Moot memorial on S. 374 (2) OFCR.P.C. AND S. 101 OF J.J ACT, Study Guides, Projects, Research of Mock Trial and Moot Court

Download Moot memorial on S. 374 (2) OFCR.P.C. AND S. 101 OF J.J ACT and more Study Guides, Projects, Research Mock Trial and Moot Court in PDF only on Docsity! The Inter-Class Moot court ICFAI LAW SCHOOL Internal Moot Court Exam Before THE HON’BLEHIGH COURT FOR THE STATE OF GAZEL AT: ZAMBAI CASE SEEKING UNDER S. 374 (2) OF CR.P.C. AND S. 101 OF J.J ACT MEMORIAL ON BEHALF OF THE RESPONDENT Ravi…...................................................................Appellant V/s State of Gazel...............................................................Respondent M OST R ESPECTFULLY S UBMITTED BEFORE THE H ON ’ BLE J UDGE OF T HE H IGH C OURT OF J UDICATURE FOR THE STATE OF G AZEL AT ZAMBIA . MEMORANDUM ON BEHALF OF RESPONDENT And Filed By The Counsel For The Respondent. Name: Divya Nimbalkar Enrolment No: Batch: The Inter-Class Moot court [MEMORIAL FOR THE RESPONDENT] Page II Table of Contents Index of Abbreviations...........................................................III Index of Authorities..............................................................IV Cases...............................................................................................................IV Articles.............................................................................................................IV Statute...............................................................................................................V Statement of Jurisdiction........................................................VI Statement of Facts................................................................VII Issues Presented....................................................................IX Summary of Arguments..........................................................X Arguments Advanced............................................................11 I. Whether the punishment given to accused is valid or not?........................11 II Whether the crime is heinous to consider a juvenile as an adult?..............11 A. The appellant had mens rea to commission the crime.................................................................11 B. Is the tenure of his punishment justifiable..............................................................................14 III. Whether the appeal is maintainable before the honorable HC of Ghazel? 15 A. The offence committed is a heinous offence..............................................................................15 B. When is a child tried as an adult?..............................................................................................16 Prayer....................................................................................18 The Inter-Class Moot court [MEMORIAL FOR THE RESPONDENT] Page V  Juvenile justice: securing the rights of children during 1998 - 2008 Ved Kumari  Shifting Epistemology of Juvenile Justice in India by Shailesh Kumar  Handbook for Advocates working with Children in Conflict with Law in India. STATUTES  The Juvenile Justice Act (Care and Protection of Children) Act, 2015  The Narcotic Drugs and Psychotropic Substances Act, 1985  Code of Criminal Procedure The Inter-Class Moot court [MEMORIAL FOR THE RESPONDENT] Page VI STATEMENT OF JURISDICTION The Respondent humbly submits this memorandum in response to the petition filed before this Hon’ble Court. The petition invokes its jurisdiction under section 374 (2) of Cr.P.C and sec 101 of J.J act of Zambia. It sets forth the facts and the laws on which the claims are based. The Inter-Class Moot court [MEMORIAL FOR THE RESPONDENT] Page VII The Inter-Class Moot court [MEMORIAL FOR THE RESPONDENT] Page X to both the children on the ground that their release will defeat the ends of justice, and sent them to Ghazel’s observation home for children in conflict with law. 6. The JJ Board after conducting preliminary assessment decided that Ravi shall be tried as an adult and transferred the trial of the case to the Children’s Court. The Children’s Court decided to try him as an adult under the provisions of the Code of Criminal Procedure, 1973. The trial was then conducted and the Children’s Court convicted Ravi sentenced to ten years of imprisonment, out of which, Ravi is to be kept in a special home till he attains 21 years of age, and the rest of his termed is to be served by him in a regular jail. The Inter-Class Moot court [MEMORIAL FOR THE RESPONDENT] Page XI [ISSUES PRESENTED] ISSUES PRESENTED ISSUE I: Whether the appeal is maintainable before the honorable high court of Ghazel? ISSUE II: Whether the punishment given to accused is valid or not? ISSUE III: Whether the crime is heinous to consider a juvenile as an adult? [MEMORIAL FOR THE RESPONDENT] Page 10 The Inter-Class Moot court [SUMMARY OF ARGUMENTS] SUMMARY OF ARGUMENTS I. WHEATHER THE APPEAL IS MAINTAINABLE OR NOT? The appeal filed by the appellant is not maintainable. There were no merits in the present application as the Juvenile Justice Board had correctly appreciated the facts and had given cogent reasons for the same. Therefore the appeal shall be dismissed. II. WHEATHER THE PUNISHMENT GIVEN TO ACCUSED IS VALID OR NOT? It is humbly submitted that the punishment given to him is valid. The appellant is convicted on the basis on S. 35 and S.54 of N.D.P.S Act and S. 20(b)(ii)c of N.D.P.S. Acts III. WHEATHER THE CRIME IS HEINOUS TO CONSIDER A JUVINIAL AS AN ADULT? It is humbly submitted that the juvenile has committed a heinous crime under S.20(b)(ii)c , S.22(c) and S.25 of N.D.P.S. Act are consider as adult u/s S.15 of J.J. Act 2015 The Inter-Class Moot court [MEMORIAL FOR THE RESPONDENT] Page 13 6 Goklaram Jeruparamji Dhaka ... v. State Of Gujarat on 6 November, 2003 The Inter-Class Moot court [MEMORIAL FOR THE RESPONDENT] Page 14 [ARGUMENTS ADVANCED] Knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 there also presumption is available to be drawn from possession of illicit articles. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused-appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.” (¶10.) Now in order to appreciate the special burden or the presence of culpable mental state every offence is committed with some intent. There are four stages of commission of offences and are well known by all of us:  Intention  Preparation  Attempt  Commission (¶11.) Whenever any member wanted to smoke, all the members went together outside and shared the “joint”. On that occasion, Ravi and Shyam although, refused to smoke directly, they accompanied them.7 This was the only time when ravi refused to smoke directly .though he joined them later. This show that ravi was comfortable being in the situation and he also had the intention After a few minutes of consuming the brownies, Ravi and Shyam started feeling dizzy; however, they thought it was from dancing. They continued to dance and again after a few minutes they proceeded outside to smoke.8 This time ravi attempted to smoke and joined them. Even in the case of State of Assam V/s Papuia Hmar and Ors9 where in the three juvenile were found guilty of offence and sent them to special home. 7 Page 1 para 4 moot proposition 8 Page 2 para 5 moot proposition 9 JJB CASE No. 33/2013 The Inter-Class Moot court [MEMORIAL FOR THE RESPONDENT] Page 15 [ARGUMENTS ADVANCED] B. IS THE TENNUR OF HIS PUNISHMENT JUSTIFIABLE (¶12.) The NDPS Act, has several sections where the punishment is between 10 to 20 years and also fine ranging from Rs/-1.00 lakh to Rs/-2.00 lakhs in case of ‘contravention in relation to’ poppy straw, cannabis and psychotropic substances involving commercial quantity or for external dealings in certain kinds of narcotic drugs and psychotropic substances. (¶13.) Where as in this case, the juveniles and others were in possession of liquor, “joints” for smoking and 1kg and 250gm of charas which exceecds the contention of commercial quantity10. (¶14.) In the case of Salil Bali 11sought to make a distinction in regard to the definition of children as such in Sections 2(k) and 2(l) of the Juvenile Justice (Care and Protection of Children) Act, 2000, and the level of maturity of the child who is capable of understanding the consequences of his actions. He, accordingly, urged that the provisions of Sections 15 and 16 of the Act needed to be reconsidered and appropriate orders were required to be passed in regard to the gravity of punishment in respect of heinous offences committed by children below the age of eighteen years, such as murder, rape, dacoity, etc. Mr. Bali submitted that allowing perpetrators of such crimes to get off with a sentence of three years at the maximum, was not justified and a correctional course was required to be undertaken in that regard. (¶15.) In the present case the appellant is smart and capable of understanding the consequences of his action. He knew that there will be liquor, “joints” for smoking and charas was there in one of their bags which is illegal to possession (¶16.) Under S.20(b)(ii)c12 possession of drugs exceeding the commercial quantity with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees 10 Moot propotition 11 Salil Bali v. Union Of India & Anr on 17 July, 2013 12 S.20(b)(ii)c N.D.P.S. Act The Inter-Class Moot court [MEMORIAL FOR THE RESPONDENT] Page 18 [ARGUMENTS ADVANCED] assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub- Section (3) of Section 1818 The appellant in this case had mental and physical capacity to commit such offence. (¶27.) After a few minutes of consuming the brownies, Ravi and Shyam started feeling dizzy; however, they thought it was from dancing. They continued to dance and again after a few minutes they proceeded outside to smoke.”19 Appellant felt left out and got into the peer pressure of consuming smoke and drugs and that why he proceeded outside to smoke (¶28.) Section 1520 of the Act has reduced the age of a child from 18 to 16 years for the purpose of treating a child as an adult for heinous offences, thus proving to be a glaring and unavoidable inconsistency determine the "crime de jour" for which a child above 16 years and below 18 years can potentially be tried as an adult.21 (¶29.) Jhabua Murder case22.—On 1-3-2017, the first case after the amended JJ Act came into effect, two minors — aged 17 and 16 years were awarded life imprisonment and imposed a fine of Rs/- 10,000 each. In this case the accused was treated as an adult In Mohd. Shakil Khan’s case23, juvenile’s revision is dismissed as being devoid of merit. Thereafter, in the present case the appellant has committed an heinous crime to consider his as an adult. (¶30.) In view of what has been discussed above, I am of the considered opinion that judgment of conviction and sentences passed by court below does not suffer from any infirmity of facts or law. It is upheld accordingly. This appeal is dismissed. 18 S.18 JJ Act, 2015 19 Page 2 para 1 , moot proposition 20 S.15 JJ Act, 2015 21 Handbook for Advocates working with Children in Conflict with Law in India, Nat’l Law School of India University, https:// www.nls.ac.in/ ccl/ publications/handbook.pdf 22 Jhabua murder case 2017 23 Mohd. Shakil Khan (Juvenile) v. State Of U.P. on 8 May, 2017 The Inter-Class Moot court [MEMORIAL FOR THE RESPONDENT] Page 19 [PRAYER] PRAYER In light of the issues raised, arguments advanced and authorities cited, the counsel for the Respondent humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare: That, the appeal filed is not maintainable in the court of law and to be dismissed. And pass any order that this Hon’ble court may deem fit in the interest of equity, justice and good conscience. And for this act of kindness, the counsel for the respondent shall duty bound forever pray. Sd/- (Counsel for Respondent) The Inter-Class Moot court [MEMORIAL FOR THE RESPONDENT] Page 20