TEAM CODE:

UNITED WORLD SCHOOL OF LAW, KARNAVATI UNIVERSITY

INTRA MOOT COURT COMPETITION 2019

BEFORE THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF:

WRIT PETITION NO. _____OF 2019

MR. RAMBO …………………………………………………………..APPELLANT

UNION OF INDIA……………………………………………………..RESPONDENT

WRIT JURISDICTION

UNDER ARTICLE 32 OF THE CONSTITUITON OF INDIA

MEMORIAL ON BEHALF OF THE APPELLANT

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TABLE OF CONTENTS

List of abbreviations .................................................................................................................. 3

Index of Authorities ................................................................................................................... 4

Statement of jurisdiction ............................................................................................................ 5

Statement of facts ....................................................................................................................... 6

BACKGROUND ................................................................................................................... 6

REGISTRATION OF FIR ..................................................................................................... 6

MEDICAL EXAMINATION ................................................................................................ 6

FILLING OF BAIL APPLICATION .................................................................................... 6

CROSS – EMAMINATION .................................................................................................. 6

FILING OF PIL AND SUPREME COURT HEARING ....................................................... 7

Statement of issues ..................................................................................................................... 8

1. Whether Section 29 and Section 30 of the POCSO, 2012 are in violation of

fundamental rights of Mr. Rambo? ...................................... Error! Bookmark not defined.

2. In alternative whether Mr. Rambo can be permitted to conduct a voluntary Polygraph/

Narco-analysis/Brain Mapping Test in order to prove his innocence?Error! Bookmark
not defined.

Summary of Arguments ............................................................................................................. 9

1. Section 29 and Section 30 of the POCSO, 2012 are in violation of fundamental rights
of Mr. Rambo. ........................................................................................................................ 9

2. In alternative Mr. Rambo can be permitted to conduct a voluntary Polygraph/ Narco-

Analysis/ Brain mapping test to prove his innocence. ........................................................... 9

Arguments Advanced............................................................................................................... 10
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I. Section 29 and Section 30 of POCSO ACT, 2012 are in violation of fundamental

rights of Mr. Rambo. ............................................................................................................ 10

II. Mr. Rambo can be permitted to conduct a voluntary Polygraph/ Narco – analysis/
Brain mapping test in order to prove his innocence. ........................................................... 13

Prayer ....................................................................................................................................... 17
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LIST OF ABBREVIATIONS

ABBREVIATIONS WORDS

& And

DDT Deception Detection Test

IPC Indian Penal Code

FIR First Information Report

IJMR Indian Journal of Medical Research

UOI Union of India

¶ Paragraph
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INDEX OF AUTHORITIES

SUPREME COURT CASES

1. Dhanwantrai Balwantrai Desai v. State of Mahrashtra,1964(1) Cr. J. 437(SC) - pg 10

2. Rubinder Singh v Union of India, AIR 1983 SC 65. – pg 11, 12

3. State of Punjab v. Baldev Singh & ors, MANU/SC/0981/1999 – pg 12

4. Yogesh Maral v State of Maharashtra, 2016 (1) BomCR (Cri) 474 – pg 12

5. Dinesh Dalmia v. State, Crl. R.C. No. 259 of 2006 – pg 13

6. Santokben Sharmabhai Jadeja v. State of Gujarat, MANU/SC/1365/2007 – pg 15

7. Rojo George v. Deputy Superintendent of Police, AIR 1953 SC 131 – pg 15

8. Selvi v. State of Karnataka, MANU/SC/0325/2010 – pg 16

SUPREME COURT OF CANNADA

1. R v. Oakes, [1986] 1 SCR 103 – pg 11

STATUTES REFERRED

1. POCSO ACT,2012

2. The Constitution of India, 1950

BOOKS REFRRED

1. Dr. J.N. Pandey, Constitutional law of India (55th edition)

ARTICLES

1. CCSLNLUJ, constitutionality of reverse onus clauses under POCSO Act – pg 11, 12

2. IJMR 2011 Jul;134(1): 4-7

DATABASE REFREED

1. www.manupatra.in
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STATEMENT OF JURISDICTION

“The Appellants humbly submit this memorandum, approaching the Hon’ble Supreme Court
under Article 32 of the Constitution of India, 1950.
The memorial herein submitted sets forth the facts, contentions and arguments in the present
case.”
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STATEMENT OF FACTS

BACKGROUND

Chintu a boy aged 11 years went to the private classes for mathematics to Mr. Rambo . On
12.01.2018 upon the returning from his tuition, Chintu who was then crying loudly alleged
that between 6:00 – 7:00 pm Mr. Rambo had inserted a pencil in his anus. Chintu’s parents
rushed to Mr. Rambo’s house, Mr. Rambo was taken away to Police station with chintu and
his parents.

REGISTRATION OF FIR

Police recorded the statements of chintu’s parents, Mr. Hari and Mr. Raja (Who had seen
chintu leaving for home crying) . FIR was registered against Mr. Rambo under section 6 of
Protection of Children from Sexual Offence Act, 2012 and section 377r/w Section511 of IPC,
1860. And was taken under Custody and has since been in jail.

MEDICAL EXAMINATION

Medical Examination of Chintu conducted in Superman Medical Hospital stated that “There
are no signs which suggest insertion of penis like object into anal cavity. Certain reddishness
observed around the anal cavity”. Charge sheet was made on 10.03.2018 for the offence
punishable under section 377 and Section 511 of the IPC, 1860 and Section 6 of POCSO Act
in the Court of the Ld. Additional Session judge, Delhi. Which included the recorded
statements of chintu, his mother, his father, the two neighbors.

FILLING OF BAIL APPLICATION

Mr. Rambo filled a bail application along with request to prosecution agency to conduct the
polygraph/Narco-analysis/Brain mapping Test in order to rebut the presumption against
himself . The Ld. ASJ under section 29 with 30 of POCSO act rejected the bail application .
And also dismissed the application seeking his tests , stating they were inadmissible .

CROSS – EMAMINATION

Chintu narrated that he had failed to do his homework as given by Mr. Rambo on 11.01.2018.
Chintu Parents denied having any altercation with Mr. Rambo regarding fee. Also according
to the register seized during the investigation, Chintu’s parents had not paid fee. Mr. Rambo
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said that he had slapped Chintu as he had not done the homework given to him.

FILING OF PIL AND SUPREME COURT HEARING

Mr. Rambo filed a PIL which challenged the constitutionality of Section29 & 30 of POCSO
act, 2012. Also requested the Hon’ble court to conduct his Polygraph/Narco-analysis/Brain
Mapping Test in order to prove his innocence.
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STATEMENT OF ISSUES

I. Whether Section 29 and Section 30 of the POCSO, 2012 are in violation of

fundamental rights of Mr. Rambo?

II. In alternative whether Mr. Rambo can be permitted to conduct a voluntary Polygraph/
Narco-analysis/Brain Mapping Test in order to prove his innocence?
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SUMMARY OF ARGUMENTS

1. SECTION 29 AND SECTION 30 OF THE POCSO, 2012 ARE IN VIOLATION OF

FUNDAMENTAL RIGHTS OF MR. RAMBO.

The counsel humbly submits before the honorable court that the fundamental
rights of Mr. Rambo are violated by the section 29 and 30 of POCSO. Article 14
and 21 guaranteed under the constitution are being infringed upon by not
providing equal opportunity & equal protection of law to prove his innocence. The
court has a duty to prove the guilt of the accused beyond reasonable doubt which
has been presumed in the first place. The counsel requires the court to set free Mr.
Rambo and remove all the allegations.

2. IN ALTERNATIVE MR. RAMBO CAN BE PERMITTED TO CONDUCT A VOLUNTARY

POLYGRAPH/ NARCO-ANALYSIS/ BRAIN MAPPING TEST TO PROVE HIS INNOCENCE.

The counsel humbly submits before the honorable court that Mr. Rambo should be
allowed to take DDT’s as it is not violating article 20(3) of the constitution as it is
done on voluntary basis. It is most clinically used method to extract and trace the
information out of patients or accused person subconscious mind. It was observed
that when after exhausting all the possible alternatives there was no possibility to
find out the truth or nab the criminals and it is found by the prosecuting agency
that there is no further headway of investigation, they are absolutely in dark then it
is necessity of such tests. The counsel requires the court should allow Mr. Rambo
to take the test and record the result.
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ARGUMENTS ADVANCED

I. SECTION 29 AND SECTION 30 OF POCSO ACT, 2012 ARE IN VIOLATION OF

FUNDAMENTAL RIGHTS OF MR. RAMBO.

1. According to section 29 of POCSO ACT, where a person is prosecuted for

committing or abetting or attempting to commit any offence under section 3,
5, 7 & 9 of this act & the court shall presume the same unless the contrary is
proved1.

2. The above section gives a radical shift from presumption of innocence to

presumption of guilt.

3. According to section 30(1) of POCSO ACT, says that in any prosecution for
any offence under this act which requires a culpable mental state on the part of
the accused, the special court shall presume the existence of the mental state
but it shall be a defense for the accused to prove the fact that he had no such
mental state with respect to the act charged as an offence in the prosecution2.

4. According to section 30(2) of POCSO ACT, a fact is said to be proved only

when the special court believes it to exist beyond reasonable doubt and not
merely when its existence established by a preponderance of probability.

5. In the case of Dhanwantrai Balwantrai Desai v. state of Maharastra3:

“Presumptions are rules of evidence & does not conflict with the presumptions
of innocence of the accused, to prove its case, beyond all reasonable doubt,
still remains intact.”

6. The sections violate the ‘Right to Equality’ as envisaged under Article 14 of

the Constitution. Right to equality is one of the most basic fundamental rights
as provided in the Constitution and it encompasses both- Right to equality and

1
The Protection of Children from Sexual Offences Act, 2012

2
Ibid

3
Dhanwantrai Balwantrai Desai v. State of Mahrashtra,1964(1) Cr. J. 437(SC)
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equality of opportunity4. The equals have to be treated equally not only under
substantive laws but also procedural laws.

7. The differentiation can only be made on the basis of intelligible differentia and
the differentiation should have a nexus with the object of the legislation5.

8. Article 14 strikes at arbitrariness and unreasonable laws and therefore the set
of presumptions are violative of the same.

In R v Oakes6, the Court developed a two-fold test to assess the

reasonableness in classification:

a. The object of the legislation and classification should have a rational nexus.

b. Test of proportionality where there should be rationality, minimum impairment

of the right of freedom and proportionality with regards to means and effect7.

9. Even if the object of the statue is to secure justice and peace in the society or
to secure interests of the public at large, the Rule of Law demands that no
person can be subjected to harsh or discriminatory treatment 8. Even if the
classification is valid in the interests of the public, the effect on the innocent
accused should be minimal and should not cause grave injustice to the
accused.

10. The sections violate the ‘Right to life and personal liberty’ under Article 21 of
the Constitution. The presumptions not only violate the fair procedure
established by law but also violate the Right to a fair trial.

11. Article 14 pervades Article 21 and something which is not a valid procedure
under Article 14 will automatically not be a fair procedure under Article 21. It
is a settled law that the procedure established by law that procedure, as

4
The Constitution of India
5
CCSLNLUJ, constitutionality of reverse onus clauses under POCSO Act, ¶ 8

6
R v. Oakes, [1986] 1 SCR 103.

7
Ibid

8
Rubinder Singh v Union of India, AIR 1983 SC 65.
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interpreted by the Hon’ble Supreme Court, is in context of due process of law

which includes the presumption of innocence as an integral part of it. The
procedure established by law which can be used to curtail the freedom under
this section has to be fair, just and reasonable, and non-arbitrary9.

12. In the case of State of Punjab v. Baldev Singh & ors.10:

"Legitimacy of judicial process may come under cloud if Court is seen to

condone acts of lawlessness conducted by investigating agency during search
operations."

Through this it can be inferred that the accused through Article 21 of the
constitution inherit the right to free and fair trial and denial causes the injustice
to the accused.

13. Section 29 and 30 of POCSO Act are not in consonance with the ‘procedure
established by law.’

Section 29 states that the Court ‘shall’ presume that the offences under section
3, 5, 7 and 9 have been committed by the accused. The word ‘shall’ as
opposed to ‘may’ puts an obligation on the Courts to presume that the accused
has in fact committed the offence11.

14. In the case of Yogesh Maral v. state of Maharashtra:

“The Court stated that the ambit of Section 29 is quite wide and due care and
precaution shall be used before applying it to any of the cases hinted towards
its unconstitutionality. The Court further stated that a plain reading of Section
29 would suggest that it is beyond the normally accepted principles of
criminal jurisprudence12”.

9
Rubinder Singh v UOI, AIR 1983 SC 65.

10
State of Punjab v. Baldev Singh & ors, MANU/SC/0981/1999

11
CCSLNLUJ, constitutionality of reverse onus clauses under POCSO Act, ¶ 20

12
Yogesh Maral v State of Maharashtra, 2016 (1) BomCR (Cri) 474.
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15. Through the above mentioned facts it can be inferred that the accused was not
given a proper opportunity or chance to prove his innocence and was also
denied to conduct the Deception Detection tests.

16. The doctor who examined the child did not properly investigated the actual
reason for the causation of the reddishness in the anal cavity as there may be
probability that the reddishness has occurred due to other reasons and not by
the act caused by the accused.

17. The statements of the child were the solo evidence and were given the most
importance in the case. If we analyze this, this is not the equality as ensured by
the laws as there is more protection given to children in comparison of the
accused.

18. There is a possibility that the child was not saying the truth and his parents had
tutored him to say in response to the issue of delay in fees. It should be noted
that it was a private tuition and maybe the parents were unable to afford the
fees of that.

19. The provisions of POCSO are in contravention of the fundamental right of Mr.
Rambo as it is on the accused to prove his innocence by proving that he did
not have culpable mental state at the time of the offence.
II. MR. RAMBO CAN BE PERMITTED TO CONDUCT A VOLUNTARY POLYGRAPH/ NARCO
– ANALYSIS/ BRAIN MAPPING TEST IN ORDER TO PROVE HIS INNOCENCE.

1. Narco analysis test involves the intravenous administration of a drug (such as

sodium pentothal, scopolamine and sodium amytal) that causes the subject to
enter into various stages of anesthesia. In the hypnotic stage, the subject
becomes less inhibited and is more likely to divulge information, which would
usually not be revealed in the conscious state and the Narco Analysis test is
conducted only with the consent of the patient13.

2. In Kathua case14, Dr. Dinesh Pandey said that it is difficult to consider it as a

100 per cent guaranteed truth extraction method but this is the most clinically

13
IJMR 2011 Jul;134(1): 4-7

14
India today, https://www.indiatoday.in/education-today/gk-current-affairs/story/what-is-the-narco-analysis-
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used method to extract and trace the information out of patients or accused
person subconscious mind.

3. In the case of Dinesh Dalmia v. State15:

In this court conveyed that investigating agency is required to complete

investigation within a reasonable time, if not, the benefit of delay is given to
the accused.

4. Polygraph test is called a lie detector test. The theory behind polygraph tests is
that a guilty subject is more likely to be concerned with lying about the
relevant facts about the crime, which in turn produces a hyper-arousal state
which is picked up by a person trained in reading polygraph results.
Measurement of hyper-arousal state is based on a number of parameters such
as heart rate, blood pressure, respiratory rate, skin conductance and
electromyography16.

5. Brain Mapping measures the changes in the electrical field potentials

produced by the sum of the neuronal activity in the brain by means of
electrodes placed on the surface of the skin covering the head and face. The
changes directly related to specific perceptual or cognitive events are called
event-related potentials17. In simple words, it is based on the finding that the
brain generates a unique brain-wave pattern when a person encounters a
familiar stimulus. Commonly used method in India is called as Brain
Electrical Activation Profile test, also known as the ‘P300 Waves test’18.

6. The DDT’s should be conducted with consent of the accused & be done on
voluntarily basis.

test-that-the-kathua-rape-case-accused-are-asking-for-1213937-2018-04-17

15
Dinesh Dalmia v. State, Crl. R.C. No. 259 of 2006.

16
Supra 13

17
Lefebvre CD, Marchand Y, Smith SM, Connolly JF. Use of event-related brain potentials (ERPs)
to assess eyewitness accuracy and deception. Int J Psychophysiol. 2009;73:218–25[Pub Med] [Google
Scholar]
18
Appelbaum PS. Law & psychiatry: the new lie detectors: neuroscience, deception, and the
courts. Psychiatr Serv. 2007;58:460–2. [Pub Med] [Google Scholar]
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7. In the case of Santokben Sharmabhai Jadeja v. State of Gujarat:

"The protection guaranteed under Article 20(3) could not be said to have
violated on merely conducting/performing of a Narco Analysis Test and Brain
Mapping Test on the accused19."

"Conducting/performing of the aforesaid tests is a part of investigation and

for the investigation by the Investigating Agency the consent of the accused is
not required."

It was observed that when after exhausting all the possible alternatives there
was no possibility to find out the truth or nab the criminals and it is found by
the prosecuting agency that there is no further headway of investigation, they
are absolutely in dark then it is necessity of such tests. On the basis of this
revelation if investigating agency finds some clues or records, some statement
which helps or assists for further investigation of crime then there will not be
any violation of Article 20(3) of constitution of India

8. As mentioned in the above case the DDT’s are the part of the investigating
process and does not violate the right guaranteed under article 20(3).

9. In the case of Rojo George v. Deputy Superintendent of Police:

While allowing the Narco analysis test Court is of the opinion that in present
day the criminals started to use very sophisticated and modern techniques for
committing the crime. So the conventional method of investigation and
questioning to the criminals will not be successful for solution and there is
need to utilize some new techniques such as polygraph, brain mapping and
Narco analysis. Court also said that when such techniques used in the
presence of expert then it can’t be raised that the investigating agencies
violated the fundamental human rights of any citizen of India20.

10. The DDT’s are useful to know the concealed information related to the crime.
This information, which is known only to self, is sometimes crucial for

19
Santokben Sharmabhai Jadeja v. State of Gujarat, MANU/SC/1365/2007

20
Rojo George v. Deputy Superintendent of Police, AIR 1953 SC 131
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criminal investigation. The DDT’s have been used widely by the investigating
agencies.

11. In the case of Selvi v. State of Karnataka21:

The scientific techniques were softer alternatives to the regrettable use of third
degree methods by investigators and violated right against self incrimination
in Article 20(3) of the constitution. The state argued that it was desirable that
crime should be efficiently investigated particularly sex crimes as ordinary
methods were not helpful in these cases. So this issue was between ‘efficient
investigation’ and ‘preservation of individual liberty’22.

12. Mr. Rambo should be allowed to conduct the test as he is willing and it will
also take investigation further and will help him prove his innocence.

21
Selvi v. State of Karnataka, MANU/SC/0325/2010

22
Dr. J.N. Pandey, Constitutional Law of India (55 th edition) pg 262, 263
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PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and authorities
cited, the Council on behalf of the Appellant humbly pray before the Hon’ble Court that it
may be pleased to adjudge and declare that:

1. Section 29 and Section 30 of the POCSO, 2012 be declared unconstitutional as

it is violating fundamental rights of Mr. Rambo.

2. Mr. Rambo should be permitted to conduct Polygraph/ Narco analysis/ Brain

Mapping in order to prove his innocence.

Or pass any other order that the court may deem fit in the light of justice, equity and good
conscience.

And for this act of kindness of Your Lordships the Appellant shall as duty bound ever pray

Sd/-________________

COUNSEL FOR APPELLANT