandini Satpathy v. P.L. Dani, 57 exhaustively dealt with the philosophy
behind the privilege against self-incrimination and delineated the contours of this privilege, the
Court pointed out that the prohibitive sweep of protection against self-incrimination goes back to
the stage of police interrogation and is not confined to court proceedings. The ban on self-
accusation and the right to silence go beyond the case in question and protect the accused in
regard to the other offences pending or imminent which may deter him from voluntary disclosure
of incriminatory matter. The Court held that if there is any mode of pressure subtle or crude,
mental or physical direct or indirect, but sufficiently substantial applied by the police in
obtaining information from the accused, strongly suggestive of guilt it becomes compelled
testimony violates the privilege against self-incrimination. Similarly, the Investigating officer,
during his course of pre-trial investigation, had indirectly compelled the accused, and seized the
private documents, thereby making the evidence incriminating of his rights.

Article 20(3) of the Constitution provides that no person accused of any offence shall be
compelled to be a witness against himself. The matter came up for consideration before the
Supreme Court in M.P. Sharma v. Satish Chandra, 58 though indirectly the Court assumed that,
this section i.e. section 9159 (section 94 of the old Code) is applicable to the accused and that
there is an element of compulsion implicit in the process contemplated by this section because/in
any case, non-compliance results in the unpleasant consequence of invasion of one’s premises
and rummaging of one's private property by the minions of law under. Similarly, in the present
scenario, the IO had seized the unpublished, private documents from the headquarters of
Features, was in the order of an indirect testimonial compulsion, thereby furnishing itself as self-
incriminatory evidence.

The Supreme Court in the case of State of Bombay v. Kathi Kalu Oghad,60 pointed out that ' to be
a witness' is not equivalent to 'furnishing evidence’ in its widest significance so as to include also
production of documents or giving of materials which may be relevant at a trial to determine the
56
Raja Narayanlal Bansilal v Maneck Phiroz, AIR 1961 SC 29-38.
57
1978 AIR 1025, 1978 SCR (3) 608
58
1954 AIR 300, 1954 SCR 1077
59
S.91, The Code of Criminal Procedure, 1973
60
A.I.R. 1961 S.C. 1808
MEMORIAL ON BEHALF OF THE PETITIONER

guilt or innocence of the accused. As thereunto, the edited pictures, letters, as well as the private
letter written by Mr. Harry to Parry, had enough substantial value to frame a charge of guilt on
the accused. Therefore, the arbitrary use of S.165, in searching and seizing private documents,
has compelled the accused to an indirect testimony, and denuded his sheath of personal liberty,
here forth portraying blatant violation of Article 20(3) of the Indian Constitution.
MEMORIAL ON BEHALF OF THE PETITIONER

PRAYER

Wherefore, in light of the legal precedents and principles cited, issues raised and in light of the
provisions of the Constitution applied and arguments advanced, it is humbly pleaded before the
Hon’ble Court that this Court adjudges and declare that:

By a writ of mandamus or any other writ prohibiting the state from publishing Mr.

The ‘Search and Seizure’ conducted by the police as ultra-vires of the constitution and the
procedure prescribed by law.

By any other writ or direction, direct the state of Indiana to enforce the provisions of

Articles 20 (3) and 19 (1) (a) and (g) of the Constitution.

And pass any such order, writ or direction as this Hon’ble Court deems fit and proper for which
the Petitioner shall duty bound forever pray.

ALL OF WHICH IS MOST RESPECTFULLY SUBMITTED

S/d__________________

COUNSEL FOR THE PEITIONERS