NATIONAL CONFERENCE on

"THE UNEXPLORED CRIMINAL LAW"

20th-21st January,2017

INDIAN LAW SOCIETY's

ILS LAW COLLEGE
Law College Road,
Pune 411004 Maharashtra, India.
Tel: 020-25656775, 020-25656780
Email: ilslaw@ilslaw.in | Web: www.ilslaw.edu

INDIAN LAW SOCIETY, PUNE

The Indian Law Society was established in 1923 as a Public Charitable Trust registered under the
Societies Registration Act. It is a non-profit organization established with the sole purpose of
imparting legal education. The Society is a voluntary association of persons, who came together
with a pledge to launch courses on law, formal an informal, where law and legal doctrines are
taught with social utility, purpose, impact and social relevance. The founder members of the
Indian Law Society were great legal celebrities like Sir Narayanrao Chandavarkar, Shri J. R.
Nanasaheb Gharpure, Diwan Bahadur and P. B. Shingane. Indian Law Society established ILS
Law College in 1924, with a view to providing facilities for the study of law. Establishment of
the Law College by the Indian Law Society was indeed a turning point in Indian Legal
Education, particularly in respect to academic excellence, social relevance and professional
competence. Imaginative realignment of written law or the hard law with a view to reorient them
with the Indian social milieu has always been the strength of the Indian Law Society. The ILS
Law College, during its 90 years of existence, has acquired the reputation of being a premier
institution imparting brilliant and quality legal education in the country.

ILS LAW COLLEGE, PUNE

Established in 1924, ILS Law College is one of the oldest law schools in the country and has
been playing a pioneering role in legal education and scholarship. Since its inception, ILS Law
College has produced some of the most highly regarded contributors in the field of law. Three
Chief Justices of the Supreme Court, Justice P. B. Gajendragadkar, Justice Y. V. Chandrachud,
Justice E. S. Venkataramaiah, Former Governor of Maharashtra K. M. Reddy, Former Defence &
Finance Minister and First Chief Minister of Maharashtra Y. B. Chavan, Former Minister of
Commerce Mohan Dharia, Former Chief Ministers of Maharashtra, Sushil Kumar Shinde and
Vilasrao Deshmukh, all received legal education from ILS Law College. Completing 90 years of
its existence, ILS Law College, with its illustrious history and heritage, has contributed
immensely to the growth of legal profession and has upheld its tradition of producing
meritorious legal scholars who dedicate themselves to public service and reform. The
generations of distinguished legal luminaries who have been nurtured by this unique institution
have made a seminal contribution globally to evolution of the legal fraternity. ILS Law College
has been accredited with A+ by NAAC.

CRIMINAL LAW CENTRE

The Centre was established in the year 2015. The objective of the centre is to contribute towards
academic activities in the criminal justice system. The Centre caters to form a knowledge based
platform in a formal and informed manner with meaningful contribution to practical needs. It is a
platform for students to have discussions in the field of criminal law. The centre in its small
tenure has conducted various sessions on not just the basics of criminal law but also the recently
registered criminal cases. Under the centre's assistance the students also published research
articles in the college law journal.
The centre plans to begin the new year by organizing a Two-Day National Conference on the
theme named "THE UNEXPLORED CRIMINAL LAW" on the 20th-21st January,2017.

CONCEPT AND THEME OF THE CONFERENCE

Criminal law and Criminal justice system is the most debated and fascinating aspect of any legal
system. The state always faces complexities in defining and solving social problems created in
ever changing society. Traditional criminal law many a times is inadequate to address changing
criminal patterns. Special legislations enacted to address these new issues are rarely debated and
deliberated. Therefore, it is of imperative concern of academicians, research scholars, students,
lawyers and judges to understand and deliberate on few unexplored aspects of criminal law.
The conference will be a blend of presentations by students and by people experienced in the
field of law. As these topics are of immense importance in the contemporary scenario of Law, the
conference will provide an open platform to the participants and the speakers to put forth their
views, opinions and their experiences.
The main objective behind this conference is to enlighten the students about the aspects of
criminal law which are not usually covered in classrooms but has a lot of importance in practical
application. These topics will also help in widening the horizons of students to have a better
understanding of what entails the study of criminal law.
During the course of the two days of the conference of "The Unexplored Criminal Law", the
following themes will be discussed and debated upon:
1.Decoding The Official Secrets Act, 1923.
2.Laws Relating to Armed Forces with special reference to the AFSPA.
3.Laws Relating to Arms and Drugs
4.Rights of Children with special reference to the POCSO Act.
5.Investigative Agencies beyond the Criminal Procedure Code.

INTRODUCTION TO THE THEMES

1.Decoding The Official Secrets Act, 1923;
The official Secrets act is an Act that has been inherited from the British era. It is our anti spying
and espionage statute and its main aim is to prevent national secrets from falling into the hands
of wrong people.
However, eminent jurists have time and again claimed the Act to be a draconian statute because
of the fact that it is marked by ambiguity, opaqueness and non-transparency. The preindependence objective of the Act primarily was to prevent any instances of revolts and uprising
among the Indians. Post independence the aims and objectives of the Act has radically changed.
However, this controversial Act is criticized for its vagueness in defining what official secrets is
and also its overlap with the Right to Information which is an important part of any democratic
system of governance. With the evolution of Right to Information in the present democratic
scenario, Official Secrets is in complete contravention to the liberty that RTI grants. The act
makes Secrecy an acceptable norm which renders the entire idea of democracy to be infructuous.
Following are the two points of conflict emanating under this Act:
Firstly, the act fails to give a concrete and specific definition of the term "Official Secrets".
The definition has to be implied from the 19 sections of the act. Thus, it leads to variation in the
definition and subsequently, arises confusion in its application. There is an absence of a proper
definition clause.
Secondly, with the evolution of Right to Information in the present democratic scenario, Official
Secrets is in complete contravention to the liberty that RTI grants. In a democracy such an Act
makes secrecy the norm and dissemination of information an exception.
Also, the proposal to get the MPISA(Maharashtra Protection of Internal Security Act)in
Maharashtra deserves a mention.
Participants are expected to study and review the aforementioned points.

2. Laws Relating to Armed Forces with special reference to the AFSPA.

In 1953, the Assam Maintenance of Public Order (Autonomous District) Regulation Act was
passed. It was applicable to the then Naga Hills and Tuensang districts. It empowered the
Governor to impose collective fines, prohibit public meetings and detain anybody without a
warrant.
On 22 May 1958, the Armed Forces (Assam-Manipur) Special Powers Ordinance was passed. A
bill was introduced in the Monsoon session of Parliament that year. Parliament approved the
Armed Forces (Assam- Manipur) Special Powers Act with retrospective from 22 May 1958.
Jammu and Kashmir has its own Disturbed Areas Act (DAA) a separate legislation that came
into existence in 1992. After the DAA for J-K lapsed in 1998, the government reasoned that the
state can still be declared disturbed under Section(3) of AFSPA.
Interestingly, all of the actions allowed under this act can be taken by an officer, the only
requirement being that he is of opinion
Whether the definition is subjective or objective? It does not describe the circumstances under
which the authority would be justified in making such a declaration. Does it need to be changed?

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.

3.Laws Relating to Arms and Drugs: Smuggling

Smuggling is-the illicit/ illegal import or export of goods. One of the biggest smuggling
business in India is that of Arms and Drugs. There are two legislations for arms and drugs
respectively, namely The Arms Act,1959 and the Narcotic Drugs and Psychotropic Substances
Act,1985.
The Arms Act and the Narcotic Drugs and Psychotropic Substances Act, although important
pieces of specialized criminal legislation are generally sidelined and not discussed on a public
platform. Cases under these Acts are being registered in large numbers and thus it is imperative
that we understand the concepts of procedure , Burden of proof , acquisition and possession
under these Acts.
a. Arms
The Arms act 1959 is a facsimile of the Arms act 1877 enacted by the British with some
amendments. The arms act of 1877 was a revolutionary law as for the first time the arms their
usage and ownership was legalized. The act as enforced by the English greatly restricted the
issue of arms to common Indians and licenses were generally issued only to the British, affluent
Indian like Maharajah's and Anglo Indians.
The Arms Act, 1959 governs matters related to acquisition, possession, manufacture, sale,
transportation, import and export of arms and ammunition. It defines a specific class of
prohibited arms and ammunitions, restricts their use and prescribes penalties for contravention
of its provisions.

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.

4.Rights of Children with special reference to the POCSO Act.

Fifty three percent of children in India face some form of child sexual abuse. The need for
stringent law has been felt many times. Child sexual abuse was prosecuted under the following
sections of Indian Penal Code:
I.P.C. (1860) 375- Rape
I.P.C. (1860) 354- Outraging the modesty of a woman
I.P.C. (1860) 377- Unnatural offences
However, the IPC could not effectively protect the child due to various loopholes like:
IPC 375 doesn't protect male victims or anyone from sexual acts of penetration other than
"traditional" peno-vaginal intercourse.
IPC 354 lacks a statutory definition of "modesty". It carries a weak penalty and is a
compoundable offence. Further, it does not protect the "modesty" of a male child.
In IPC 377, the term "unnatural offences" is not defined. It only applies to victims penetrated by
their attacker's sex act, and is not designed to criminalize sexual abuse of children.
The new Act provides for a variety of offenses under which an accused can be punished. It
recognizes forms of penetration other than peno-vaginal penetration and criminalizes acts of
immodesty against children too. The act is gender-neutral. With respect to pornography, the Act
criminalizes even watching or collection of pornographic content involving children. The Act
makes abetment of child sexual abuse an offence. It also provides for various procedural
reforms, making the tiring process of trial in India considerably easier for children. The Act has
been criticized as its provisions seem to criminalize consensual sexual intercourse between two
people below the age of 18. The 2001 version of the Bill did not punish consensual sexual
activity if one or both partners were above 16 years.
The following points of interest will be dealt with in the conference:
1.The Presumption Of GuiltS.29 provides that any person prosecuted under this act shall be presumed to be guilty. This is
completely contrary to the basic rule of Criminal Jurisprudence of presumption of innocence
until proven guilty.
2. S.44 mandates the proper monitoring of the implementation of the act by the NCPCR/SCPCR
(National commission for protection of child rights/ State commission). What is the rate of
success?
To what extent has the practical execution of this act with regards to conviction been successful?

5.Investigative Agencies beyond the Criminal Procedure Code.

While the Code of Criminal Procedure provides for the process and procedure for investigation
of all criminal cases in general, there are other investigative agencies in our country which play a
major role in crime solving.
Special Investigation Teams are set up time and again to specially focus on a particular case or
issue so as to clearly unfold all the information related to it. Their goal is to ensure that the
criminal law is applied appropriately to police conduct, as determined through independent
investigations, increasing public confidence in the police services.
The Central Bureau of Investigation (CBI) is the foremost investigative police agency in India,
an elite force which plays a role in public life and ensuring the health of the national economy.
The CBI is involved in major criminal probes, and is the Interpol agency in India. National
Investigation Agency (NIA) is a central agency established by the Indian Government to combat
terror in India. It acts as the Central Counter Terrorism Law Enforcement Agency. The agency is
empowered to deal with terror related crimes across states without special permission from the
states.
The role of investigating agencies has been a bone of contention in the recent past. While on the
one hand the victims demand an SIT be set up for every high-profile offense that is committed,
from murder to corruption. On the other hand, central agencies such as the CBI are often
criticized as not being independent and often puppets of the regime of the day. The participants
of this session should aim to highlight some of these agencies and the role they play in the
current scenario where agencies often have overlapping jurisdictions and sometimes conflicting
opinions on the same cases.
Special focus must be given to the following issues:
Firstly, keeping in mind the hierarchy of these agencies as well as the severity of the case at hand
how does transfer of cases among these agencies take place?
Secondly, the participants must clearly elucidate the different jurisdictions of investigative
agencies on Central and State level.
The third issue that must be addressed is that while the Police is a subject of State List, The CBI
and investigative agencies a subject of Union List and Criminal Procedure falls under the
Concurrent List, what extent does the degree of power exercised by them vary?

OUR PROSPECTIVE RESOURCE PEOPLE

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).