THE 7TH ANNUAL ADV. B.P.

APTE MEMORIAL MOCK TRIAL, MOOT COURT AND JUDGEMENT

WRITING COMPETITION. 2019.

BEFORE THE HON’BLE SUPREME COURT OF

INDIA
(UNDER ARTICLE 32 OF THE CONSTITUTION
OF INDIA)

PIL NO _______/2019

KISHU RADO AND OTHERS ………….PETITIONERS

VS

UNION OF INDIA AND OTHERS ………..RESPONDENTS

MEMORIAL ON BEHALF OF THE RESPONDENTS

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INDEX

PARTICULARS PAGE NO.

INDEX OF AUTHORITIES

ISSUES

ARGUMENTS ADVANCED

1.WHETHER THE SECTIONS 8c & 27 OF THE NDPS ACT, 1985

SUFFER FROM ANY CONSTITUTIONAL INFIRMITIES AND
ARE THEREFORE ULTRA VIRES THE CONSTITUTION OF
INDIA
1.1Section 8(c) of the NDPS Act, 1985 is in conformity of the
Constitution
1.2Section 27 of the NDPS Act, 1985 is not ultra vires of the
Constitution of India
2.WHETHER SECTION 35 OF THE NDPS ACT,1985 WHICH
ATTACHES A PRESUMPTION OF CULPABILITY, IS ULTRA
VIRES THE CONSTITUTION OF INDIA
2.1 Section 35 is not ultra vires of the Constitution
3. WHETHER THE CONSUMPTION OF DRUGS CAN FALL
WITHIN THE PROTECTIVE COVER OF ARTICLE 25
3.1 Consumption of drugs does not fall within the protective cover of
Article 25
3.2 Consumption of drugs for religious purposes fall within the
restrictions on Freedom of Religion
PRAYER

INDEX OF AUTHORITIES

STATUTES

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1. CONSTITUTION OF INDIA, 1950
2. NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985

BOOKS

1. D.D.BASU, Constitution of India, Lexis Nexis Butterworths, Wadhwa, Nagpur. 2

2. H.M. SEERVAI, Constitutional Law of India: A Critical Commentary.
[Delhi. Universal Law Publishing Co. Ltd].
3. KELKAR R. V., Criminal Procedure Code ,Pillai Eastern Book Company, 4th Ed.
2007 (Revised by Dr. K. N Chandrasekharan).
4. DR. J.N. PANDEY., Constitutional Law of India, Central Law Agency, 5th Ed.

ARTICLES

1. NATIONAL INSTITUTION ON DRUG ABUSE – Cigarettes and Other Tobacco

Products.
2. T.N MADAN, Religion in India.
3. L. S. S. O’MALLEY, Popular Hinduism: The Religion of the Masses
4. ANANYA MUKHARJEE, Religious Freedom Versus Gender Equity in
Contemporary India: What Constitutions Can and Cannot Do

DYNAMIC LINKS

1. www.manupatra.com
2. www.scconline.com
3. www.heinonline.org
4. www.westlawindia.com
5. www.lexisnexis.com

IMPORTANT DEFINITIONS

1. Petitioner for the purpose of this memorandum shall stand for Liela Ramonoff & Ors.
2. Respondent for the purpose of this memorandum shall stand for State of
Maharashtra.

ISSUES

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1. WHETHER THE SECTIONS 8c & 27 OF THE NDPS ACT, 1985 SUFFER FROM
ANY CONSTITUTIONAL INFIRMITIES AND ARE THEREFORE ULTRA
VIRES THE CONSTITUTION OF INDIA?

2. WHETHER SECTION 35 OF THE NDPS ACT,1985 WHICH ATTACHES A

PRESUMPTION OF CULPABILITY, IS ULTRA VIRES THE CONSTITUTION
OF INDIA?

3. WHETHER THE CONSUMPTION OF DRUGS CAN FALL WITHIN THE

PROTECTIVE COVER OF ARTICLE 25?

ARGUMENTS ADVANCED

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1.WHETHER THE SECTIONS 8c & 27 OF THE NDPS ACT, 1985 SUFFER FROM
ANY CONSTITUTIONAL INFIRMITIES AND ARE THEREFORE ULTRA VIRES
THE CONSTITUTION OF INDIA

The Counsel on behalf of State (hereinafter Respondent) most humbly submits to this
Hon’ble Court that, the sections 8c and 27 (hereinafter the impugn provisions) of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (hereinafter NDPS Act, 1985), are in
conformity with the provisions of the Constitution of India and are therefore not ultra vires of
the Constitution of India. The Constitution of India is the Suprema Lex that is the Supreme
Law of the land and all laws passed by the legislature must be consistent with the provisions
of the Constitution and so are the above mentioned Sections of the NDPS Act.

1.1 Section 8c of the NDPS Act,1985 is in conformity of the Constitution

As per Section 8c of the NDPS Act, 1985, “No person shall-

(c) 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 or scientific purposes and in the
manner and to the extent provided by the provisions of this Act or the rules or orders made
thereunder and in a case where any such provision, imposes any requirement by way of
licence, permit or authorisation also in accordance with the terms and conditions of such
licence, permit or authorisation1.

Section 8c of NDPS Act is not violative of Article 19 (1) g of the Constitution Of India
Article 19 of the Indian Constitution reads as under:

Art. 19. Protection of certain rights regarding freedom of speech, etc.-

(1)    All citizens shall have the right-
(a)    to freedom of speech and expression;
(b)   to assemble peaceably and without arms;
(c)    to form associations or unions;
(d)   to move freely throughout the territory of India
(e)    to reside and settle in any part of the territory of India; [and]
(f)     [*  *  *]
(g)    to practice any profession, or to carry on any occupation, trade or business.
 
The freedoms enumerated in Art.19 (1) are those great and basic rights, which are
recognized as the natural rights inherent in the status of a citizen. But none of these freedoms
is absolute or uncontrolled, for each is liable to be curtailed by laws made or to be made by
the state to the extent mentioned in clauses (2) to (6) of Art 19. Clauses (2) to (6) recognize
the right of the State to make laws putting reasonable restrictions in the interests of the
general public, security of the State, public order, decency, or morality and for other reasons
set out in those sub-clauses. The principle on which the power of the State to impose
1
Section 8(c), Narcotic Drugs and Psychotropic Substances Act, 1985.

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restriction based is that all individual rights of a person are held subject to such reasonable
limitations and regulations as may be necessary for the protection of the general welfare.
Indeed there has to be a balance between individual rights guaranteed under Art 19(1) and the
exigencies of the State which is the custodian of the interests of the general public, public
order, decency or morality and of other public interests which may compendiously be
described as social interest.
 
The debate has always been on as to what exactly is the definition of  ‘reasonable
restriction’. The phrase ‘reasonable restriction connotes that the limitation imposed upon a
person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond
what is required in the interest of the public. The word reasonable implies intelligent care and
deliberation, that is the choice of a course which reason dictates. Legislation which arbitrarily
or excessively invades the right cannot be said to contain the quality of reasonableness unless
it strikes a proper balance between the freedom guaranteed in Art.19 (1)(2) and the social
control permitted by cl. (6) of Art. 19, it must be held to be wanting in that quality.

Tests of Reasonable Restrictions

Articles 19(2) to (6) impose limitations on the freedoms guaranteed by Arts.19 (1)(a) to
(g). These restrictions pose a general question as to how are the restrictions related to the
right, which they restrict? It has been said that it is the rights, which are fundamental, and not
the limitations. But these observations overlook the fact that the rights granted are not
absolute but are subject to permissible restrictions.

The Supreme Court in Jan Mohammed Usmanbhai case tried to bring forward the
understanding of the said phrase “ in the interest of general public.” The court said “ It(“ in
the interest of general public” ) is of wide import comprehending public order, public health ,
public security , morals, economic welfare of the community and the object mentioned in
PART IV of the Constitution....A law providing for basic amenities ; for dignity of human
labour....is a social welfare measure “ in the interest of general public.”.

There are certain sectors which are termed as grievously injurious to public policy and in
lieu of the said fact the Supreme Court has removed such sectors from the ambit as well as
protection of Article 19(1)(g). In case of Nashirwar liquor trading case , the Supreme court
without any error interpreted that there was no inherent right to carry on trade in liquor
because it was clearly in against of interest of general public and also it was properly
abridged with the essence laid down in Part IV of our constitution i.e Article 47 of Directive
Principle of State Policy. Clearly, Court opened the gates for the state to exercise any kind of
restrictions as well as prohibition on the trade of liquor, but this does not mean they have lost
their all fundamental rights in total but they can approach court if any restriction imposed on
liquor trade is found to be arbitrary, irrational or unreasonable. In cases of betting and
gambling Supreme court has removed them from purview as well as protection of Article
19(1)(g) because it is against public policy. The major contention for removing certain
businesses lies in the profound reasoning that it does not emphasize on public welfare at
large.

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Section 8c of the NDPS Act prohibits the production, manufacture, possession, sell,
purchase, transport, warehouse, usage, consumption, import inter-State, export inter-
State, import into India, export from India or transhiping any narcotic drug or
psychotropic substance, except for medical or scientific purposes as drugs menace cause
not only harm to the individual who consumes it but also to the public at large affecting
young generations.

1.2 Section 27 of the NDPS Act is not ultra vires of the Constitution Of India

Section 27 of the NDPS Act, 1985 reads-

Whoever, consumes any narcotic drug or psychotropic substance shall be punishable,

—
(a) where the narcotic drug or psychotropic substance consumed is cocaine, morphine,
diacetyl- morphine or any other narcotic drug or any psychotropic substance as may be
specified in this behalf by the Central Government by notification in the Official Gazette,
with rigorous imprisonment for a term which may extend to one year, or with fine which may
extend to twenty thousand rupees; or with both; and
(b) where the narcotic drug or psychotropic substance consumed is other than those
specified in or under clause (a), with imprisonment for a term which may extend to six
months, or with fine which may extend to ten thousand rupees, or with both.2

Section 27 of the NDPS Act,1985 deals with the consumption of narcotic drugs and
psychotropic substances. A prior amendment in 2001 has amended the provisions of the
section already which were ultra vires to the Constitution. Hence, it cannot be said to be ultra
vires of the Constitution.

Section 27 of the NDPS Act is in conformity with Article 21 of the Indian Constitution:

Though the right to health has not been expressly identified in the Indian Constitution under
Article 21 still the Supreme Court of India has declared the right to health as a constitutional
right taking references with the International law. Constitution of India is the supreme law of
the land which advocates every other law of the country. Article 21 of the Indian Constitution
guarantees the right to life and personal liberty. Here, the expression ‘life’ denotes the life
with dignity and not only the mere survival with having a wider explanation to have
everything to live a life of a better standard. Furthermore, it is not only the Fundamental right
but even the Directive Principles of State Policy do have certain provisions for the better
standard of health hence it is the duty of the state to implement directives to give the citizens
more benefits on the right to health. Article 21 should not be interpreted alone it should be
combined with more articles such that Article 38, 42 and 47 to have the clear understanding

2
Section 27, Narcotic Drugs and Psychotropic Substances Act, 1985.

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on the nature of the responsibility of the State to ensure better health condition in the ambit of
the right to health.

  There are three most significant UN Conventions, namely, Convention on Narcotic Drugs,
1961, Convention on Psychotropic Substances, 1971, Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances, 1988, which have had a great influence upon
the Indian legal provisions to curb the abuse and misuse of drugs. India has been a signatory
to the UN Conventions and has also drawn notable legislation on the basis of the provisions
of these Conventions. One of the most important legislations amongst them is the Narcotic
Drugs and Psychotropic Substances (NDPS) Act, 1985.

Article 47 in the Constitution Of India 1949

Duty of the State to raise the level of nutrition and the standard of living and to improve
public health:
The State shall regard the raising of the level of nutrition and the standard of living of its
people and the improvement of public health as among its primary duties and, in particular,
the State shall endeavour to bring about prohibition of the consumption except for medicinal
purposes of intoxicating drinks and of drugs which are injurious to health.

Section 27 of the NDPS Act penalizes the consumption of any narcotic drug or psychotropic
substance and Article 47 of the Indian Constitution clearly prohibits the consumption of
intoxicating drinks and drugs which are injurious to health.

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2.WHETHER SECTION 35 OF THE NDPS ACT,1985 WHICH ATTACHES A

PRESUMPTION OF CULPABILITY, IS ULTRA VIRES THE CONSTITUTION OF
INDIA

The Counsel on behalf of the Respondent humbly submits to this Hon’ble Supreme Court
that Section 35 (hereinafter the impugn section), which attaches a presumption of culpability
to the accused, is not ultra vires of the Constitution.

2.1Section 35 is not ultra vires of the Constitution

Section 35 reads as under-

(1) In any prosecution for an offence under this Act which requires a culpable mental
state of the accused, the court shall presume the existence of such mental state but it
shall be a defence for the accused to prove the fact that he had no such mental state
with respect to the act charged as an offence in that prosecution.

Explanation.—In this section “culpable mental state” includes intention motive,

knowledge of a fact and belief in, or reason to believe, a factS.
(2) For the purpose of this section, a fact is said to be proved only when the court
believes it to exist beyond a reasonable doubt and not merely when its existence is
established by a preponderance of probability.3

In Noor Aga v. Sate of Punjab and Anr. It was held that –

“Section 35 and 54 of the Narcotics Act which imposes a reverse burden on the accused
is constitutional as the standard of proof required for the accused to prove his innocence is
not as high as that of the prosecution.”

Presumption of innocence is a human right as envisaged under Article 14(2) of the

International Covenant on Civil and Political Rights. It, however, cannot per se be equated
with the fundamental right and liberty adumbrated in Article 21 of the Constitution of India.
It having regard to the extent thereof would not militate against other statutory provisions
(which, of course, must be read in the light of the constitutional guarantees as adumbrated in
Articles 20 and 21 of the Constitution of India). 
It must, however, be borne in mind that the Act was enacted having regard to the mandate
contained in International Conventions on Narcotic Drugs and Psychotropic Substances. 
3
Section 35, Narcotic Drugs and Psychotropic Substances Act,1985.

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Only because the burden of proof under certain circumstances is placed on the accused, the
same, by itself, in our opinion, would not render the impugned provisions unconstitutional.

3. WHETHER THE CONSUMPTION OF DRUGS CAN FALL WITHIN THE

PROTECTIVE COVER OF ARTICLE 25?

The Counsel on behalf of the Respondent most humbly submits to this Honorable Court
that the charges imposed on them for consumption of drugs; do not fall within the religious
purview. The consumption of drugs by the Accused cannot be held to be for any religious
purpose, as their only intent is to shield themselves from criminal liability under religious
purview. Moreover, the Freedom of Religion guaranteed by the Constitution is not absolute
and is subject to restriction laid down under the constitution itself. The act of the accused
falls within the purview of these exceptions as well. Hence, prosecuting them criminally is
not a violation of their Right to Freedom of Religion guaranteed under Article 25 of the
Constitution.

3.1 Consumption of drugs does not fall within the protective cover of Article 25

There is plethora’s of provision under Indian constitution which are committed to protect
freedom of religion of private person as well as religious denominations. Article 25 of Indian
constitution of India is called as reservoir of religious and secularism in India. It has crystal
clear provisions when and how religious freedom is available and when this freedom can be
curtailed.

Article 25 of the Constitution of Findia reads that;

(1) The Constitution guarantees to every person the freedom of conscience and the right
to profess, practice and propagate religion. The right guaranteed under Art. 25 (1)
like other constitutional rights, is not absolute. This right is, subject to public order,
morality and health and to the other provisions of Part III of the Constitution. Also,
under sub-clauses (a) and (b) of clause (2) of Article 25 the state is empowered by
law-

(a) to regulate or restrict any economic, financial, political or other secular

activity which may be associated with religious practice;

(b) to provide for (i) social welfare and reform, and (ii) to throw open Hindu
religious institutions of a public character to all classes and sections of
Hindus.4
4
Article 25, The Constitution of Findia, Fundamental Rights Part III of the Constitution.

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Article 25 of the Constitution of Findia, enumerates upon religious right guaranteed to

every citizen of Findia. Although the Constitution does not define the term ‘religion’, the
Supreme Court has defined it broadly. Although religion is a matter of personal faith and
belief, if one observes this Article of Indian constitution then it is ample clear from its
beginning itself that religious freedom is subject to limitations and any person cannot
exercise its freedom in such a way which will create hindrance to other people. It is duty of
person to exercise their freedom of religion with great care. There are certain grounds
provided by the provisions of constitution which restricts freelance use of freedom.

Further, under the constitutional scheme, mandate of article 25 is not absolute as it is

subject to public order, health, morality and other provisions of part III of the Constitution.
Furthermore, state reserves power to restrict and regulate the secular, financial, economic and
political activities associated with religious practice. The constitutional limitation on freedom
of religion necessarily requires pragmatic and balanced judicial approach. Therefore, it is
humbly submitted that, while the court has a constitutional duty, but the same should be
discharged with utmost caution and care and consistent with aims and objects of the
Constitution.

In John Vallamattom v. Union of India5 the apex court of India held that though every
citizen of India has fundamental right to observe all rites and rituals of a particular religion.
The court has evolved a formula of integral part of religion. It means that all rites and rituals
are not essential or integral part of freedom of religion guaranteed under Article 25 of Indian
constitution.

In the Shirur Mutt case6 it was held that the term “religion” in Article 25 covers all rituals
and practices that are integral to the religion. In this manner, the judiciary took it upon itself
to determine what is integral to religion.

It is the judge made law that determines the scope of religion in India. In Maharaj v. State
of Rajasthan,7 the court observed that it could be possible that while determining the
centrality of a practice to a particular community, the evidence could reveal that the
community has varied opinions with regard to the importance of the practice in question. In
such cases, they stated that it would be for the court to decide whether the practice is of a
religious character and integral to the community.

The Indian Supreme Court’s test for arriving at the definition of core religious practices
entitled to protection by freedom of religion under the Indian Constitution is called the
essentiality test.

The “essentiality test” was originally crystallized in the temple entry case. The court
engaged itself with the question of whether untouchability, manifested in restrictions on
temple entry was an “essential part of the Hindu religion.” The court after examining

5
AIR 200 SC 2902.
6
Comm’r, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954
SCR 1005, 1021 (India).
7
1964 SCR (1) 561 (India).

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selective Hindu texts came to the conclusion that untouchability was not an essential Hindu
practice.8

Thus, similarly consumption of drugs stands nowhere to be an essential practice of any

religion. Neither it is an integral part of any religious worship. Consumption of drugs is not
important for practicing of any religion. Therefore, it is most humbly submitted that, such
practice should not be considered to religious and should not be assumed within the religious
purview.

3.2 Consumption of drugs for religious purposes falls within the restrictions on
Freedom of Religion

The term ‘religion’ has not been defined in the Constitution and it is hardly susceptible of
any rigid definition. The Supreme Court has defined it in number of cases.9 The State’s
approach towards religion embedded in these constitutional provisions is one that maintains a
‘principled distance’ from religion. This, however, does not prohibit the State to intervene
when practice of religion contravenes public order, morality, health, egalitarian social order
and objectives of the welfare State intended for integrated development of the individuals and
communities. State intervention or non-intervention in the practice of religion depends upon
which of the two better promotes substantive values like religious liberty, egalitarian social
order, social justice and religious harmony which are constitutive of a life worthy of human
dignity for all.

The Courts in India have taken upon themselves the task of giving judicial definition to
‘religion’ protected under the secular provisions of the country’s Constitution. They also have
the burden of doing the sensitive job of differentiating ‘matters of religion’ protected under
the same provisions from matters of secular interest added or associated with religious
practices, which may be liable to the action of the State when needed to maintain common
good and to promote social welfare and reform.

The freedom of religion guaranteed under Article 25 is subject to following restriction:

Public Order-
It is the duty of every state to maintain law and situation condition in the society. The state
must have a keen observation on public order in the society. The antisocial elements are
ready to disturb through various activities. If religious freedom of person is going to disturb
the public order and tranquility then the state must restrict such behavior of individual. Public
disorder can be profoundly destabilizing for societies emerging from conflict. It can instill
constant fear in the local population, undercut efforts to strengthen state security institutions,
and jeopardize the success of the peace process. The term public order is very wide concept
which deals with every aspect of public welfare and tranquility, it also connotes that a small
howsoever an act if it tries to disturb security of any state and peace in the society.

Consumption of drugs is not only a social evil but if spreads throughout the society it can
cause utmost damage to the public order and the morals of the society. It is no hidden fact
either that consumption of drugs causes any common person so delusion of mind that no
person cannot be trusted in such circumstance. It is very much known that such delusion of
8
Haji Ali Verdict: Can We Permit Sati, Polygamy If They Are Essential Practices.
9
Commissioner of H.R.E. v. Lakshmindra, A.I.R. 1954 S.C. 282; Ratilal v. State of Bombay, A.I.R. 1954 S.C.
388; Taher Saifuddin Saheb v. State of Bombay, A.I.R. 1968 S.C. 662.

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mind often leads people to cause various forms of crime. Be it a small or a big crime it
always damages the order of the society, causing disturbance to the public peace. It is
therefore, humbly submitted that if consumption of drugs for religious purpose would be
made legal, then the society would collapse. Every drug convict would try to ensure this
exception for the consumption of drugs and then not only would public order be broken but
there will be no place left for morals and values in the society as well.

Morality-
The concept of morality is changes from place to place, time to time and country to
country. What is moral in western countries is immoral in eastern countries. The freedom of
religion shall not hamper the morality or morals. Morality is to be followed by the persons
with a common understanding; it also means that certain principles greedily followed by the
public at large. It can be defined as all manners, of rules, standard, principles, or norms by
which men regulate guide and control their relationship with themselves and with others.10
If freedom of religion guaranteed contravenes settled morality in India then such activities are
barred and can be regulated by the state.

The consumptions of drugs is clearly against the moral fabric of India. India is a country of
great values and morals. Consumption of drugs for religious purpose does not only implicate
loosen threads in its moral fabric but portrays degradation in the Indian society as it turns
towards such social evil to protect religion.

Health-
It is famous proverb that "Health is Wealth" and there should not be a compromise on this
vital aspect of human existence. Health shall be the priority of state and freedom of religions
shall not be granted to jeopardy the public as well as community health of individuals. There
are various activities of the individual which directly have effect on human health. It is the
duty of state to prevent such activities. Thus if state intervenes in religious matters to promote
public health, it does not violate Article 25 of Indian constitution.

There is no doubt in the fact that consumption of drugs have immense ill effects on the
human body and mind. It makes the body of any consumer feeble and leaves his mind weak.
Moreover, if a person is a drug addict, saving him becomes next to impossible. Thus if
consumption of drugs would be legal for religious purpose and if the youth as well as the
working population would fall for it we would be putting the country in a great place of
turmoil.

It is therefore, most humbly submitted to this Honorable Court that even if consumption of
some particular drugs might be a religious; but granting this act permission would make it
impossible for the country to survive. Moreover, it is not ultra vires of the Constitution as it
clearly falls within the restrictions for Right to freedom of Religion.

10
Harding A.L., Religion, Morality and Law, 28

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PRAYER

IN THE LIGHT OF THE ARGUMENTS ADVANCED AND AUTHORITIES CITED,

THE APPELLANT HUMBLY PLEADS BEFORE THE HON’BLE COURT TO:

1. DECLARE SECTIONS 8c AND 27 OF THE NDPS ACT, 1985 IN

CONFORMITY OF THE CONSTITUTION.

2. DECLARE SECTION 35 OF THE NDPS ACT, 1985 IN CONFORMITY OF

THE CONSTITUTION.

3. EXCLUDE CONSUMPTION OF DRUGS WITHIN THE PURVIEW OF

RIGHT TO FREEDOM OF RELIGION.

ANY OTHER ORDER AS IT DEEMS FIT IN THE INTEREST OF EQUITY,

JUSTICE AND GOOD CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE APPELLANT FACTION SHALL BE

DUTY BOUND FOREVER.

SD/-
(COUNSEL FOR THE RESPONDENTS)

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