8th NATIONAL MOOT COURT

COMPETITION, 2021 T-

26

BEFORE THE HON’BLE

SUPREME COURT OF

INDIANA

[FILED UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIANA]

DIZER PETITIONER

VS

THE UNION GOVERNMENT

OF INDIANA RESPONDENT

…………………………………………………………………………

Memorial on behalf of the RESPONDENT

……………………………………………………………....................

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TABLE OF CONTENTS

CONTENTS PAGE NO.

1) LIST OF ABREVIATIONS …………………………………………. 3

2) INDEX OF AUTHORITIES ………………………………………… 4

3) STATEMENT OF JURISDICTION ………………………………… 6

4) STATEMENT OF FACTS …………………………………………… 7

5) STATEMENT OF ISSUES ………………………………………….. 11

6) SUMMARY OF ARGUMENTS ……………………………………... 12

7) ARGUMENTS ADVANCED ………………………………………... 13

8) PRAYER ……………………………………………………………… 19

9) ANNEXURE ………………………………………………………….. 20

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LIST OF ABBREVIATIONS

A.I.R ALL INDIA REPORTER

Anr ANOTHER

Art. ARTICLE

Ed EDITION

e.g THAT IS

HC HIGH COURT

Hon’ble HONOURABLE

I.L.R INDIAN LAW REPORTER

LR LAW REPORTER

Ors. OTHERS

P. PAGE

SC SUPREME COURT

SCC SUPREME COURT CASES

SCWR SUPREME COURT WEEKLY REPORT

UOI UNION OF INDIA

Viz. NAMELY

& AND

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INDEX OF AUTHORITIES

STATUTES

1. The Constitution of India.

2. The Patent Act, 1970.
3. The Companies Act, 2013.
4. General Clauses Act, 1897.
BOOKS
1. Constitutional Law of India, Durga Das Basu, Lexis Nexis, 8th Edition, 2008.
2. Constitution of India, V.N.Shukla, Eastern Book Company, Twelfth
Edition, 2013.
3. Constitutional Law of India, J.N. Pandey, Central Law Agency, Fifty
Seventh Edition, 2020
4. Constitutional Law of India, Dr. Narendra Kumar, Allahabad Law Agency,
Ninth Edition, 2015
5. Indian Constitutional Law, M.P.Jain, LexisNexis, Eighth Edition, 2020
6. World Trade Law, Simon Lester and Bryan Mercurio with Arwel Davies and
Kara Leither, Universal Law Publishing Co. First Indian Reprint 2010
7. Intellectual Property Law, P. Narayan, Eastern Law House, Third Edition, 2018.
8. Law Relating to Intellectual Property Dr. BL Wadehra, Fifth Edition, 2019.
9. Intellectual Property Rights and the Law, Dr. G.B. Reddy, Gogia Law Agency, 9th
Edition, 2012.
10. Company Law, Avtar Singh, Eastern Book Company, Fifteenth Edition, 2013.
CASE LAWS
1. Manish Goel v. Rohini Goel, AIR 2010 SC 1099
2. Nizam & Anr. V. State of Rajasthan, 2016/1SCC 550 : AIR 2015
SC 3430
3. Pritam Singh V. The State, AIR 1950 SC 169 : 1950 SCR 453
4. Municipal corporation of the city of Ahmedabad v. Jan
Mohammed Usmanbhai, 1986 AIR 1205, 1986 SCR (2) 700

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WEBSITES
1. www.indiankanoon.org
2. www.legalblog.in
3. www.casemine.com
4. www.myadva.in
5. www.mondaq.com
6. www.lawyersclubindia.com
7. www.ijtr.nic.in
8. www.latestlaws.com
9. www.livelaw.in
10. www.zegal.in
11. www.sclt.in
12. www.legalcrystal.com
13. www.the-laws.com
14. www.lawyerservices.com

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Indiana has jurisdiction to hear the stand petition under
Article 136 (1) of the Constitution of Indiana.

Article 136 provides as :-

Special leave to appeal by the Supreme Court –

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in it’s discretion,
grant special leave to appeal from any judgement, decree, determination, sentence
or order in any cause or matter passed or made 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 constitute by or under any law
relating to Armed Forces.

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STATEMENT OF FACTS

1. Post gaining Independence team the Nitishers, the state of Indiana which is a
Sovereign, Democratic, Republic country situated in the South-Eastern part of
Masia, laid special emphasis on fundamental rights at the citizens by the drafters of
the Constitution of Indiana. The DPSP, enrished in part IV of the Constitution of
Indiana reflect that Indiana is a welfare state and in furtherance thereof the
Government of Indiana has launched several programmes pertaining to health, food
society, health insurances etc.
2. In the Muruguay round of GATT, the Agreement on TRIPS whose purpose was to
establish, parity between the rules/states governing the intellectual property rights
in the member countries of the WTO, was negotiated.
3. In 2001, the Doha Declaration on the TRIPS Agreement and Public Health was
adopted by the WTO Ministerial Conference at 2001. It provided for flexibility to
the members of the TRIPS for imposing certain restriction on the patent rights to
achieve better access to health facilities.
4. The TRIPS Agreement does not and should not prevent members from taking
measures to protect public health. Accordingly, while reiterating our commitment
to the TRIPS Agreement, we affirm that the Agreement can and should be
interpreted and implemented in a manner supportive of WTO members right to
protect public health and in particular, to promote access to medicines for all.
5. Flexibilities of the TRIPS Agreement include:
 In applying the customary rules of interpretation of public international law,
each provision of the TRIPS Agreement shall be read in the light of the
object and purpose of the Agreement as expressed, in particular, in it’s
objectives ad principles.
 Each member has the right to grant compulsory licenses and the freedom
to determine the ground upon which such licenses are granted.
 Each member has the right to determine what constitutes a national
emergency or other circumstances of extreme urgency, it being understood
that public health crisis, including those relating to HIV/AIDS, tuberculosis,
malaria and other epidemics, can represent a national emergency or other
circumstances of extreme urgency.

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 The effect of the provisions in the TRIPS Agreement that are relevant to the
exhaustion of Intellectual property rights is to leave each Member free to
establish it’s own regime for such exhaustion without challenge, subject to
the MFN and national treatment provisions of Article 3 and 4.
6. As the WTO members have insufficient or no manufacturing capabilities in the
pharmaceutical sector could face difficulties in making effective use of
compulsory licensing under TRIPS Agreement, it is instructed the Council for
TRIPS to find on expeditious solution to this General Council before the end of
2002.
7. In the year of 2017, Alliance Group which is one of the largest corporate
conglomerates based in the state at Indiana, introduced a proposal for setting a
Vaccine Research and Manufacturing Institute before the Ministry of Health
and Family welfare. Government of Indiana.
8. After several rounds of discussions deliberation it was mutually agreed that the
Alliance Group would set up the institute in partnership with the Govt. Of Indiana
whereby, the Govt. Would invest 50% of the total proposal the VERUM
INSTITUTE was inaugurated by the Hon'ble Prime Minister of Indiana in 2019 and
started manufacturing and supplying vaccines to the Central and State Govt. of
marginal rates.
9. Towards the end of 2019 a total virus named Mortal virus Aka Movid -19 spread
throughout the world to an extent in no time from the province of Goohan in the
State of Myna where the WHO declared it as a pandemic.
10. In the month of March, 2020, the state of Indiana was hit by the wreath of the
Movid- 19 pandemic resulting into a nationwide lockdown. Thousands of people
died and many of them lost their source of livelihood.
11. Subsequently, the VI in collaboration with the Boxword University started its
research and development towards developing a low price vaccine for the state of
Indiana and by the end of 2030, it also started it's testing by the name of
MOVIDSHIELD.
12. After the successful trials of MOVIDSHIELD VACCINE of VI in 2020, the govt.
Of Indiana launched a state sponsored vaccination programme for the senior citizens
at aged between 45-60 MOVIDSHIELD was priced at INR 450 per dose
13. In September 2020 , DIZER a pharmaceutical company based in the joint states of
Camaria , applied for the patent of its vaccine- MOVAXIN and was granted patent
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the authorities after following the due process of low and was period at INR 1000 per
dose.
14. Towards the end of March 2021, Indiana becomes the epicenter of Movid-19
pandemic as it hit by the second wave. Then the Government of Indiana decided to
expand the vaccination programme to all the citizens above 18 years of age but the
availability of the vaccine by VI was limited and the govt. was facing backlash
from the public at large.
15. In one petition bearing PIL NO. 2011 / 2021, Johan v. Union at Indiana and Ors. ,
The Hon'ble Supreme Court of Indiana vide it’s order dated 11.04.2021, Directed the
Health Commission of the Union of Indiana to take immediate measures to enhance
availability of vaccines.
16. On 16.04.2021, the Union of Indiana made an amendment in Section 100 of
the Patent Act, whereby adding sub-section 1A:
“1A- Notwithstanding anything contained in this Act, the Central Government or any
official authorized in writing by it shall have the right to use or license the use of any
such patent that has been granted under this Act, subject to the payment of reasonable
fee or profit.
Provided that, the Government may also share the know-how, if the patented
product is to be used for public welfare.
Provided further that, the patent may be used or licensed without the prior permission
of the patentee, after giving justification for the same.”
17. Thereafter on 25.04.2021, the Health Commissioner issued a letter to the
management of DIZER, informing them that the Government had decided to use and
license MOVAXIN to the local vaccine manufacturers in India, for the purpose of
enhancing the vaccine production in India. It was also stated that an amount of INR
450 shall be paid to DIZER for every vaccine manufactured by thr State or it’s
agencies/licenses.
18. On 27.04.2021 , the Ministry of Health and Family Welfare responded that it was
categorically mentioned that the letter dated 24.04.2021 had been issued in
compliance of the law in force and that the representation on DIZER had no force
in law.
19. That aggrieved by the letter dated 27.04.2021 DIZER preferred a writ petition
bearing no. 1120/ 2021, before the Hon'ble High Court of Delphi challenging the
amendment dated 16.04.2021 and the letter dated 25.04.2021. But the High Court of
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its order dated 10.05.2021 , partially dismissed the petition on the ground that the
Union Government was justified in its patent held by DIZER, the High Court also
Directed the Union Government to reconsider the royalty determined for the use of
the patent by Government of Alliance.

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STATEMENT OF ISSUES

I.

Whether the Special Leave Petition filed by the Petitioner is maintainable or not?

II.

Whether the Amendment dated 16.04.2021 is valid in terms of the TRIPS Agreement or not?

III.

Whether the letter dated 25.04.2021 is violative of the provisions of Part III of
the Constitution of Indiana?

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SUMMARY OF ARGUMENTS

I. Whether the Special Leave Petition filed by the Petitioner is maintainable or not?

The petition is not maintainable as there is no proper grounds for the application of such
petition. The TRIPS Agreement provide some provisions to take appropriate measures to
protect public health to it’s members. Also all the measures taken by the Government are
consistent with the law. Hence, no question arises related to the grounds of such petition.

II. Whether the Amendment dated 16.04.2021 is valid in terms of the TRIPS
Agreement or not?

The amendment dated 16.04.2021 is valid in terms of the TRIPS Agreement. As the
agreement did not prevent to it’s member to take appropriate measures to protect public
health and to promote access to medicines for all. The agreement also provide the freedom to
determine the grounds upon licensing and to determine the emergencies and epidemics
situation. Furthermore, TRIPS Agreement gave provisions to the exhaustion of intellectual
property rights to leave each member free to establish it’s own regime.

III. Whether the letter dated 25.04.2021 is violative of the provisions of Part III of
the Constitution of Indiana?

The letter dated 25.04.2021 is not violative of the Fundamental Rights under the Constitution
of Indiana. As the Constitution of Indiana make some provisions of reasonable restrictions.

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ARGUMENTS ADVANCED

I. Whether the Special Leave Petition filed by the Petitioner is maintainable or not?

The petition is not maintainable before the Hon’ble Supreme Court of Indiana.

1.1. In the case of Manish Goel v. Rohini Goel1, the Supreme Court discussed the grounds
of Special Leave to Appeal. They are as follows:
 There should be a question of law of general public importance
 Grave injustice
 Decision which shocks the conscience of the Court.
The Supreme Court held as there is no vested right of a party to approach the
Supreme Court for the exercise of such a vast discretion however such a cause can
be resorted to when the Supreme Court feels that it is so warranted to eradicate
injustice. More so there should be a question of law of general public importance
or a decision which shocks the conscience of the court are some of the prime
requisites for grant of Special Leave.
So, in this case there is no question of law of general importance. Also, there is no form
of grave injustice which has been done. Furthermore, there is not kind of decision which
shocks the conscience of the court.
1.2. In case of Nizam & Anr. V. State of Rajasthan2, it is held that the Supreme Court will
not interfere in exercise of it’s power under Article 136 with concurrent findings
recorded by Courts below. Supreme Court will only interfere when necessary findings of
below Courts are unsupportable from evidence on record, resulting in miscarriage of
Justice.
1.3. Furthermore it was held in case of Pritam Singh V. The State3, that the Supreme Court
will not grant Special Leave unless it is shown that an exceptional special
circumstances exist that substantial and grave injustice has been done and no sufficient
ground in this case. Thus, this petition is not maintainable.

II. Whether the Amendment dated 16.04.2021 is valid in terms of the TRIPS
Agreement or not?

The amendment dated 16.04.2021 is valid in terms of the TRIPS Agreement.

1
AIR 2010 SC 1099
2
2016/1SCC 550 : AIR 2015 SC 3430
3
AIR 1950 SC 169 : 1950 SCR 453
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2.1. Right to Protect Public Health:- In 2001, Doha Declaration on the TRIPS Agreement
and Public Health was adopted by WTO Ministerial Conference of 2001. In Doha
Declaration some provisions are very clearly stated that “ The TRIPS Agreement does not
and should not prevent members from taking measures to protect public health”. The
TRIPS Agreement can and should be interpreted and implemented in a manner supportive
of WTO member’s right to protect Public Health and to promote access to medicines for all.

In this connection the Union Government of Indiana has the right to protect the
Public Health in this pandemic situation. Government just took a step to rehabilitate the
destruction MOVID-19.

2.2.Compliance with the object of TRIPS Agreement:- TRIPS Agreement has been
made with some objectives and one of the important object of TRIPS Agreement is to use
the technological knowledge for social welfare.

2.2.1. Using technological knowledge for Social Welfare:- The state of

Indiana is a Sovereign, Democratic, Republic country. The Directive Principles
of State Policy enriched in Part IV of the Constitution of Indiana which reflect
that Indiana is a welfare state. Being a welfare state, the Government of Indiana
has launched several programmes pertaining to health, food safety, health
insurance, etc.
In the month of March 2020, the State of Indiana was hit by the wrath of the
MOVID-19 Pandemic. As the result of this pandemic, thousands of people died
and many lost their source of livelihood. Towards the end of March 2021,
Indiana was hit by second wave of MOVID -19. This pandemic caused numerous
deaths and casualties. Indiana become the epicenter of the MOVID-19 pandemic
and the medical infrastructure. Indiana was on the verge of collapse. Meanwhile,
the number of MOVISHIELD vaccines supplied by the VERUM INSTITUTE
were limited and the Government was facing backlash from the public at large.
Many Public Interest Litigations were filed. After this, in direction of the Health
Commissioner, the Union of Indiana took immediate measures to enhance the
availability to the vaccines in Indiana. So, for the welfare of general public, the
Government had decided to use and license MOVAXIN and grant the license to
VERUM INSTITUTE for enhancing the vaccination programme. Hence, the

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Government of Indiana has been complied to the object of using technological
knowledge for social welfare.

2.3. Freedom to grant license and determine the grounds:- In 2001, Doha Declaration on
the TRIPS Agreement and Public Health was adopted by the WTO Ministerial Conference
of 2001. It provided for flexibility to the members of TRIPS for imposing certain restrictions
on the Patent rights to achieve better access to Health Facilities. There are one flexibility
which states that each member has the right to grant compulsory licenses and the freedom to
determine the grounds upon which such licenses are granted.

Thus the Indiana’s Government can grant license to the VERUM INSTITUTE.

2.4. Right to Determine Emergencies:- Another flexibility of Doha Declaration is that

each member has the right to determine what constitutes a national emergency or other
circumstances of extreme urgency it being understood that Public Health Crisis including
those relating to HIV/AIDS, Tuberculosis, Malaria and other epidemics can represent a
national emergency or other circumstances of extreme urgency.

Towards the end of 2019, the news of spread of fatal virus named Mortal Virus Aka
MOVID 19 spread from the province of Goohan in the State of Myna. As per early reports,
MOVID 19 was transmitted to humans from bats. Within no time, the virus spread
throughout the world to an extent where the World Health Organisation (WHO) declared it
as Pandemic.

After the first wave, towards the end of March 2021, the state of Indiana was hit by
second wave of MOVID 19 Pandemic causing numerous death and casualties. Indiana
became the epidemic of the MOVID 19 Pandemic and the medical infrastructure of Indiana
was on the verge of collapse.

Meanwhile the Government of Indiana decided to expand it’s vaccination but the
availability of vaccine is not enough for all of the citizens. The Government was facing
backlash from the public, many public filed Public Interest Litigation (PIL) before the
Hon’ble Supreme Court of Indiana and various High Courts in Indiana. Whereby the question
pertaining to the slow rate of vaccination and measures to control MOVID 19 were raised.

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In one such petition bearing PIL NO. 2011/2021, Johan v. Union of Indiana and
Ors., the Hon’ble Court of Indiana vide it’s order dated 11.04.2021 directed the Health
Commissioner of Union of Indiana to take immediate measures to enhance the availability
of vaccines in Indiana.

To this effect Union of Indiana for control the pandemic situations and enhancing
the vaccination programme, made an amendment in Section 100 of the Patent Act by adding
Sub-Section 1A.

2.5. Exhaustion:- ‘Exhaustion’ of IPRs refers to the principle that- ‘once the owner of an
intellectual property right has placed a product covered by that right into the
marketplace. The right to control how the product is resold within that internal
market is lost.’

Article 6 provides that the TRIPS Agreement allows members to adopt their own
policies and laws relating to national or international exhaustion of IPR in Doha Declaration.
It is clearly stated that the effect of provisions in the TRIPS Agreement that are relevant to
the exhaustion of intellectual property rights is to leave each member to establish it’s own
regime for such exhaustion without challenging subject to the MFN and national
treatment provision of Article 3 and 4.

Based on their rules it is clear that members can choose to allow importation of any and all
items. And here the Union Government of Indiana being a welfare state tries to develop it’s
infrastructure and allow the importation.

III. Whether the letter dated 25.04.2021 is violative of the provisions of Part III of
the Constitution of Indiana?

The letter dated 25.04.2021 is not violative of the provisions of Part III of the Constitution of
Indiana. Some reasons are discussed below:

3.1. Power to make laws of State:- Article 19 (6) of the Indiana’s Constitution
imposed reasonable restriction on right to freedom to practice any profession, or to carry
on any occupation, trade or business.

Article 19 (6) states that-

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“Nothing 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 the general public, reasonable restriction on the exercise of the right
conferred by the said sub-clause, and, in particular, [nothing in the said sub-clause
shall affect the operation of any existing law in so far as it related to, or prevent the
State from making any law relating to,-

(i) the professional or technical qualifications necessary for

practising any profession or carrying on any occupation, trade or
business, war
(ii) the carrying on by the State, or by a corporation owned or
controlled by the State, of any trade, business, industry or
service, whether to the exclusion, complete or partial, of citizens
or otherwise].”

Here, The Health Commission of Indiana’s Government had been issued the letter
dated 25.04.2021 in compliance of the law in force. Hence it is proved that nothing is
contrary to the Constitution.

3.2. Laws in the interest of general public:- The State can make any law imposing
reasonable restriction under Clause (6) of Article 19 on the right to freedom of
Profession, Occupation, Trade or Business in the interest of general public.

In the case of Municipal corporation of the city of Ahmedabad v. Jan

Mohammed Usmanbhai4, the Court has held that the term ‘in the interest of general public’,
the Article 19 (6) is of wide import comprehending public order, public health, public
security, moral economic welfare of the community and the objects mentioned in Part IV of
the Constitution.

In this case, the whole world is going through with the pandemic. As the result of first
wave of MOVID-19 in Indiana, thousands of people died and many lost their source of
livelihood. After the second wave, the State of Indiana become the epicentre of the MOVID-
19 pandemic as it causes numerous deaths and casualties also the pandemic is the reason of
medical infrastructure collapse. Hence, it is the subject of interest of general public.

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4
1986 AIR 1205, 1986 SCR (2) 700

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The Government of Indiana was facing backlash from the public at large for not
providing adequate number of vaccines. Several Public Interest Litigation Petitions (PILs)
were filed before the Hon’ble Supreme Court of Indiana and various states of Indiana’a High
Courts, where the questions arising relating to the slow rate of vaccination and the measures
to control the Pandemic situation. To control this distributions epidemic situation and only
for the public health Government of Indiana imposed some reasonable restrictions. Here is
the only motive i.e. public welfare.

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PRAYER

In the last light of the facts of the cases , issues raised and argument advanced reason given
and authorities cited, this Hon’ble Supreme Court be pleased,

To Reject

The instant petition filed by the petitioner.

To Direct

That the letter dated on 16.04.2021 is valid in terms of the TRIPS Agreement.

To Declare

The letter dated 25.04.2021 is constitutionally valid and it is not violative of the
provisions of Part III of the Constitution of Indiana.

And to grant any other relief/s that this Hon’ble Court may be pleased in
the interest of Justice, equity and good conscience.

All of which is respectfully submitted.

Counsel for the Respondent

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 Manish Goel vs Rohini Goel on 5 February, 2010

Supreme Court of India

Manish Goel vs Rohini Goel on 5 February, 2010
Bench: Aftab Alam, B.S. Chauhan
MANISH GOEL
v.
ROHINI GOEL
(Special Leave Petition (C) No. 2954 of 2010)
FEBRUARY 5, 2010
[Aftab Alam and Dr. B.S. Chauhan, JJ.]
2010 (2) SCR 414

The Order of the Court was delivered by

ORDER

DR. B.S. CHAUHAN, J. 1. This case reveals a very sorry state of affairs that the parties, merely being
highly qualified, have claimed even to be higher and above the law, and have a vested right to use,
misuse and abuse the process of the Court. Petitioner, the husband, possesses the qualifications of
CA, CS and ICWA, while the proforma respondent-wife is a Doctor (M.D., Radio-Diagnosis) by
profession. The parties got married on 23rd July, 2008 in Delhi. Their marriage ran into rough
weather and relations between them became strained immediately after the marriage and they are
living separately since 24.10.2008. Petitioner-husband filed a Matrimonial Case under Section 12 of
the Hindu Marriage Act, 1955 (hereinafter called as "the Act") for annulment of marriage before a
competent Court at Gurgaon. The respondent-wife, Smt. Rohini Goel filed a petition under Section
12 r/w Section 23 of the Domestic Violence Act, 2005 before the competent Court at Delhi. An FIR
was also lodged by her against petitioner-husband and his family members under Sections 498-A,
406 and 34 of Indian Penal Code, 1860 at PS Janakpuri, New Delhi.

2. It is stated at the Bar that by persuasion of the family members and friends, the parties entered
into a compromise and prepared a Memorandum of Understanding dated 13.11.2009 in the
proceedings pending before the Mediation Centre, Delhi by which they agreed on terms and
conditions incorporated therein, to settle all their disputes and also for dissolution of their marriage.
The parties filed an application under Section 13-B(1) of the Act before the Family Court, i.e. ADJ-04
(West) Delhi seeking divorce by mutual consent. The said HMA No.456 of 2009 came before the
Court and it recorded the statement of parties on 16.11.2009. The parties moved another HMA No.
457 of 2009 to waive the statutory period of siX months in filing the second petition. However, the
Court rejected the said application vide order dated 1.12.2009 observing that the Court was not
competent to waive the required statutory period of si X months under the Act and such a waiver was
permissible only under the directions of this Court as held by this Court in Anil Kumar Jain v. Maya
Jain (2009) 10 SCC 415. Hence, this petition.

3. The learned counsel for the petitioner submits that there is no prohibition in law in entertaining
the petition under Article 136 of the Constitution against the order of the Family Court and in such
an eventuality, there was no occasion for the petitioner to approach the High Court as the relief

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 Manish Goel vs Rohini Goel on 5 February, 2010

sought herein cannot be granted by any court other than this Court. Thus, the petitioner has a right
to approach this Court against the order of the Family Court and the petitioner cannot be non-suited
on this ground alone.

4. Article 136 of the Constitution enables this Court, in its discretion to 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.

Undoubtedly, under Article 136 in the widest possible terms, a plenary jurisdiction e Xercisable on
assuming appellate jurisdiction has been conferred upon this Court. However, it is an e Xtra-ordinary
jurisdiction vested by the Constitution in the Court with implicit trust and faith and thus, e Xtra
ordinary care and caution has to be observed while e Xercising this jurisdiction. There is no vested
right of a party to approach this Court for the e Xercise of such a vast discretion, however, such a
course can be resorted to when this court feels that it is so warranted to eradicate injustice. Such a
jurisdiction is to be eXercised by the consideration of justice and call of duty. The power has to be
eXercised with great care and due consideration but while e Xercising the power, the order should be
passed taking into consideration all binding precedents otherwise such an order would create
problems in the future. The object of keeping such a wide power with this Court has been to see that
injustice is not perpetuated or perpetrated by decisions of courts below. More so, there should be a
question of law of general public importance or a decision which shocks the conscience of the court
are some of the prime requisites for grant of special leave. Thus, unless it is shown that e Xceptional
and special circumstances eXist that substantial and grave injustice has been done and that the case
in question presents features of sufficient gravity warranting review of the decision appealed
against, such eXercise should not be done. The power under Article 136 cannot be used to short
circuit the legal procedure prescribed in overriding power. This Court generally does not permit a
party to by-pass the normal procedure of appeal or reference to the High Court unless a question of
principle of great importance arises. It has to be eXercised eXceptionally and with caution and only
in such an eXtra- ordinary situations. More so, such power is to be e X ercised taking into
consideration the well established principles which govern the e Xercise of overriding constitutional
powers (vide Dhakeswari Cotton Mills Ltd. v. Commissioner of Income Tax, West Bengal AIR 1955
SC 65; The Union of India v. Kishorilal Gupta & Bros. AIR 1959 SC 1362; Murtaza & Sons & Anr. v.
Nazir Mohd. Khan & Ors. AIR 1970 SC 668; Sirpur Paper Mills Ltd. v. Commissioner of Wealth Tax,
Hyderabad AIR 1970 SC 1520; The Municipal Corporation, Bhopal v. Misbahul Hasan & Ors. AIR
1972 SC 892; Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and Ors.
AIR 1991 SC 2176; Tirupati Balaji Developers Pvt. Ltd. & Ors. v. State of Bihar & Ors. AIR 2004 SC
2351; and F.G.P. Ltd. v. Saleh Hooseini Doctor (2009) 10 SCC 223).

5. In Union of India & Ors. v. Karnail Singh (1995) 2 SCC 728, this court while dealing with the
similar issue held as under:
"It is true that this Court when e Xercises its discretionary power under Article 136 or passes any
order under Article 142, it does so with great care and due circumspection. But, when we are settling
the law in eXercise of this court's discretion, such law, so settled, should be clear and become
operational instead of being kept vague, so that it could become a binding precedent in all similar

2
 Nizam & Anr vs State Of Rajasthan on 4 September, 2015

Supreme Court of India

Nizam & Anr vs State Of Rajasthan on 4 September, 2015
Author: R Banumathi
Bench: Dipak Misra, R. Banumathi
REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 413 OF 2007

NIZAM & ANR.

...Appellants

Versus

STATE OF RAJASTHAN ...Respondent

J U D G M E N T

R. BANUMATHI, J.

This appeal assails the correctness of the judgment dated 01.07.2005 passed by the High Court of
Judicature at Rajasthan Jaipur Bench in Criminal Appeal No.1248 of 2002, whereby the High Court
confirmed the conviction of the accused-appellants under Sections 302 and 201 IPC and sentence of
life imprisonment imposed on each of them with a fine of Rs.2,000/- with default clause and also
two years rigorous imprisonment with a fine of Rs.500/- with default clause respectively.

2. Case of the prosecution is that deceased-Manoj was the helper on the truck No.MP-07-2627 and
had gone to Pune and thereafter to Barar alongwith his first driver Raj Kumar (PW-2) and second
driver Ram Parkash (PW-1) and from Barar they loaded the truck with pipes for destination to
Ghaziabad on 23.01.2001. Accused-appellants Nizam and Shafique who were the driver and cleaner
respectively on the truck No.DL-1GA-5943 also loaded their truck with pipes from the same
company on the same day at Barar and started for Ghaziabad alongwith truck No.MP-07-2627.
During this period drivers and cleaners of both the trucks developed acquaintance with each other.
While on the way to Ghaziabad, driver Raj Kumar (PW-2) of truck No.MP-07-2627 got into quarrel
with some local persons and consequently Barar police detained him alongwith his truck. Faced with
such situation, Raj Kumar (PW-2) instructed his second driver Ram Parkash (PW-1) to hand over
the amount of Rs.20,000/- to Manoj with instructions to give the money to the truck owner.
Accordingly, Manoj left for Gwalior with accused persons by the truck No.DL-1GA-5943 on
23.01.2001.

3. Dead body of deceased-Manoj was found on 26.01.2001 under suspicious circumstances in a field
near village Maniya. On 26.01.2001 at about 3.00 Oclock, one Koke Singh (PW-13) went to collect
the fodder and found a dead body lying in the field and the same was informed to Shahjad Khan
(PW-4). Based on the written information by Shahjad Khan (PW-4), case was registered in FIR

2
 Nizam & Anr vs State Of Rajasthan on 4 September, 2015

Where time gap is long it would be unsafe to base the conviction on the last seen theory; it is safer to
look for corroboration from other circumstances and evidence adduced by the prosecution. From
the facts and evidence, we find no other corroborative piece of evidence corroborating the last seen
theory.

19. In case of circumstantial evidence, court has to e Xamine the entire evidence in its entirety and
ensure that the only inference that can be drawn from the evidence is the guilt of the accused. In the
case at hand, neither the weapon of murder nor the money allegedly looted by the appellants or any
other material was recovered from the possession of the appellants. There are many apparent lapses
in the investigation and missing links:(i) Non-recovery of stolen money; (ii) The weapon from which
abrasions were caused; (iii) False case lodged by PW-2 alleging that he was being robbed by some
other miscreants; (iv) Non-identification of the dead body and (v) Non-e Xplanation as to how the
deceased reached Maniya village and injuries on his internal organ (penis). Thus we find many
loopholes in the case of the prosecution. For establishing the guilt on the basis of the circumstantial
evidence, the circumstances must be firmly established and the chain of circumstances must be
completed from the facts. The chain of circumstantial evidence cannot be said to be concluded in
any manner sought to be urged by the prosecution.

20. Normally, this Court will not interfere in eXercise of its powers under Article 136 of the
Constitution of India with the concurrent findings recorded by the courts below. But where material
aspects have not been taken into consideration and where the findings of the Court are
unsupportable from the evidence on record resulting in miscarriage of justice, this Court will
certainly interfere. The last seen theory seems to have substantially weighed with the courts below
and the High Court brushed aside many loopholes in the prosecution case. None of the
circumstances relied upon by the prosecution and accepted by the courts below can be said to be
pointing only to the guilt of the appellants and no other inference. If more than one inferences can
be drawn, then the accused must have the benefit of doubt. In the facts and circumstances of the
case, we are satisfied the conviction of the appellants cannot be sustained and the appeal ought to be
allowed.

21. The conviction of the appellants under Sections 302 and 201 IPC is set aside and the appeal is
allowed. The appellants are in jail and they are ordered to be set at liberty forthwith if not required
in any other case.

J.

(DIPAK MISRA) J.

(R. BANUMATHI) New Delhi;

September 4, 2015

2
 Pritam Singh vs The State on 5 May, 1950

Supreme Court of India

Pritam Singh vs The State on 5 May, 1950
Equivalent citations: 1950 AIR 169, 1950 SCR 453
Author: S Fazal Ali
Bench: Fazal Ali, Saiyid, Sastri, M. Patanjali, Mahajan, Mehr Chand, Mukherjea, B.K., Das, Sudhi
Ranjan
PETITIONER:
PRITAM SINGH

Vs.

RESPONDENT:
THE STATE

DATE OF JUDGMENT:
05/05/1950

BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
DAS, SUDHI RANJAN

CITATION:

1950 AIR 169 1950 SCR 453

CITATOR INFO :
D 1953 SC 415 (10)
RF 1954 SC 20 (5)
F 1954 SC 23 (13)
R 1954 SC 271 (11)
R 1956 SC 217 (31,35,44)
R 1958 SC 61 (8,9)
R 1959 SC 633 (5)
F 1961 SC 100 (2)
RF 1961 SC1708 (9)
R 1964 SC1645 (9)
R 1970 SC 668 (2)
RF 1976 SC 758 (8)
F 1977 SC 472 (5)
R 1986 SC 702 (12)
R 1988 SC1883 (245)
D 1992 SC1277 (39,101)

ACT:
Constitution of India, Art. 136 (1)--Special leave to
appeal-Granting of leave--Guiding Principles-Final
hearing--Nature of.

2
 Pritam Singh vs The State on 5 May, 1950

or order" which occur therein and which obviously cover a wide range of matters; secondly, that the
words used in this article are "in any cause or matter," while those used in articles 132 to 134 are
"civil, criminal or other proceeding," and thirdly, that while in articles 132 to 134 reference is made
to appeals from the High Courts, under this article, an appeal will lie from any court or tribunal in
the territory of India. On a careful e Xamination of article 136 along with the preceding article, it
seems clear that the wide discretion- ary power with which this Court is invested under it is to be
eXercised sparingly and in e Xceptional cases on13,, and as far as possible a more or less uniform
standard should be adopted in granting special leave in the wide range of matters which can come
up before it under this article. By virtue of this article, we can grant special leave in civil cases, in
criminal cases, in income-tax cases, in cases which come up before different kinds of tribunals and
in a variety of other cases. The only uniform standard which in our opinion can be laid down in the
circumstances is that Court should grant special leave to appeal only in those cases where special
circumstances are shown to eXist. The Privy Council have tried to lay down from time to time certain
principles for granting special leave in criminal cases, which were reviewed by the Federal Court in
Kapildeo v. The King. It is sufficient for our purpose to say that though we are not bound to follow
them too rigidly since the reasons, constitutional and administrative, which sometimes weighed
with the Privy Council, need not weigh with us, yet some of those principles are useful as furnishing
in many cases a sound basis for invoking the discretion of this Court in granting special leave.
Generally speaking, this Court will not grant special leave, unless it is shown that e Xceptional and
special circumstances eXist, that substantial and grave injustice has been done and that the case in
question presents features of sufficient gravity to warrant a review of the decision appealed against.
Since the present case does not in our opinion fulfil any of these conditions, we cannot interfere with
the decision of the High Court, and the appeal must be dismissed.

Appeal dismissed.

Agent for the appellant: S.P. Varma.

Agent for the respondent: P.A. Mehta.

2
 Municipal Corporation Of Thecity ... vs Jan Mohammed Usmanbhai & Anr on 17 April, 1986

Supreme Court of India

Municipal Corporation Of Thecity ... vs Jan Mohammed Usmanbhai & Anr on 17 April, 1986
Equivalent citations: 1986 AIR 1205, 1986 SCR (2) 700
Author: R Misra
Bench: Reddy, O. Chinnappa (J), Venkataramiah, E.S. (J), Eradi, V. Balakrishna (J), Misra, R.B. (J),
Khalid, V. (J)
PETITIONER:
MUNICIPAL CORPORATION OF THECITY OF AHMEDABAD & ORS.

Vs.

RESPONDENT:
JAN MOHAMMED USMANBHAI &

ANR. DATE OF

JUDGMENT17/04/1986

BENCH:
MISRA, R.B.
(J) BENCH:
MISRA, R.B. (J)
REDDY, O. CHINNAPPA (J)
VENKATARAMIAH, E.S. (J)
ERADI, V. BALAKRISHNA (J)
KHALID, V. (J)

CITATION:
1986 AIR 1205 1986 SCR (2) 700
1986 SCC (3) 20 1986 SCALE (1)1180

ACT:
Bombay Provincial Municipal Corporation Act, 1949 -
S. 466(1)(D)(b) - Standing Orders issued directing closure
of slaughter house on seven specified days in a year -
Whether violates fundamental right to carry on trade.

HEADNOTE:
Section 466 (l)(D)(b) of the Bombay Provincial
Municipal Corporation Act, 1949 confers on the Municipal
Commissioner power to make standing orders, rules and bye-
laws. One of such powers extends to fixation of days and
hours during which any market, slaughter house or stock-
yard may be kept open for use. The appellant-Corporation
framed such bye-laws on 18th July 1957 and the same had
been sanctioned by the Government. A standing order was
made by the Municipal Commissioner in the year 1956 fixing
four days as holidays in a year on which the municipal
slaughter house shall remain closed. By an amendment to
the said standing order effected on 17th September, 1965
three more holidays were added.

2
 Municipal Corporation Of Thecity ... vs Jan Mohammed Usmanbhai & Anr on 17 April, 1986

citizens affected thereby and the larger public interest

sought to be ensured in the light of the object sought to
be 702
achieved, the necessity to restrict the citizens, freedom,
the inherent pernicious nature of the act prohibited or
its capacity or tendency to be harmful to the general
public, the possibility of achieving the object by
imposing a less drastic restraints, and in the absence of
exceptional situations such as the prevalence of a State
of emergency, national or local or the necessity to
maintain necessary supplies or the necessities to stop
activities, inherently dangerous, the existence of a
machinery to satisfy the administrative authority that a
case for imposing restriction is made out or a less
drastic restriction may ensure the object intended to be
achieved. [713 G-H; 714 A- C]
3. Clause (6) of Art. 19 protects a law which imposes
in the interest of general public, reasonable restrictions
on the exercise of the right conferred by sub-c1. (g) of
c1.
(1) of Art. 19. It is left to the Court in case of a
dispute to determine the reasonableness of the restriction
imposed by the law. But the Court cannot proceed on a
general notion of what is reasonable in the abstract or
even on a consideration of what is reasonable from the
point of view of the person or persons on whom the
restrictions are imposed. The right conferred by sub-c1.
(g) is expressed in general language and if there had been
no qualifying provision like c1. (6) the right so
conferred would have been an absolute one. What the Court
has to do is to consider whether the restrictions imposed
are reasonable in the interest of general public. [714 G-
H; 715 A-B]
State of Madras v. V.G. Row, [1952] S.C.R. 597,
relied upon.
4. The expression "in the interest of general public"
is of wide import comprehending public order, public health,
public security, morals, economic welfare of the community
No
and the objects mentioned in Part IV of the
body can dispute a law providing for basic amenities; for
the dignity of human labour as a social welfare measure in
the interest of general public. [716 B-C]
5.1 The tests of reasonableness have to be viewed in
the context of the issues which faced the legislature. In
the construction of such laws and in judging their
validity,
Courts must approach the problem from the point of view
of 703
furthering the social interest which it is the purpose of
the legislation to promote. They are not in these matters
functioning in vacuo but as part of society which is
trying, by the enacted law to solve its problem and
furthering the moral and material progress of the
community as a whole. [716 G-H; 717 A]
Joti Prasad v. Union Territory of Delhi, [1961] S.C.R.
1601, relied upon. 2