Beruflich Dokumente
Kultur Dokumente
Who should have authority to declare an area to be disturbed- the State and Centre or only the
State? Whether terrorist act " is a precise definition to be read with Constitution application
order for J&K 1995?
This session aims to broaden the view of the legal fraternity on the scope, procedure and
applicability of the Armed Forces Special Powers Act .The debate on AFSPA has been raging
since long. It is always contested as to what has it achieved in disturbed areas, what is its
effect. While the morality and intention behind the legislation has always been debated upon, the
legal procedure always lags behind.
We wish to discuss the scope of S.4- Special Powers, S.5- Power of search.
The Section allows the armed forces personnel to use force for a variety of reasons. The army
can arrest anyone :
1.without a warrant under section 4(c)
2. Under section 4(d), the army can enter and search without a warrant to make an arrest or to
recover any property, arms, ammunition or explosives which are believed to be unlawfully kept
on the premises. This section also allows the use of force necessary for the search.
This is problematic and requires juxtaposition with the position of law in the CrPC for arrests.
We wish to discuss:
Firstly, the special procedure laid down under the act.
Secondly, the constitutionality of the Act with reference to the protection of Human Rights of
accused.
It is matter of concern that we as members of the law fraternity do not have an in depth
understanding of the functioning of the Act.
Through the session our primary aim is to educate the participants as to the procedure, burden of
proof and the general functioning of the Act.
The participants are supposed to focus on two keys issues which are as follows
Under the Arms Act, the magistrate is endowed upon powers that extend beyond the judicial
scope, e.g. Power of search and seize. The reasoning and rationale behind this must be examined
along with an analysis of its viability?
Another important aspect that needs to be discussed is that in order to prove the illegal
import/export of Arms, as party to the prosecution, what are the different kinds of evidences
required in such a scenario? Thus, how does one establish Smuggling of Arms?
Lastly, we wish to analyze the conviction rate under Arms Act been?
b.Narcotics
India had no legislation regarding narcotics until 1985. Cannabis smoking in India has been
known since at least 2000 B.C. Cannabis and its derivatives (marijuana, hashish/charas and
bhang) were legally sold in India until 1985, and their recreational use was commonplace.
Consumption of cannabis was not seen as socially deviant behaviour, and was viewed as being
similar to the consumption of alcohol. Ganja and charas were considered by upper class Indians
as the poor man's intoxicant, although the rich consumed bhang during Holi. The United
States began to campaign for a worldwide law against all drugs, following the adoption of
the Single Convention on Narcotic Drugs in 1961. However, India opposed the move, and withstood
American pressure to make cannabis illegal for nearly 25 years. American pressure increased in
the 1980s, and in 1985, the Rajiv Gandhi government succumbed and enacted the NDPS Act,
banning all narcotic drugs in India.
The Narcotic Drugs and Psychotropic Substances Act, 1985, commonly referred to as the NDPS
Act, is an Act of the Parliament of India that prohibits a person to produce/manufacture/cultivate,
possess, sell, purchase, transport, store, and/or consume any narcotic drug or psychotropic
substance. The Act extends to the whole of India and it applies also to all Indian citizens outside
India and to all persons on ships and aircraft registered in India.
Under one of the provisions of the act, the Narcotics Control Bureau was set up with effect from
March 1986. The Act is designed to fulfill India's treaty obligations under the Single Convention
on Narcotic Drugs, Convention on Psychotropic Substances, and United Nations Convention Against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances .
One of the important features of the act is that unlike the IPC, the burden of proof for narcotics
cases always lie on the Defence and not on the prosecution. So, the reasonableness of this
principle of burden of proof is to be analyzed.
Another striking facet of the act has not been explained as yet under the guise of legislative
intent and that is, the Extremism under the NDPS Act The NDPS Act provides for completely
extreme scenarios for both the Prosecution and the Defence. While on one hand an accused is
charged under the act on the mere possession of drugs whether voluntarily or involuntarily, on
the other hand, The defence can easily play with the tiniest procedural flaw and the accused can
be set free.
Reasonability of such extremism and whether the purpose of the act is achieved by this is to be
found out.
1. Adv. Aditya WadhwaAdvocate from the Delhi High Court. Known for his expertise in criminal law,He will be
talking on the Official Secrets Act. Recent feather to his cap is the case of the Impeachment of a
judge of the High Court of Madhya Pradesh, Adv. Wadhwa has his way with criminal law.
2. Adv. Sudeep PasbolaAdvocate from the Bombay High Court. He has dealt with 6 of the Bombay Bomb Blast cases
and is a renowned name in the field of Criminal Law. His forte is Arms Act and will deliver a
session on the same.
3. Adv. Renita MenezesLawyer representative of The International Justice Mission, will be amidst us for the session
on "Child Rights with reference to POCSO Act." Renita began her legal career at Majlis, a NGO
providing legal assistance to victims of domestic violence.
Since 2007 Renita has represented International Justice Mission (IJM) in legal cases at the
Sessions Courts in Mumbai and Thane as well as in Bombay High Court. Through her career she
has assisted public prosecutors in securing 28 convictions of sex trafficking perpetrators. Renita
has trained more than 11,000 Judges, Magistrates, Public Prosecutors and Police personnel in
procedures related to the Immoral Traffic (Prevention) Act, 1956, Protection of Children From
Sexual Offences Act, 2012, Juvenile Justice (Care and Protection of Children) Act, 2015 and
Indian Penal Code.
4. Adv. Harshavardhan SalgaokarAdvocate from the Bombay High Court, will deliver the session on The Narcotic Drugs and
Psychotropic Substances Act: Smuggling. Adv. Salgaokar has an upper hand with the Criminal
Minor Acts .Having assisted a Public Prosecutor in the Bombay courts, at the same time dealing
with narcotics cases himself, He will enlighten us with both the sides of a case.
5. Major Gen. Rajinder KumarAn alumnus of the ILS Law College, Pune. He is the country head of the JAG branch of the
Armed Forces, headquartered at Delhi. He will deliver a session on The laws related to the
Armed Forces with special reference to AFSPA (Armed Forces Special Powers Act).