Study with the several resources on Docsity
Earn points by helping other students or get them with a premium plan
Prepare for your exams
Study with the several resources on Docsity
Earn points to download
Earn points by helping other students or get them with a premium plan
Community
Ask the community for help and clear up your study doubts
Discover the best universities in your country according to Docsity users
Free resources
Download our free guides on studying techniques, anxiety management strategies, and thesis advice from Docsity tutors
MEMORIAL ON APPELLANT AND ARTICLE 136 F MEMORIAL ON APPELLANT AND ARTICLE 136 F MEMORIAL ON APPELLANT AND ARTICLE 136 F
Typology: Exams
1 / 40
This page cannot be seen from the preview
Don't miss anything!
V.
-Table of Contents- -Respondent- TABLE OF CONTENTS TABLE OF CONTENTS_______________________________________________________I INDEX OF ABBREVIATIONS_________________________________________________II INDEX OF AUTHORITIES___________________________________________________IV STATEMENT OF JURISDICTION______________________________________________X STATEMENT OF FACTS____________________________________________________XI QUESTIONS OF LAW_____________________________________________________XIV SUMMARY OF ARGUMENTS_______________________________________________XV ARGUMENTS ADVANCED___________________________________________________ 1 1 THE PENAL ACTION IMPLICATED UPON THE ACCUSED IS VALID AND JUSTIFIABLE.______________________________________________________________ 1 1.1The Appellant Has Conspired Against The State In Series Of Crime__________________ 1 1.2Circumstantial Evidence to Corroborate the Guilt of Accused_______________________ 5 1.3Acts of appellant constitute Waging War against the Government of Bambia___________ 7 2 THE CHARGES PRESSED AGAINST APPELLANT UNDER UAPA, 1967 AND PMLA, 2002 ARE JUSTIFIED_________________________________________________ 10 2.1Unlawful Activity Prevention Act, 1967_______________________________________ 10 2.2Prevention of Money Laundering Act, 2002____________________________________ 14 3 THE DUE PROCESS OF LAW HAS BEEN COMPLIED WITH________________ 17 3.1Act of Government not violative of Article 14,19,21 of Constitution of Bambia,1950__ 17 PRAYER________________________________________________________________XXI
-Index of Abbreviations- -Respondent-
41. LR 42. Tra-Co 43. Eds. 44. QB 45. ER 46. @ 47. ACR 48. U/S 49. UOI 50. V./Vs 51. Viz. 52. w.r.t
-Index of Authorities- -Respondent- INDEX OF AUTHORITIES STATUTES
1. CODE OF CRIMINAL PROCEDURE, 1973 2. CONSTITUTION OF INDIA, 1950 3. INDIAN PENAL CODE, 1860 4. INDIAN EVIDENCE ACT, 1872 5. PREVENTION OF MONEY LAUNDERING ACT, 6. TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1985 7. THE ARMS ACT, 8. UNLAWFUL ACTIVITIES PREVENTION ACT, BOOKS 1. D.D.BASU, Constitution of India , Lexis Nexis Butterworths, Wadhwa, Nagpur. 2. D.D.BASU, Criminal Procedure Code, 1973 , Lexis Nexis Butterworths Wadhwa, 4th Edn, 2010. 3. GAUR K. D, The Indian Penal Code , Universal Law Publishing Co. Pvt. Ltd., 4th^ Ed.,
4. H.M. SEERVAI, Constitutional Law of India: A Critical Commentary. [Delhi. Universal Law Publishing Co. Ltd]. 5. HALSBURY’S LAWS OF ENGLAND, (VOLUME 11, PP. 44 AND 58., 4TH EDITION). 6. HARI SINGH GOUR, The Penal Law Of India , 4869, (11th Edition, Delhi Law House, New Delhi, 2006). 7. J. W. CECIL TURNER KENNY’S, Outlines of Criminal Law , Cambridge University Press, 1952.
-Index of Authorities- -Respondent-
3. RAMANAND GARGE,Combating Financing of Terror: An Indian Perspective , Vivekananda International Foundation. 4. FATF (2015), Emerging Terrorist Financing Risks, FATF, Paris www.fatf- gafi.org/publications/methodsandtrends/documents/emerging-terrorist-financing- risks.html. 5. J. Venkatesan, “Binayak Sen gets bail in Supreme Court,” The Hindu, April 15, 2011, http://www.thehindu.com/news/national/article1698939.ece?homepage=true. 6. MINORITIES IN INDIA, 11 Socio-Legal Rev. 103 2015. 7. ROBERT E RIGGS, “ Substantive Due Process Of Law” , 1990 Wis. L. Rev. 941 8. ROLLIN M. PERKINS, PARTIES TO CRIME, 89 U. Pa. L. Rev. 581 1940-1941. 9. SANTOSH EJANTHKAR, The Growing Threat of Money Laundering, Capgemin 2011. 10. Sedition Laws & The Death Of Free Speech In India , Centre for the Study of Social Exclusion and Inclusive Policy, National Law School of India University, Bangalore & Alternative Law Forum, Bangalore, February, 2011. 11. SHYLASHRI SHANKAR, “ Judicial Restraint In An Era Of Terrorism ” 11 Socio- Legal Rev. 103 2015. 12. SRIJONI SEN ET. AL, “ Anti-Terrorism Law in India- A Study of Statutes and Judgements, 2001-2014” , Vidhi – Centre for Legal Policy, June 2015. 13. VIVEK CHADDHA, “ Life Blood of Terrorism ”, Bloomsbury Publishing India Pvt. Ltd., 2011. DYNAMIC LINKS 1. www.manupatra.com 2. www.scconline.com 3. www.heinonline.org 4. www.westlawindia.com 5. www.lexisnexis.com 6. www.ebscohost.com IMPORTANT DEFINITIONS 1. Appellant for the purpose of this memorandum shall stand for Rampon. 2. Respondent for the purpose of this memorandum shall stand for Province.
-Respondent-
-Index of Authorities- -Respondent-
-Statement of Jurisdiction- -Respondent- STATEMENT OF JURISDICTION The Hon’ble Supreme Court of Bambia has the inherent jurisdiction to try, entertain and dispose of the present case by virtue of Article 136 of The Constitution of Bambia. “Article 136. Special Leave to Appeal by the Supreme Court (1) Notwithstanding anything in this Chapter, the Supreme Court 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”
-Statement of Facts- -Respondent- created on facebook followed by an account in his name by the end of 2005. Rampon and his followers thought of propagating essence of socialism in the western world on a larger scale, thereby conducting workshops in various places of North America and European Union. IV 2009 - Rampon became a popular name among communist countries. His views went viral on all the social media and had around half a million followers on Twitter Rampon secured a domain name truesocialism.org to update his followers on the developments and scheduling of his events and programmes. ‘Quattics’, a company incorporated in Virginia (USA), offered him to be the ambassador for their Corporate Social Responsibility (CSR) avenues. Quattics is engaged in research and manufacture of nuclear and other technologically advanced weapons and has business transactions worldwide to supply and deliver weapons to Governments and other organizations. V 14th August, 2010 - trueisocialism.org crossed the mark of 20 million followers. He also formed an NGO with the same name True-Socialism. True-Socialism received funds from around the world and its contributors include politicians, heads of states, corporations, and so on. Some of its contributors include the ones that are blacklisted by some western countries. Nevertheless, the organization became a platform for all sorts of monetary contributions. Quattics floated 20 million dollars subscribed capital. True-Socialism joined Alberico Co. Ltd.( Jamaica), a television news channel and later acquired the majority of above floated capital of Quattics. The funds received by true socialism thereafter were diverted for some other purposes. VI 5th December, 2012 - Rampon and his group of six followers visited tribal people in the jungle areas of Central Province in Bambia. Rampon was received with open arms. Rampon happened to visit Karol wherein he was overwhelmed by his childhood memories, and one midnight he was seen crying and screaming on the outskirts of Dathu forest range. VII Six Months Later( June 2013 tentatively) - Rampon married Amati, a lady doctor there who happened to be the step daughter of one of the SDF leaders Memboya. Rampon moved around to propagate his ideas as well as for business endeavors. But primarily, he resided in Bambia. Through his NGO True-Socialism he opened the Institute for Studies in Scientific Socialism in Mayowa and Makrona (districts). VIII
-Statement of Facts- -Respondent- 5th June, 2013- 4 persons with heavy range weapons were arrested for attempting to attack a police station in Naipur district of Central Provinces. During interrogation, two of them chewed cyanide and the remaining two confessed to being the alumni of Institute for Studies in Scientific Socialism, Mayowa and ID proofs of Neoland nationalities were recovered from all four of them. Two weeks later(19/20 June 2013) , during midnight, in an attack against PMF camp in the remote area of Wharkhand district of Central Province, 136 people were killed, including civilians and PMF personnel and weapons embossed with Quattics were recovered from the scene. 23 August, 2013 - Jagganagar tribal riots broke out and around 100 people from other provinces were killed. IX 25th November 2014 - Parliament of Bambia was attacked by 20 armed persons, killed 3 gardeners and 4 security personnel. Thereafter, with the intervention of security forces 18 intruders were killed and 2 were arrested by the police. A detailed enquiry revealed the involvement of True-Socialism and the funds received from TrueSocialism. Further enquiry was not conducted as Rampon was in Chindesh for past two months to deliver lectures on socialism. X 11th February, 2015 -Rampon was arrested from Makrona airport in Eastern Province. The Sessions Court sentenced him to life imprisonment. On an appeal by the Province, the High Court confirmed the charges but enhanced the punishment to death penalty. Rampon filed a petition to the Hon’ble Supreme Court of Bambia in April 2016.
-Summary of Arguments- -Respondent- SUMMARY OF ARGUMENTS
1. THE CHARGES UNDER PENAL LAW IMPLICATED UPON THE ACCUSED IS VALID AND JUSTICIABLE The counsel on behalf of State ( hereinafter Respondent) most humbly submits that the penal action imposed on Rampon is valid and justifiable. The petitioner has indulged in a series of such criminal activities where his acts have created disturbance in the society and has restrained the public law and order of the State. The acts carried out by the appellant has created a state of terror in the mind of the people which has raised a grave question on the capability of the State in preserving peace and order in the society. The State has construed the penal provisions judiciously and has charged the appellant with the required penal provisions as stated there under. 2. THE CHARGES PRESSED AGAINST APPELLANT UNDER UAPA, 1967 AND PMLA, 2002 ARE JUSTIFIED The counsel on behalf of State ( hereinafter Respondent) most humbly submits that the charges pressed against the appellant under the Unlawful Activities (Prevention) Act, 1967 and Prevention of Money Laundering Act, 2002 are justifiable. The appellant has carried out such attacks on the State and State Bodies which are none other than terrorist attacks. Such attacks has created terror in the mind of the general public and has shaken the foundation of democracy of Bambia.Under such circumstances, the appellant can be declared as a terrorist and the charges pressed against him is in consonance with the act committed by him. Then again, the Appellant has diverted the money which he used to get for his NGO towards such illegal activities. Under such circumstances, PMLA, 2002 is attracted judiciously. 3. THE DUE PROCESS OF LAW HAS BEEN COMPLIED WITH. The counsel on behalf of State ( hereinafter Respondent) most humbly submits that the Due Process of law has been complied with. The State has followed the due process of law and moved the Sessions court after a detailed enquiry. The procedure of granting fair trial to the appellant has been meted out even in such a case where the security of the nation is in question. The charges were framed by the Sessions Court and the High Court confirmed it. This certifies that Due process of Law has been complied with. The State has left no stone unturned in giving fair and reasonable chance to the appellant to voice his plea in the appropriate court of law.
-Arguments Advanced- -Respondent- ARGUMENTS ADVANCED 1 THE PENAL ACTION IMPLICATED UPON THE ACCUSED IS VALID AND JUSTIFIABLE. The counsel on behalf of the Province ( hereinafter Respondent) pleads before the Hon’ble Court that the lower courts’ decisions are valid and justifiable. Rampon ( hereinafter appellant) has conspired against the state in series of crime and the charges against him have been proved by corboration of circumstantial evidence Ultimately, the appellant has breached the allegiance to the sovereign by abetting the waging of war. 1.1 The Appellant Has Conspired Against The State In Series Of Crime As per Section 120A of BPC “ When two or more persons agree to do, or cause to be done – (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated as criminal conspiracy ” The constituent elements of the offence of criminal conspiracy are:
-Arguments Advanced- -Respondent- The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. It is not, however, necessary that each conspirator should have been in communication with the other.^11 Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary, neither it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient.^12 1.1.2 Appellant has been involved in illegal activity, in furtherance of agreement The second essential for proving existence of a criminal conspiracy is that of establishing that the agreement to conspire is to do an illegal act or a legal act by legal means. To establish this charge, knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary.^13 It is immaterial whether the illegal act is the ultimate object of such crime, or is merely incidental to it.^14 Under Section 43 of the BPC, an act would be illegal if it is an offence or if it is prohibited by law. This apart, the prosecution has not to establish that a particular unlawful use was intended as, the ultimate offence consists of a chain of actions.^15 When the ultimate offence consists of a chain of actions^16 , it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do^17 , so long as it is known that the 11 HALSBURY’S LAWS OF ENGLAND, (VOLUME 11, PP. 44 AND 58., 4TH EDITION). 12 Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609, SCC pp. 732-33, ¶275. 13 Infra note 17 14 Saju v. State of Kerala ,(2001) 1 SCC 378. 15 State of Maharashtra v. Som Nath Thapa, AIR1996 SC 1744. 16 State of Bihar v. Paramhans Yadav, (1986) Pat LJR 688 (HC). 17 State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659.
-Arguments Advanced- -Respondent- collaborator would put the goods or service to an unlawful use.^18 The offence of criminal conspiracy consists in the co-operation of two or more persons. It is necessary all the persons should share the common intention. The ‘common intention’ implies a prior concert, that is, a prior meeting of minds and participation of all the members of the group in the execution of that plan.^19 Common intention also means a desire to commit a criminal act without any contemplation of offence.^20 It deals with doing of several acts, similar or diverse in furtherance of common intention.^21 Direct proof of common intention is seldom; therefore intention could be inferred from circumstantial evidences.^22 To infer common intention an inference by a Court must be premise on the incriminating facts established by the prosecution.^23 Section 120-A of BPC read with Section 10 of the Bambian Evidence Act, 1872 will come into play when court is satisfied that there is reasonable ground for belief that two or more persons have conspired together to commit an offence.^24 There is no difference between the mode of proof of the offence of conspiracy and that of any other offence; it can be established by direct or circumstantial evidence^25. Conspiracies are not hatched in the open, by their nature, they are secretly planned, they can be proved even by circumstantial evidence^26 , and the lack of direct evidence relating to conspiracy has no consequence.^27 18 Id. 19 Harbans Kaur v. State of Haryana, AIR 2005 SC 2969; Pandurang Tukia and Bhillia v. State of Hyderabad, AIR 1955 SC 331. 20 Akanda v. Emperor, AIR 1944 Cal 339. 21 Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC. 22 State of M.P v. Desh Raj, 2004 Cri LJ 1415. 23 Idris Bhai Daud Bhai v. State of Gujarat, 2003 SCC 277. 24 DR. HARI SINGH GAUR, THE INDIAN PENAL CODE, 364, (15TH EDITION, DELHI LAW HOUSE, NEW DELHI, 2016) 25 Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682. 26 Central Bureau Of Investigation v. Nalini & Ors., (1999) 5 SCC 253. 27 E.K. Chandrasenan v. State of Kerala, AIR 1995 SC 1066.
