BEFORE THE HON’BLE SUPREME COURT OF KINDIA

IN THE MATTER OF:

MR.ZICO ... APPELLANT

V.

THE UNION OF KINDIA ... RESPONDENT

SPECIAL LEAVE PETITION NO. ****/2020

ON SUBMISSION TO THE HON’BLE SC OF KINDIA

UNDER ART. 136 OF THE CONST. OF KINDIA

WRITTEN SUBMISSIONS ON BEHALF OF THE

APPELLANT

COUNSEL APPEARING ON BEHALF OF THE APPELLANT

 TABLE OF CONTENTS
LIST OF ABBREVIATIONS………………………………………………………........…..2
INDEX OF AUTHORITIES……………………………………………………….....……..3
STATEMENT OF JURISDICTION……………………...……………………….………..4
STATEMENT OF FACTS……………………………………………………………..….5-7
ISSUED RAISED……..………………………………………………………......…...….....8
SUMMARY OF ARGUMENTS……………………………….......................................9-10
ARGUMENTS ADVANCED………………………………………....................................11
A. WHETHER THE NOTIFICATION AUTHORISING WIRE INTERCEPTION IS
CONSTITUTIONALLY
VALID………………………………………………………………………..…......11

1) Procedure for lawful interception was not followed…………………….….11-12

B. WHETHER A STATEMENT AMOUNTING TO CONFESSION UNDER SECTION

67 OF THE NDPS ACT IS CONSTITUTIONALLY ADMISSIBLE IN
EVIDENCE…………………………………………....……………………….....12-14
C. WHETHER THE TWIN CONDITIONS FOR BAIL UNDER SECTION 37 OF NDPS
ACT ARE CONSTITUTIONALLY VALID?.............................................15-16
D. WHETHER MR. ZICO’S RIGHT PROVIDED UNDER ARTICLE 20(3) AND
ARTICLE 21 OF THE CONSTITUTION ARE VIOLATED OR NOT…………….16
1. RIGHT UNDER ARTICLE 20(3) OF THE CONSTITUTION ARE
VIOLATED…………………………………………………………….…16-
17
2. THERE HAS BEEN VIOLATION OF RIGHTS UNDER ARTICLE 21 OF
THE CONSTITUTION ………………………………………………….17-18

PRAYER……………………………………………………………………………...……..19

1
 LIST OF ABBREVIATIONS

"& " And

AIR All India Report

Anr. Another

CrPC Criminal Procedure Code

Dept. Department

I.T. Information Technology

NDPS Narcotic Drugs and Psychotropic

Substances Supplement.

S. Section

S.C. Supreme Court

S.C.C. Supreme Court Case

Ed Editor

Hon’ble Honourable

Edn. Edition

T.N. Tamil Nadu

U.P. Uttar Pradesh

v. Versus

Vol. Volume

2
 INDEX OF AUTHORITIES
STATUTORY COMPILATIONS
➔ CODE OF CRIMINAL PROCEDURE, 1973
➔ CONSTITUTION OF INDIA
➔ NARCOTICS DRUGS AND PSYCHOTROPIC SUBSTANCES, 1985
➔ INDIAN EVIDENCE ACT, 1872
➔ INDIAN TELEGRAPH ACT, 1885

BOOKS AND DIGESTS

➔ Dibyajyoti De, Guide to Narcotic Drugs and Psychotropic substances Act (1 st
edn,Wadhwa and Company Nagpur, 2003)
➔ H.M Seervai, Constitutional Law of India (4 th edn, Universal Law
PublishingCo.2010)
➔ M.P. Jain, Indian Constitutional Law ( 7 th edn, LexisNexis, 2014)
➔ P.K Majumdar and R.P Kataria, Commentary on the Constitution of India (10 th edn,
Orient Publishing Company, 2009)
➔ Ratanlal And Dhirajlal, The Law of Evidence (25th edition, LexisNexis, 2013)

TABLE OF CASES

1. Dilip v. State of M.P

2. Hukam Chand Shyam Lal v. Union of India
3. Lal v. Union of India
4. Nikesh Tarachand Shah v. Union of India
5. Noor Aga Vs. State of Punjab & Anr
6. Ram Malkhani v. State of Maharashtra
7. Sandeep Kumar v.Central Bureau of Narcotics
8. People’s Union for Civil Liberties v. Union of India
9. State of Maharashtra v. Bharat Shanti Lal Shah
10. State of Rajasthan v. Parmanand
11. Sikodh Mahto vs. State
12. Union of India Vs. Bal Mukund

3
 STATEMENT OF JURISDICTION
The Appellant has approached the Hon’ble Supreme Court of Kindia under Article 136 of the
Constitution of Kindia. The leave has been granted by this Hon’ble Court in all the the four
issues and the issues are are to be heard by this Hon’ble Court. The Article 136 of the
Constitution of Kindia read as under:

“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.
Appellant humbly submits that this court has the appropriate jurisdiction to hear the
matter and adjudicate accordingly.

4
 STATEMENT OF FACTS

1. Kindia is positioned on the Hadenese subcontinent in south-central Luthania. And is

among the most populated countries of the world. Having gained independence a mere
70 years back, Kindia is among the largest and youngest democracies of the world
placing special emphasis on personal liberty.Though an independent and sovereign
country, the Kindian Constitution draws its inspiration from various countries.
2. Kindia shares its borders with 2 other countries, Bakistan on the Northwest and Mina
on the Eastern side.Though Kindia has successfully maintained friendly relations with
the 2 countries for the better half of 5 decades little was accomplished to tackle the
smuggling of narcotic substances from Bakistan and Mina into Kindia.
3. In order to combat the ever increasing menace of drugs Kindia enacted the NDPS Act
which provides for stringent punishment and took a preventive theory of punishment in
dealing with offences which come under the purview of the act.
4. In the year 2013 the central government published an order in the official gazette
whereby: “Notwithstanding anything in the Code or in any other law for the time being
in force, the evidence collected through the interception of wire, electronic or oral
communication under this section shall be admissible as evidence against the accused
in the Court during the trial of a case : Provided that, the contents of any wire, electronic
or oral communication intercepted pursuant to this section or evidence derived
therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing
or other proceeding in any Court unless each party, not less than ten days before the
trial, hearing or proceeding, has been furnished with a copy of the order of the
Competent Authority, and accompanying application, under which the interception was
authorised or approved: Provided further that, this ten days period may be waived by
the judge, trying the matter, if he finds that it was not possible to furnish the party with
the above information ten days before the trial, hearing or proceeding and that the party
will not be prejudiced by the delay in receiving such information.

Explanation.—For the purposes of this section—

1. 'wire communication’ means any aural transfer made in whole or part through
the use of facilities for the transmission of communications by the aid of wire,
cable or other like connection between the point of origin and the point of
connection, between the point of origin and point of reception (including the

5
 use of such connection switching station) and such term includes any electronic
storage of such communication;

2. ‘oral communication’ means any oral communication uttered by a person

exhibiting an expectation that such communication is not subject to interception
under circumstances justifying such expectation, but such term does not include
any electronic communication;

3. ‘electronic communication’ means any transfer of signs, signals, writings,

images, sounds, data or intelligence of any nature transmitted in whole or in part
by a wire, radio, electromagnetic, photo electronic or photo optical system that
affects inland or foreign commerce but does not include—

4. the radio portion of a cordless telephone communication that is transmitted

between the wireless telephone hand-set and the base unit;
❖ any wire or oral communication;
❖ any communication made through a tone only paging device;
❖ or any communication from a tracking device;
❖ ‘intercept’ means the aural or other acquisition of the contents by wire,
electronic or oral communication through the use of any electronic,
mechanical or other device.”
5. Under the aforesaid law the police started cracking down on the illicit trade in narcotics
and psychotropic substances and 100 of suspects came to be convicted based on their
telephonic conversation. On 27th October, 2018 Additional Commissioner of Police
Rahimatullah Sayyed received a tip that a Nigerian national Mr. Zico was supplying
drugs to college students. Mr. Zico had prior antecedents of theft and gracious hurt in
which he was acquitted. Accordingly, the police started intercepting Mr.Zico’s
telephone calls to which they were upraised that a drug transaction was to take place
DB marg road in Mumbai on 1st November, 2018 at around 9:45pm.
6. Accordingly, a team of NCB officers went to the spot at 7:30 and upraised 2 respectable
locals of the raid requesting them to act as panch witnesses to which they agreed. At
around 09:45 PM Mr. Zico was spotted on an Activa bearing registration MOH4872 to
which he was stopped and the police introduced themselves as NCB officers, further
they also upraised him of their suspicions and informed him that he has the right to be

6
 searched in the presence of a gazetted officer or a Magistrate which he declined. On
searching the police recovered white coloured powdered substance which they tested
in the spot kit. The substance tested positive for cocaine upon which it was sealed under
the NCB seal and the same was signed by the panch witnesses and the senior P.I.
7. The spot panchnama was completed by 11:45 PM and Mr. Zico was taken into custody
for offence under Section 16 read with S.28 of NDPS Act wherein he confessed that he
had taken the drugs for the purpose of sale to some unknown college students who were
to approach him by 10 pm.
8. Mr. Zico was granted JC by the special court on 2nd November, 2018 however his bail
application came to be rejected. Mr. Zico filed a fresh bail application before the
Hon'ble High Court and the same came to be rejected on the grounds that the twin
conditions for bail could not be satisfied in view of the interceptions and the confession.
Mr. Zico filed an SLP against the order of the Hon'ble High Court. Leave is granted
and the matter is at the final argument stage.

7
 ISSUES RAISED

1. Whether the notification authorizing wire interception is constitutionally valid?

2. Whether a statement amounting to confession under section 67 of NDPS Act is
constitutionally admissible in evidence?
3. Whether the twin conditions for bail under Section 37 of NDPS Act are constitutionally
valid?
4. Whether Mr. Zico’s rights provided under article 20(3) and Article 21 of the
Constitution are violated or not?

8
 SUMMARY OF ARGUMENTS

1) Whether the notification authorising wire interception is

constitutionally valid?

It is humbly submitted before the Hon’ble Court, that the notification authorising wire
interception is constitutionally valid only when any wire, electronic or oral
communication intercepted pursuant to this section has been furnished to each party,
not less than ten days before the trial, hearing or proceeding, along with a copy of the
order of the Competent Authority, and accompanying application, under which the
interception was authorised or approved. In the pertinent case neither any order of the
competent authority was obtained for intercepting the appellant’s telephone call nor
was the intercepted communication furnished to the appellant ten days prior to the trial.

2) Whether a statement amounting to confession under S. 67 of the NDPS

Act is constitutionally admissible in evidence?

It is humbly submitted before the hon’ble Supreme court of Kindia that a statement
amounting to confession under S.67 of the NDPS Act, 1985 is constitutionally
inadmissible in evidence. It is argued that, in any case, confessional statement recorded
in absence of a magistrate is as the excise official recording the statement is to be treated
as “police officer” and thus, the evidential value of the statement recorded before him
is hit by the provisions of Section 25 of the Indian Evidence Act which is exactly the
situation in the pertinent case.

9
3) Whether the twin conditions for bail under section 37 of NDPS Act are
constitutionally valid?

It is humbly submitted before the hon'ble court that the twin conditions for bail under
S.37 of the NDPS Act are intrinsically invalid. S.37(1)(b)(ii) of the NDPS Act contains
conditions which ought to be fulfilled by the Court before giving bail.This section
seems contrary to the principle of presumption of innocence in favour of the accused
until proved otherwise. The second part of the section seems humanly impossible as the
Court is required to record a satisfaction that the accused would, likely, commit the
offence after coming out of the custody, or would not commit any offence after coming
out of the custody.

4) Whether Mr. Zico’s right provided under Article 20(3) and Article
21 of the Constitution are violated or not?
It is most respectfully contended that there has been violation of fundamental rights
under Art. 20(3) and Art. 21 of the Constitution of Kindia. Article 20(3) of the Kindian
Constitution provides for protection in respect of conviction for offences. It states that
“No person accused of any offence shall be compelled to be a witness against himself”.
This means that an accused person cannot be compelled to be a witness against himself
and furnish evidence of self-incriminating nature. Mr. Zico has been falsely
implicated in the present case and has been compelled to be a witness against
himself. Art. 21 of the Constitution of Kindia grants every person a right to life and
personal liberty, which cannot be breached, except according to the procedure
established by law. It is submitted that there has been violation of this right as the
telephone call information was not obtained according to the procedure established by
law for public security and prevention of drug trafficking.

10
 ARGUMENTS ADVANCED

A. WHETHER THE NOTIFICATION AUTHORISING WIRE

INTERCEPTION IS CONSTITUTIONALLY VALID?
1. It is humbly submitted before the Hon’ble Court, that the notification authorising wire
interception is constitutionally valid only when any wire, electronic or oral
communication intercepted pursuant to this section has been furnished to each party,
not less than ten days before the trial, hearing or proceeding, along with a copy of the
order of the Competent Authority, and accompanying application, under which the
interception was authorised or approved. In the pertinent case neither any order of the
competent authority was obtained for intercepting the appellant’s telephone call nor
was the intercepted communication furnished to the appellant ten days prior to the trial.

1. PROCEDURE FOR THE LAWFUL INTERCEPTION WAS NOT

FOLLOWED

2. It is contended that in the present case, the due procedure for intercepting the telephone
call of the appellant was not followed. In People’s Union for Civil Liberties v. Union
of India1, the hon’ble court ruled that telephone tapping is a serious invasion upon an
individual’s privacy. However, lawful interception can be carried out under certain
circumstances mentioned in the wiretapping provision.
3. An order for lawful interception can only be made by the Home Secretary to the
Government of India and Home Secretaries of State Governments.2 In urgent situations
the power may be delegated to an officer of the Home Department of Government of
India and such officer should not be below the rank of joint secretary. Also, any order
issued by the competent authority shall contain reasons for such direction and a copy
of such order shall be forwarded to the concerned Review Committee within a period
of seven working days. In the aforesaid facts and circumstances the prior permission to
intercept the phone call of the appellant was not obtained. Also there was no mention
of the review committee for scrutinizing such an order.

1
People’s Union for Civil Liberties v. Union of India,AIR 1997 SC 568
2
Section 5(2) Indian Telegraph Act 1885, Rule 419(A) Indian Telegraph (Amendment) Rules, 2007

11
 4. In Hukam Chand Shyam Lal v. Union of India3 the court relied on the steps under
S.5(2)4 of the Act, stating the competent authority under S.5(2)5 of the Act is
empowered to pass an order of interception of messages/telephones after recording its
satisfaction that it is necessary or expedient to do so in the interest of public safety or
for preventing incitement to the commission of an offence.
5. In respect of the appellant's telephone number, it is specifically stated that no order for
interception of the appellant’s number was ever issued either on 27-10-2018, or earlier,
or for that matter, even later. This categorical denial is being submitted after careful
scrutiny of all the relevant records. Also it is respectfully stated on the basis of careful
scrutiny of records, that no request for interception of the appellant's telephone number
was ever made to the Principal Secretary (Home) from any police officer or for that
matter any agency, governmental/police or otherwise.
B. WHETHER A STATEMENT AMOUNTING TO CONFESSION
UNDER SECTION 67 OF THE NDPS ACT IS
CONSTITUTIONALLY ADMISSIBLE IN EVIDENCE?
6. It is humbly submitted before the hon’ble Supreme court of Kindia that a statement
amounting to confession under S.67 of the NDPS Act, 1985 is constitutionally
inadmissible in evidence. It is argued that, in any case, confessional statement recorded
in absence of a magistrate is as the excise official recording the statement is to be treated
as “police officer” and thus, the evidential value of the statement recorded before him
is hit by the provisions of S.25 of the Evidence Act6.
7. The term police officer has not been defined in the Evidence Act and therefore, the
meaning ought to assessed not by equating the powers of the officer sought to be
equated with a police officer but from the power he possesses from the perception of
common public to assess his capacity to influence, pressure or coercion on persons who
are searched, detained or arrested. The influence exercised has to be assessed from the
consequences that a person is likely to suffer in view of the provisions of the Act under
which he is being looked.
8. In the pertinent case, it was the police officers who introduced themselves as the NCB
Officers hence the confession made in front of them shall not be regarded as a

3
Hukam Chand Shyam Lal v. Union of India1959 AIR 536
4
Indian Telegraph Act, 1885, S 5(2)
5
Ibid
6
Tofan Singh v. State of T.N (2013) 16 SCC 31

12
 substantive evidence. In Toofan Singh v State of Tamil Nadu7 it was contended that
there is no power under S.67 of the NDPS Act to either record confessions or
substantive evidence which can form the basis for conviction of an accused.
9. The power under S. 67 has been conferred upon an officer under S.42 so that such
officer can effectively perform his functions. The power under S.67 is incidental to and
intended to enable an officer under S.42 to effectively exercise his powers of entry,
search, seizure or arrest which is provided under S.42 of the Act. The powers under
S.678 are powers to “call for information” which information can thereafter form the
basis for satisfaction of “reasons to believe by personal knowledge or information”
appearing in S.429 and which is a jurisdictional basis and a precondition to exercise
powers under S.42 of the Act. Absence of reasons to believe or information would
render the exercise under S.42 of the Act bad in law and hence in order to derive the
said information power has been conferred under S.67 to an officer empowered under
S.42. This statement is, therefore, merely “information” subject to investigation and
cannot be treated as substantive evidence.
10. In the present case, the officers recording the statement were police officers and,
therefore, such a statement is hit by S.2510 of the Indian Evidence Act. An officer
empowered under S.42 of the Act has been conferred with substantive powers which
are powers available to a police officer for detection and prevention of crime.
11. Relying upon the judgment of the Constitution Bench of this Court in Badaku Joti Svant
v. State of Mysore11, which accepted a broader view, as laid down in Raja Ram Jaiswal
v. State of Bihar12 and State of Punjab v. Barkat Ram13, it is submitted that the officers
empowered under S.42 and conferred with powers to enter, search, seize or arrest are
“police officers” properly so-called and hence statements made to such officers would
be hit by the provisions of S. 25 of the Indian Evidence Act. In any case such officers
would come within the meaning of term “person in authority” and hence the
statements recorded by such officers would be hit by the provisions of S.24 of the
Indian Evidence Act.

7
Ibid
8
Narcotics Drugs And Psychotropic Substances, 1985, S. 67
9
Narcotics Drugs And Psychotropic Substances, 1985, S. 42
10
Indian Evidence Act, 1872, S. 25
11
Badaku Joti Svant v. State of Mysore(1966) 3 SCR 698
12
Raja Ram Jaiswal v. State of Bihar AIR 1964 SC 828
13
State of Punjab v. Barkat RamAIR 1962 SC 276

13
 12. In Noor Aga vs. State of Punjab14 where the court, has after considering the entire
scheme of the Customs Act, has held that the officer under S.53 of the customs Act
is a police officer and would, therefore, attract the provisions of S.25 of the Indian
Evidence Act. No doubt, the case of Noor Aga was under the Customs Act. But the
reasons for holding a custom officer as police officer would have significant bearing
even when we consider the issue in the context of NDPS Act as well.
13. The persons categorised as “police officers” can do all the activities and the statute
gives them the power to enable them to discharge their duties efficiently. Of the various
duties mentioned in S.23 of the Police Act, 1861, is to prevent the commission of
offences and public nuisances and to detect and bring offenders to justice. A
comparison to the powers of the officers under the provisions of the NDPS Act makes
it clear that the duties and responsibilities of the officers empowered under the Act are
comparable to those of the police officers and, therefore, they ought to be construed as
such. It is submitted that the primary objective of an NDPS Officer is to detect and
prevent crime defined under the provisions of the Act and thereafter the procedure has
been prescribed to bring the offenders to justice. Thus, the officers under the Act are
“police officers” and statements made to such officers are inadmissible in evidence.

C. WHETHER THE TWIN CONDITIONS FOR BAIL UNDER

SECTION 37 OF NDPS ACT ARE CONSTITUTIONALLY VALID?

14. It is humbly submitted before the hon’ble court that the twin conditions for bail under
S. 37 of the NDPS Act are constitutionally invalid. S.37(1)(b)(ii) of the NDPS Act
contains conditions which should be satisfied by the Court before granting bail. It reads
as: ‘..........the court is satisfied that there are reasonable grounds for believing that he
is not guilty of such offence and that he is not likely to commit any offence while on
bail…….’
15. According to this section Court requires prima facie to come to satisfaction that the
accused is not guilty of the offence alleged against him. This section seems contrary to
the principle of presumption of innocence in favour of the accused until proved
otherwise. The second part of the section seems humanly impossible as the Court is

14
Noor Aga vs. State of Punjab(2008) 9 SCALE 681

14
 required to record a satisfaction that the accused would, likely, commit the offence after
coming out of the custody, or would not commit any offence after coming out of the
custody.
16. The twin conditions for bail provided under S.37 of the NDPS are pari materia to S.45
of the prevention of Money Laundering Act. In Nikesh Tarachand Shah v. Union of
India15, the twin conditions for bail under S.45(1)16 of the Prevention of Money-
Laundering Act, 2002, were declared unconstitutional as it violates Articles 14 and 21
of the Constitution of India. Further the court contended that the matters before the
court in which bail has been denied, because of the presence of the twin conditions
contained in S.45, will now go back to the respective courts which denied bail. All such
orders were set aside, and the cases remanded to the respective courts to be heard on
merits, without application of the twin conditions contained in S.45f17 of the 2002 Act.
17. Viewing the provision of law and precedential position reiterated from time to time,
it is important to advert that the concern of the Hon’ble Apex Court for the liberty
of accused and his right to speedy justice has always been expressed in unambiguous
words. Right to speedy trial and twin conditions test for bail u/s 37 NDPS Act are
separate but interrelated.
18. Twin conditions test as provided u/s 3718 of NDPS Act, is uncertain and meant to
be ascertained mostly by guess work. When the release of the under trial prisoner is
associated with the result of guesswork or conjecture, the trial time assumes
primacy.
19. In the pertinent case, applying strict provisions of S.37 of NDPS Act is a discrimination
with the appellant. Further, it is argued that the requirements prescribed under
S.37(1)(b)(ii) are totally irrational, defy logic, and are bound to be applied in
discriminatory and arbitrary manner. This part of the Section is nothing but luxury of
language, drafted to disguise the attack on fundamental right. Therefore, this part of the
Section deserves to be set aside. In any case, the petitioner is entitled to bail taking into
consideration Article 21 of the Constitution, irrespective of any limiting provision
contained in S.37 of the NDPS Act.

15
Nikesh Tarachand Shah v. Union of India(2018) 11 SCC 154
16
Prevention of Money-Laundering Act, 2002, S45(1)
17
Ibid
18
Narcotics,Drugs And Psychotropic Substances, 1985, S.37

15
 D. WHETHER MR. ZICO’S RIGHT PROVIDED UNDER ARTICLE
20(3) AND ARTICLE 21 OF THE CONSTITUTION ARE
VIOLATED OR NOT?
It is humbly submitted before the Hon‟ble Court that Mr. Zico’s rights under Article
20(3)19 and Article 21 of the Constitution of Kindia have been violated.
1.RIGHT UNDER ARTICLE 20(3) OF THE CONSTITUTION IS VIOLATED
20. Article 20(3) of the Kindian Constitution provides for protection in respect of
conviction for offences. It states that “No person accused of any offence shall be
compelled to be a witness against himself”20. This means that an accused person cannot
be compelled to be a witness against himself and furnish evidence of self-incriminating
nature. Mr. Zico has been falsely implicated in the present case and has been
compelled to be a witness against himself.
21. In Union of India Vs. Bal Mukund and Noor Aga Vs. State of Punjab & Anr 21it was
held that "purported statements tendered by an accused while in custody cannot be
presumed to be his voluntary statement" and “if he is subjected to interrogation, he
must be informed in clear and unequivocal terms as to his right to silence”. In the
pertinent case there was no information to Mr. Zico in regard to his right to remain
silent. Also the fact that the NCB Officers conducted the search in absence of a
gazetted officer or a Magistrate supports the apprehension that the illegal search
conducted by the NCB officers was to falsely implicate Mr. Zico. Had it not been so
the NCB Officers would have conducted the search according to the provisions of S.50
of the NDPS Act.
22. S.5022 of the NDPS Act prescribes the safeguards to be followed before conducting
the personal search of a suspect. The compliance with the procedural safeguard
contained in the above provision is intended to protect a person against false
accusation and also to lend credibility to the search and seizure conducted by the
empowered officer. In Dilip v. State of M.P,23 and State of Rajasthan v. Parmanand24,,
the Supreme Court has held that, if the recovery takes place from the bag carried by the

19
INDIAN CONST. Art. 20(3)
20
INDIAN CONST. Art. 21
21
(2009) 12 SCC 161 and JT 2008 (7) SC 409
22
Narcotics,Drugs And Psychotropic Substances, 1985, S.50
23
Dilip v. State of M.P, (2007) 1 SCC 450
24
State of Rajasthan v. Parmanand(2014) 5 SCC 345

16
 accused – or, for that matter, even from the vehicle in which the accused was travelling
– and the search of the said bag/vehicle takes place along with the search of the accused,
compliance with S.50 of the NDPS Act is mandatory. The applicability of S.50 of the
NDPS Act, to the facts of the present case cannot, therefore, be gainsaid.
23. In Sikodh Mahto vs. State25it was held that the failure on the part of the NCB officers,
to proceed in accordance with S.50 of the NDPS Act vitiates the very search and seizure
of the said material. The impugned judgment and order on sentence passed were
quashed and set aside and the appellants were ordered to be released forthwith, unless
the requirement of their incarceration in any other case.

2. THERE HAS BEEN VIOLATION OF RIGHTS UNDER ARTICLE 21 OF THE

CONSTITUTION
24. Art.21 of the Kindian Constitution says that “No person shall be deprived of his life or
personal liberty except according to procedure established by law.” The expression
‘personal liberty’ includes ‘right to privacy’. A citizen has a right to safeguard his
personal privacy, plus, that of his family, education, marriage, motherhood, child
bearing, and procreation, among other matters.
"The right to be let alone" is how Lewis D. Bradies defined 'privacy' in 1890. While it
is moral and ethical for a person not to peep into others privacy, for the State it is a
sacrosanct constitutional obligation. The State can neither bug information about
political opponents like the infamous Watergate, secretly and selectively, nor can it,
like a prosecutor, collect material for investigation.
If it does so, it violates his right to privacy, to live with dignity and respect. Human
rights recognise that a person has to be protected from intrusions into his privacy.
Justice Frankfurter, in applying the 4th Amendment to the US Constitution, had said
that the privacy violations are required "to be condemned as inconsistent with the
concept of human rights enshrined in history and the basic constitutional documents..."
25. Telephone tapping refers to clandestinely listening or / recording a communication on
the telephone with the intention of getting information about others activities. ’ Phone
Tapping can only be done in an authorized manner with permission from the department
concerned. Nevertheless, if it is undertaken in an unauthorized and unlawful manner

25
Sikodh Mahto vs. State, AIR 2018 SC 2123

17
 then it is illegal and will result in prosecution of the person responsible for breach of
privacy.
26. Rule 419A of the Indian Telegraph Rules, 1951 states:
‘….interception of any message or class of messages under sub-section (2) of S. 526 of
the Indian Telegraph Act, 1885 shall not be issued except by an order made by the
Secretary to the Government of Kindia in the Ministry of Home Affairs in the case of
Government of Kindia and by the Secretary to the State Government in-charge of the
Home Department in the case of a State Government. In unavoidable circumstances,
such an order may be made by an officer, not below the rank of a Joint Secretary to the
Government of Kindia, who has been duly authorized by the Union Home Secretary or
the State Home Secretary…….
27. In State of Maharashtra v. Bharat Shanti Lal Shah, it was contended that ‘the
interception of conversation constitutes an invasion of an individual right to privacy but
the said right can be curtailed in accordance with procedure validly established by law.
Thus what the court is required to see is that the procedure itself must be fair, just and
reasonable and non-arbitrary, fanciful or oppressive’.27In the pertinent case there is no
documentary proof to prove that an order was made by the Secretary to the Government
of Kindia in the Ministry of Home Affairs for the interception of telephone
conversation. The interception of Mr. Zico’s telephonic conversation has not been
conducted in accordance with procedure established by law leading to breach of his
right to privacy.

26
Indian Telegraph Act, 1885, S. 5
27
State of Maharashtra v. Bharat Shanti Lal Shah(2008) 13 SCC 5 at page 28

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 PRAYER
In the light of the facts of the case, issues raised, arguments advances and authorities cited,
the Counsel for the appellant humbly prays before the Hon’ble Court to kindly adjudge and
declare that:

1. NOTIFICATION AUTHORIZING WIRE INTERCEPTION IS

UNCONSTITUTIONAL.
2. STATEMENT AMOUNTING TO CONFESSION UNDER SECTION 67 OF
NDPS ACT IS INADMISSIBLE IN EVIDENCE
3. THE TWIN CONDITIONS FOR BAIL UNDER SECTION 37 OF NDPS ACT
ARE CONSTITUTIONALLY INVALID
4. MR. ZICO’S RIGHTS PROVIDED UNDER ARTICLE 20(3) AND ARTICLE 21
OF THE CONSTITUTION ARE VIOLATED

And further pass any order that the Hon’ble Court may deem fit.
And for this act of kindness, the counsel on behalf of the appellant as duty bound shall
forever pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

_________________________________________

SD/-

COUNSEL FOR THE APPELLANT

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