TEAM CODE- 51

~ 6th AUMP National Virtual Moot Court Competition, 2022~

IN THE HON’BLE SUPREME COURT OF INDIA

WRIT PETITION No. _____/ 2022

IN THE MATTER OF ART.136 OF THE CONSTITUTION OF INDIA, 1951

NARCOTICS CONTROL BEREAU…………………………...………………….……… PETITIONER

VERSUS

RAUNAK SINGH & ORS....……………………………………………………………..… RESPONDENT

BEFORE THE HON’BLE JUSTICES OF THE SUPREME COURT OF INDIA

MEMORIAL ON BEHALF OF THE PETITIONER

 ~ 6th AUMP National Virtual Moot Court Competition, 2022~
Memorial on behalf of Petitioner

TABLE OF CONTENTS

LIST OF ABBREVIATIONS.............................................................................................................3
INDEX OF AUTHORITIES...........................................................................................................5
STATEMENT OF JURISDICTION..................................................................................................6
STATEMENT OF FACTS..................................................................................................................6
INTRODUCTION...............................................................................................................................6
BACKGROUND..................................................................................................................................7
ISSUES RAISED.................................................................................................................................8
SUMMARY OF ARGUMENTS.........................................................................................................8
ARGUMENTS ADVANCED..............................................................................................................9
ISSUE 1: WHETHER THE PROCEDURE LEADING TO THE ARREST WAS
VALID.....................................................................................................................................9
[I. A] THE PETITIONERS RAIDED THE SHIP LAWFULLY..............................................9
[I. B] THE PETITIONERS CONDUCTED A LAWFUL RAID & INTERROGATION..................9
[I. C] THE PETITIONERS HAVE ARESSTED THE ACCUSED LAWFULLY......................10
ISSUE 2: WHETHER THE FIR SHOULD BE QUASHED U/A 136 OF THE
CONSTITUTION......................................................................................................................10
[II. A] THE FIR IS VALID & LAWFUL....................................................................................10
[II. B] VALIDITY OF SEC. 8(C)................................................................................................11
[II. C] VALIDITY OF SEC. 27..................................................................................................11
[II. D] VALIDITY OF SEC. 28..................................................................................................12
[II. E] VALIDITY OF SEC. 29...................................................................................................12
[II. F] VALIDITY OF SEC. 35....................................................................................................13
ISSUE 3: WHETHER WHATSAPP CHATS ARE AN ADEQUATE REASON FOR
ARRESTING THE ACCUSED................................................................................................13
[III. A] THE WHATSAPP CHATS CAN BE USED AS EVIDENCE IN COURT....................13
[III. B] TAPPING INTO THE ACCUSED’S WHATSAPP CHATS DOES NOT BREACH
THEIR PRIVACY.......................................................................................................................14
ISSUE 4: WHETHER ACCUSED NO. 1 SGHOULD BE GRANTED BAIL.......................14
[IV. A] ACCUSED NO. 1 IS GUILTY OF MULTIPLE SECTIONS UNDER THE NDPS ACT,
1985.............................................................................................................................................15
[IV. B] ACCUSED NO. 1 DOES NOT MEET THE STANDARDS FOR GRANTING BAIL. .15
PRAYER............................................................................................................................................16

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LIST OF ABBREVIATIONS
LIST OF ABBREVIATIONS

ABBREVIATION ACTUAL TERM

& and
NDPS Narcotic Drugs & Psychotropic Substances
Hon’ble Honourable
W.R. T With Respect To
Ors. Others
v Versus
NCB Narcotics control bureau
Art. Article
FIR First Information Report
Sec. Section
SC Supreme Court
Govt Government
No. Number
Acc. According
CrPC Criminal procedure code
U/A Under Article
SLP Special Leave Petition
HC High Court
R/W Read with
Etc. Etcetera

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INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

[A] CASES
1. Vijaysinh Chandhubha Jadeja v. State of Gujarat, Criminal Appeals No. 943 of
2005 with Nos. 974 of 2003 and 1809 of 2009.………………………………..…
2. Saiyad Mohd. Saiyad Umar Saiyad And Others v. State Of Gujarat, criminal
appeal No. 485 of 1995…………………………………………………………...

3.  Pritam Singh vs The State, 1950………………………………………………..

4. Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai (2005)……
5. Umesh Kumar vs State on 7 September, 2009, Criminal Jail Appeal No. 674 of
2005………………………………………………………………………………..
6. Darwinder Kaur vs State Of Punjab, CRM-M-8665 of 2018………………….

7. Leon Bernard vs Central Rep. By, CA NO.317 of 2001………………………

8. Madan Lal and Ors. v. State of Himachal Pradesh [(2003) 7 SCC 465]………
9. State of West Bengal vs Rakesh Singh @ Rakesh Kumar Singh, CrA 923 OF
2022……………………………………………………………………………
10. Laxman Bapu Sonar vs State Of Gujarat, 2004 CriLJ 2229…………………..
11. Sandeep Kumar vs Central Bureau Of Narcotics, CRL.M.A.17384/2017……

12. Tofan Singh vs State Of Tamil Nadu, SPECIAL LEAVE PETITION (CRL.) NO.
1202 OF 2017………………………………………………………………….

13. Union Of India vs Victor Nnamdi Okpo, Crl. Appeal No.617/2004; Md. Azad
Parvez vs Narcotic Control Bureau And State, 2007 (1) CHN 101………….
14. Pramod vs State Of Madhya Pradesh, Criminal Appeal No.5189/2020…….
15.  N. Suriyakala v A. Mohandoss & Ors (2007) ………………………………..

16. K. S. Puttaswamy v. Union of India (2017) 10 SCC…. ………………………

17. Union of India through the Narcotics Control Bureau, Lucknow v. Md. Nawaz
Khan (Criminal Appeal No. 1043 of 2021) ……………………………………

18. RAVINDER VS. NCT OF DELHI (STATE) [LAWS(DLH)-2014-3-17]……

19. State of Punjab v. Baldev Singh, (1999) 6 SCC 172; State of Kerala v. Rajesh
[AIR 2020 SC 721]
……………………………………………………………………………………
20. Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496…………...
21. Rhea Chakraborty v. The Union of India and Ors (Criminal Bail Application
(Stamp) No. 2386 of 2020) ………………………………………………………

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[B] STATUTES

1. INDIAN CONSTITUTION
2. NARCOTIC DRUGS & PSYCHOTROPIC SUBSTANCES ACT, 1985
3. CODE OF CRIMINAL PROCEDURE, 1973

[C] JOURNALS

1. Shukla, N., & Sangal, T. (2009). Generic drug industry in India: the counterfeit
spin.

[D] ARTICLES

1. Rajagopal, M. R. (2016). Access to palliative care: insights into ground realities

post-2014
2. amendment to NDPS Act. Indian Journal of Medical Ethics, 1(1), 25-30.
3. Mahato, T. K. (2020). Drug Abuse. NDPS Act 1985 & Drug Demand Reduction:
An Update.
4. IOSR Journal of Pharmacy and Biological Sciences, 15(5), 39-43.
2. MOHAPATRA, S. CURRENT STATUS OF THE NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT.
3. Bapaye, J. A., & Bapaye, H. A. (2021). Demographic factors influencing the
impact of
5. coronavirus-related misinformation on WhatsApp: Cross-sectional
questionnaire study. JMIR
6. public health and surveillance, 7(1), e19858.
4. Al Khaja, K. A., AlKhaja, A. K., & Sequeira, R. P. (2018). Drug information,
misinformation,
7. and disinformation on social media: a content analysis study. Journal of public
health policy,
8. 39(3), 343-357.
5. Wijnberg, D., & Le-Khac, N. A. (2021). Identifying interception possibilities for
WhatsApp
9. communication. Forensic Science International: Digital Investigation, 38,
301132.

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STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The Hon’ble SC of India is vested with the jurisdiction to hear the present matters under Art.
136 of the India Constitution which reads as follows:

“136. Special leave to appeal by the Supreme Court-

(1) Notwithstanding anything in this Chapter, the SC may, in its discretion, grant special
leave to appeal from any judgment, decree, determination, sentence or order in any cause or
matter passed or made by any court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed
Forces.”

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STATEMENT OF FACTS

STATEMENT OF FACTS

INTRODUCTION

India is a quasi-federal country with a parliamentary form of Govt which follows the
Common Law System & is known to have the bulkiest Constitution in the world. The
Narcotic Drugs & Psychotropic Substances Act, 1985 (NDPS Act) is an Act of the
Parliament of India that outlaws the production, manufacturing, cultivation, possession, sale,
purchase, transportation, storage, &/or use of any narcotic drug or psychotropic substance.
Currently, under Sec. 27 of the NDPS Act, possession of small quantities for personal
consumption of drugs is a punishable offence, & can attract a fine of ₹10,000 &
imprisonment of six months or both.

BACKGROUND

On 19 July 2019, 4 people, Tina Badani (Accused No. 1), Vedansh Rabbari (Accused No. 2),
Rudra Merchant (Accused No. 3), & Raunak Singh (aka “Rocky,” Accused No. 4) boarded a
luxurious cruise ship, “Phalange.” The Narcotics Control Bureau raided Phalange at 3:00 AM
on 22 July 2019 & recovered 5 grams of myrophine, 25 grams of opium, 2 grams of cocaine,
INR 2,50,000, 5 grams of metazocine from Tina Badani, 50 grams of charas from Vedansh
Rabbari, & 1 gram of hydromorphone from Rudra Merchant. Since the drugs were recovered
in bulk, it was assumed that they were not being used only for consumption but could also be
a part of an international drug racket. Furthermore, as per the media, the WhatsApp chats
showed a nexus between all four of the accused & Alex, an Italian drug dealer. The NCB
revealed to the media that Accused No. 1 assisted in the procurement & consumption of
contraband. She was accused of procuring charas & hydromorphone from Accused No. 2.
Moreover, there was proof showing that Accused No. 3 was messaging national & unknown
persons dealing in drugs & that Accused No. 4 had knowledge of the drug rave party
organised at the cruise.

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CURRENT SITUATION

The four accused were arrested under Sections 8 (c) r/w 20(b), 27, 28, 29, & 35 of
the Narcotic Drugs & Psychotropic Substances Act, 1985 (NDPS Act) & were brought in for
custodial interrogation up to 27 July 2019. Accused No. 1 (Tina Badani) applied for bail
on the grounds that she was only invited by a man named “Alex” & had nothing to do with
the offense. She said the party was already going on when the NCB raided the ship. Accused
No. 4 (Raunak Singh) applied for bail & asked the Mumbai HC to quash the proceedings
(including the FIR) & release him on bail till the final order was passed. The application for
bail was rejected by the HC of Bombay on the grounds that there were WhatsApp chats
linking Rocky to Alex & chats that may suggest drug trafficking. Then Accused No. 4
appealed to the SC to quash his FIR.  

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ISSUES RAISED

ISSUES RAISED

ISSUE 1
Whether the procedure leading to the arrest was valid

ISSUE 2
Whether the FIR should be quashed under Art. 136 of the Constitution 

ISSUE 3
Whether WhatsApp chats are an adequate reason for arresting the accused

ISSUE 4

Whether Accused 1 should be granted bail 

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SUMMARY OF ARGUMENTS

SUMMARYOF ARGUMENTS

ISSUE 1
Whether the procedure leading to the arrest was valid

It is humbly submitted before this Hon’ble SC that the procedure leading to the arrest was in
accordance with Chapter V of the NDPS Act. The respondents lack locus standi as the raid
was conducted in accordance with due procedure established under the law, & the drugs were
duly tested. The seizure of the ship, & interrogation of the four accused persons is lawful &
valid.

ISSUE 2
Whether the FIR should be quashed under Art. 136 of the Constitution 

It is humbly submitted before this Hon’ble SC that Art. 136 of the Constitution cannot be
invoked in this case since the charges against the four accused are valid. The four accused
were charged under Sections 8(c), 20(b), 27, 28, 29 & 35 of NDPS.

ISSUE 3
Whether WhatsApp chats are an adequate reason for arresting the accused

It is humbly submitted before this Hon’ble SC that the WhatsApp chats form an integral
piece of evidence for charging the four accused. The chats show intention, criminal
conspiracy & criminal culpability between Accused No. 4 & an international drug cartel.
ISSUE 4

Whether Accused 1 should be granted bail 

It is humbly submitted before this Hon’ble SC that Accused No. 1 is not eligible for bail since
she has played an active role in the crimes committed by the other three accused. Since she
has an active involvement, & a history in illicit drug activities, she is capable of indulging in
the same if she is released on bail.

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ARGUMENTS ADVANCED

ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE PROCEDURE LEADING TO THE ARREST WAS VALID.

I. It is humbly submitted before this Hon’ble SC that the procedure leading to the arrest was
valid. It is contended that the petitioners followed appropriate procedure, they tested the
narcotic substances, they conducted a lawful raid & interrogation & have arrested the accused
lawfully. The petitioners have satisfied the burden of evidentiary proof leading to the arrest. 

[I. A] THE PETITIONERS RAIDED THE SHIP LAWFULLY.

i. Acc. to Sec. 41 of NDPS Act, a metropolitan magistrate/ magistrate of first class/
magistrate of second class, having special permission from the State Government, is
required to issue a warrant for the arrest of any person who is accused of committing a
crime under NDPS. After the warrant has been issued, a competent officer is
authorised to raid, seize & arrest any person who is suspected to have committed a
crime under NDPS.1
ii. The NCB raided the ship on 22 July, 2019 under an officer who was authorised to do
so under NDPS. He ordered that the ship be seized & the accused be interrogated.
iii. The NCB officer acted under his jurisdiction & Sec. 41 of the NDPS while conducting
a raid on the ship. 

[I. B] THE PETITIONERS CONDUCTED A LAWFUL RAID & INTERROGATION. 

i. Sec. 54 of the NDPS reads that it is a valid presumption to make that unless the
contrary is proved, the accused has committed a crime under NDPS w.r.t. possessing
narcotic drugs, psychotropic or controlled substances, or opium poppy, cannabis, etc.2
ii. In accordance with Sec. 60 of the NDPS, all drugs, utensils & other evidentiary
articles must be confiscated, & the procedure for the same is given under Sec. 60 of
the NDPS.
_____________________

1
Vijaysinh Chandhubha Jadeja v. State of Gujarat, Criminal Appeals No. 943 of 2005 with Nos. 974 of 2003 and
1809 of 2009, decided on October 29, 2010
2
Saiyad Mohd. Saiyad Umar Saiyad And Others v. State Of Gujarat, criminal appeal No. 485 of 1995

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iii. It is humbly submitted before this Hon’ble SC that the petitioners followed
appropriate procedure by arresting the four accused on the grounds of presumed
possession, & lawfully confiscated all the evidentiary articles. 

[I. C] THE PETITIONERS HAVE ARESSTED THE ACCUSED LAWFULLY

i. In accordance with Sec. 51 of the NDPS, all provisions of the CrPC will apply to the
warrants, arrests, seizures & raids, only until repugnancy. 
ii. The officer is required to inform the arrested about his grounds for the arrest.3 Every
person arrested & Article seized must be forwarded to the Magistrate without
unnecessary delay by the officer. After the seizure, an inventory must be prepared by
the officer, which must entail all necessary details.4
iii. The officer who led the raid informed the four accused about their cause of arrest,
forwarded the four accused & seized articles to the magistrate & prepared an
inventory of all the items seized. Therefore, the officers conducted a lawful arrest. 

ISSUE 2: WHETHER THE FIR SHOULD BE QUASHED U/A 136 OF THE

CONSTITUTION.
II. It was held that the SC should not interfere with the decisions of the HC unless exceptional
circumstances exist.5 It is humbly submitted before this Hon’ble Court that this Hon’ble
Court must exercise its powers under Article 136 only in exceptional circumstances, when a
question of law of public importance arises.6 Since there is no question of law of public
importance in this case, Article 136 cannot apply. 
[II. A] THE FIR IS VALID & LAWFUL
i. After the arrest has been made, the burden is on the officer to draft an FIR which
officially charges and states the reason for charging the accused. 
ii. The sections under which the four accused have been charged are: 8(c) r/w 20(b), 27,
28, 29 and 35 of NDPS. 

_____________________
3
Section 51, NDPS, 1985
4
Section 52(2), NDPS, 1985
5
Pritam Singh vs The State, 1950
6
Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai (2005)

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iii. Section 8(c) corresponds to the prohibition of certain offences; section 27 talks about
the punishment for consumption of any narcotic or psychotropic substance; section 28
talks about punishing a person for attempting to commit an offence under NDPS;
section 29 deals with abetment and criminal conspiracy; and section 35 deals with
presumption of a culpable mental state. 
[II. B] VALIDITY OF SEC. 8(C)

i. Section 8(c) reads that: “no person shall produce, manufacture, possess, sell, purchase,
transport, warehouse, use, consume, import inter-State, export inter-State, import into
India, export from India or tranship any narcotic drug or psychotropic substance,
except for medical purpose…”.7
ii. Section 54 of the NDPS reads that it is a valid presumption to make that unless the
contrary is proved, the accused has committed a crime under NDPS w.r.t. possessing
narcotic drugs, psychotropic or controlled substances, or opium poppy, cannabis, etc.8
iii. It is humbly submitted to this Hon’ble Supreme Court that all four accused were in
active possession of the retrieved narcotic substances. They were also actively
transporting the substances, which is a crime under Section 8(c).9
iv. The burden of proof is on the four accused to prove that they were not in active and
conscious possession of the retrieved narcotic substances. Until then, they will be
guilty of possessing the same.10

[II. C] VALIDITY OF SEC. 27

i. Section 27 of the NDPS deals with punishing those who have consumed narcotic or
psychotropic substances. If they have consumed cocaine, morphine, diacetylmorphine
or any other narcotic drug or psychotropic substances, the person is subjected to
rigorous imprisonment for a year, or with a fine up to INR 20,000, or both.11
ii. If the drug consumed is not what is mentioned under Section 27(a), the person is
subjected to rigorous imprisonment up to six months, or a fine up to INR 10,000, or
both. 
_____________________

78
Umesh Kumar vs State on 7 September, 2009, Criminal Jail Appeal No. 674 of 2005
8
Darwinder Kaur vs State Of Punjab, CRM-M-8665 of 2018
 9Leon Bernard vs Central Rep. By, CRIMINAL APPEAL NO.317 of 2001
10
 Madan Lal and Ors. v. State of Himachal Pradesh [(2003) 7 SCC 465]
11
State of West Bengal vs Rakesh Singh @ Rakesh Kumar Singh, CrA 923 OF 2022

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iii. If a person finances (directly or indirectly) any of the crimes under NDPS, they shall
be subject to rigorous imprisonment for ten years, or a fine which shall not be less
than 1 lakh, or both. 12
iv. The petitioners have recovered various narcotic drugs and psychotropic substances
from the four accused. An ordinary man’s prudence would make him believe that a
person, who was previously involved with drug trafficking, would be likely to
consume them. 
v. Therefore, it is submitted to this Hon’ble Court that the four accused are guilty of
consuming narcotic drugs and psychotropic substances, and hence, are subject to
imprisonment and fines under Section 27 of NDPS.

[II. D] VALIDITY OF SEC. 28 

i. Section 28 of NDPS talks about punishments for attempts to commit offences
mentioned in the Act.
ii. Since the NCB recovered narcotic drugs and psychotropic substances from the four
accused, they could be involved with its production and/or manufacture and/or
possession and/or sale and/or purchase and/or transport and/or warehouse and/or use
and/or consumption and/or import inter-State and/or export inter-State and/or import
into India and/or export from India or tranship.13
iii. These various offences lead the petitioners to believe that since the number of
offences committed by each of the accused is uncertain, their involvement may not be
absolute, but a mere attempt. 14
iv. Although it is an attempt, and not a complete commitment of an offence, a culpable
mind must be prosecuted fairly.
v. Therefore, it is submitted to this Hon’ble Court that all four accused be prosecuted
under Section 28 of NDPS.

_____________________

12
 Laxman Bapu Sonar vs State Of Gujarat, 2004 CriLJ 2229
13
Sandeep Kumar vs Central Bureau Of Narcotics, CRL.M.A.17384/2017
14
Tofan Singh vs State Of Tamil Nadu, SPECIAL LEAVE PETITION (CRL.) NO. 1202 OF 2017

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[II. E] VALIDITY OF SEC. 29

i. Section 29 of the NDPS describes punishments for abetment and criminal conspiracy
with regards to narcotic drugs and psychotropic substances. 15
ii. As three out of four of the accused were found with contraband, and accused number
four is linked to international drug cartels, the petitioners believe that all four accused
acted in-hand with each other, and hence, conspired. 
iii. Since they conspired with each other to take part in crimes under NDPS, it becomes
obvious that they have abetted each other’s crimes. 
iv. Therefore, it is submitted to this Hon’ble Court that all four accused be prosecuted
under Section 29 of NDPS.
[II. F] VALIDITY OF SEC. 35
i. Section 35 talks about the presumption of a culpable mental state. According to the
explanation in this section, a culpable mental state includes intention, motive,
knowledge of a fact and belief in, or reason to believe a fact.16
ii. Culpable mental state is a simple English term for the Latin term “mens rea”, meaning
guilty mind. 
iii. Since all the four were arrested under NDPS, it is evident that they have a culpable
mind. It goes without saying that the four accused acted intentionally.
iv. Therefore, it is submitted to this Hon’ble Court that all four accused be prosecuted
under Section 35 of NDPS.
v. It does not confer a right to appeal on a party to the litigation; it only confers a
discretionary power of widest amplitude on the Supreme Court to be exercised for
satisfying the demands of justice. Therefore, the respondents cannot, under the garb of
Article 136, seek a reduced sentence and escape from the crutches of law. 
vi. Hence, it is humbly submitted under this Hon’ble Court that the SLP under Article
136 should not be granted. 

_____________________

15
Union Of India vs Victor Nnamdi Okpo, Crl. Appeal No.617/2004; Md. Azad Parvez vs Narcotic Control
Bureau And State, 2007 (1) CHN 101
16
Pramod vs State Of Madhya Pradesh, Criminal Appeal No.5189/2020

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ISSUE 3: WHETHER WHATSAPP CHATS ARE AN ADEQUATE REASON FOR

ARRESTING THE ACCUSED.

III. It is submitted before this Hon’ble Court that one of the key pieces of evidence in
prosecuting the four accused is their incriminating messages that they have shared on
WhatsApp. It is contended that these messages be presented as an indicator of their guilty
mind and actions. 

[III. A] THE WHATSAPP CHATS CAN BE USED AS EVIDENCE IN COURT.

i. The Supreme Court, in Ambalal Sarabhai Enterprise Ltd versus KS Infraspace LLP
Limited and Anr.1, ruled that “the WhatsApp messages which are virtual verbal
communications are a matter of evidence” subject to “cumulative deciphering” of the
content contained in the messages. Therefore, as long as the context is set correctly,
WhatsApp chats are admissible. 
ii. Before 2018, a certificate was required to sanctify every implicated allegation through
WhatsApp. However, after Shafhi Mohammed v. State of Himachal Pradesh2, this
Hon’ble court relaxed the mandatory clause added in previous judgements (Anvar
P.V. v. P.K. Baseer & Ors3) and stated that any electronic record produced as
evidence without following the condition mentioned in Section 65B(4) (regarding the
certificate production) can be relied upon.
iii. Messages shared through WhatsApp bring out a nexus between all the four accused
and national and unknown persons dealing in drugs. The quantity of drugs spoken
about, in these chats, can be linked to a bulk quantity which can be a part of an
international drug cartel. This directly ties them to a drug cartel. 
iv. Messages shared through WhatsApp also bring out a nexus between accused number
four and Alex, implicating accused number four with asking Alex for “cookie dough”.
It is the petitioner’s learned opinion that this “cookie dough” means marijuana, as
suggested by colloquial lingo. 
v. Since these messages show the four accused’s links to a drug conspiracy, they form a
key part of the evidence against them, and hence, it is submitted to this Hon’ble court
that they be admissible. 
_____________________

N. Suriyakala v A. Mohandoss & Ors (2007)

State of Punjab v. Baldev Singh, (1999) 6 SCC 172; State of Kerala v. Rajesh [AIR 2020 SC 721
 Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496
Criminal Bail Application (Stamp) No. 2386 of 2020

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[III. B] TAPPING INTO THE ACCUSED’S WHATSAPP CHATS DOES NOT BREACH
THEIR PRIVACY.
i. This Hon’ble Supreme Court, in K. S. Puttaswamy v. Union of India4, said that the
right to privacy, despite being a fundamental right, is not absolute. In the same
judgement, it was also given that the right to privacy is subject to certain reasonable
restrictions, and a right to privacy can be infringed only through substantive due
process in a fair, just and reasonable manner in order to fulfil a compelling State
interest.
ii. Although the messages sent via WhatsApp constitute privileged communications, the
same can be restricted when the action must be proportionate to the need of
interference, and is accompanied by procedural guarantees against the abuse of these
restrictions.
iii. Therefore, it is humbly submitted before this Hon’ble Court that tapping into the
accused’s WhatsApp chats does not breach their privacy. 

ISSUE 4: WHETHER ACCUSED NO. 1 SGHOULD BE GRANTED BAIL.

IV. It is contended before this Hon’ble Court that accused one must not be granted bail on the
grounds that she has actively taken part in criminal activities under NDPS, and she is capable
of continuing illegal activities is granted bail. In Union of India through the Narcotics
Control Bureau, Lucknow v. Md. Nawaz Khan5, this Hon’ble Supreme Court observed that
the bail to an accused under the NDPS Act could be granted only if there were reasonable
grounds to believe that the accused was innocent and that he was unlikely to commit any
offense while being released on bail.
[IV. A] ACCUSED NO. 1 IS GUILTY OF MULTIPLE SECTIONS UNDER THE NDPS
ACT, 1985
i. Section 54 of the NDPS reads that it is a valid presumption to make that unless the
contrary is proved, the accused has committed a crime under NDPS w.r.t. possessing
narcotic drugs, psychotropic or controlled substances, or opium poppy, cannabis, etc. 
ii. It is humbly submitted before this Hon’ble Court that accused one was in possession
of five grams of metazocine. She was also found in the room where the petitioners
retrieved small packets of hash. 
iii. The burden of proof lies on accused one, to prove that she was not in active
possession of narcotic drugs and psychotropic substances. 

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iv. The petitioners have recovered metazocine and hash from the accused one. An
ordinary man’s prudence would make him believe that a person, who was previously
involved with drug trafficking, would be likely to consume them. 
v. Therefore, it is submitted to this Hon’ble Court that the accused one is guilty of
consuming narcotic drugs and psychotropic substances, and hence, are subject to
imprisonment and fines under Section 27 of NDPS.
vi. Since she was found in active possession of drugs, it can be safely concluded that she
possesses a culpable state of mind, has conspired and abetted others’ criminal
activities and may continue to commit illegal activities if granted bail.
vii. Therefore, it is humbly submitted before this Hon’ble Court to deny bail to Accused
No. 1. 

[IV. B] ACCUSED NO. 1 DOES NOT MEET THE STANDARDS FOR GRANTING BAIL
i. Under Section 37 of NDPS, a person can be released on bail unless the offences come
under Sections 19, 24, 27A or possess drugs in a commercial quantity. Along with
this, the public prosecutor must be given a chance to oppose this application, and the
court has reasonable proof to believe that the person, when on bail, will not commit a
crime. These clauses are read with the CrPC.
ii. Bail can also be granted where there was a reasonable possibility of the acquittal of
the accused. However, the accused one has been charged under a culpable mental
state and criminal culpability. This shows that when on bail, she is likely to continue
illegal activities. There is no evidence to say that she will not indulge in criminal
activities. 
iii. The burden is on Accused No. 1 to prove that she will not commit any crimes under
NDPS when released on bail.
iv. Although the respondents might contend that since she possessed only a small
quantity of narcotic substances, bail must be granted. However, this ludicrous
argument has been struck down by the Supreme Court in Rhea Chakraborty v. The
Union of India and Ors26.
v. Therefore, in the interest of protecting the law and keeping the society and her safe, it
is humble submitted before this Hon’ble Court that she must not be granted bail. 

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 ~ 6th AUMP National Virtual Moot Court Competition, 2022~
Memorial on behalf of Petitioner

PRAYER

PRAYER

Therefore, in the light of the issues preceded by the Hon’ble Court, arguments advanced &
authorities cited, the Counsel for the Petitioner most humbly & respectfully pray that this
Hon’ble Court may be pleased to;

1. Uphold the validity of the raid & the arrest as it was in accordance with Chapter V of
the NDPS Act.

2. Dismiss the SLP invoked under Article 136 of the Indian Constitution.

3. Admit the WhatsApp chats as evidence.

4. Dismiss Accused No. 1’s bail plea.

AND/OR

Pass any other relief that this Hon’ble Court may be pleased to grant in the interest of justice,
equity & good conscience.

& for this act of kindness, the petitioner shall forever be duty bound All of which is most
respectfully submitted.

Respectfully submitted

Counsel on behalf of the Petitioner

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