Memorial-Defense 1 PDF

SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2012
WRITTEN SUBMISSION ON BEHALF OF THE

DEFENSE
TEAM CODE:
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITIoN–2012
IN THE HON’BLE COURT OF

SESSIONS
OF MALYA
CASE NO.
567/2012
STATE OF MAKULE PROSECUTION
V.
RUMY AND SHORT DEFENSE
UNDER SECTION 304 READ WITH SECTION 34 OF THE INDIAN PENAL CODE, 1860, SECTION
27
OF THE ARMS ACT, 1959 AND SECTIONS 3(1)(a), 3(1)(b), 3(1)(g) OF THE
SUPPRESSION OF
UNLAWFUL ACTS AGAINST SAFETY OF MARITIME NAVIGATION AND FIXED PLATFORM ON

THE CONTINENTAL SHELF ACT,
2002.
MEMORIAL DRAWN AND SUBMITTED ON BEHALF OF DEFENDANTS
RUMY AND
SHORT
SURANA & SURANA NATIONAL TRIAL AD
VOCACY MOOT COURT COMPETITION, 2012
TABLE OF CONTENTS
INDEX OF AUTHORITIES
.................................................................................................................. I
STATEMENT OF JURISDICTION
...................................................................................................... V
STATEMENT OF FACTS
................................................................................................................. VI
STATEMENT OF CHARGES
.......................................................................................................... VII
SUMMARY OF ARGUMENTS
.......................................................................................................... IX
ARGUMENTS ADVANCED
................................................................................................................ 1
1.WHETHER THE STATE OF HINDON HAS THE JURISDICTION TO TRY THE INSTANT MATTER? .. 1
ould not be applicable to instant case.

1.1. The judgment of the Lotus Case w
............................. 1
1.2. The Court does not have the Jurisdiction as per the Principles of Customary
International Law.
....................................................................................................................................................
.. 2
2.WHETHER THE TWO ACCUSED, MR. RUMY AND MR. SHORT ENTITLED TO IMMUNITY? ......... 3
2.1. Hindon Penal Code provides for Immunity to Consuls under Section 2.
.............................. 3
2.2. The act done as an Official Duty formed the part of Consular Function.
............................. 5
3.WHETHER THE ACCUSED ARE GUILTY OF MURDER U/S 302 OF HINDON PENAL CODE? .........
6
3.1. The act of the accused did not result in the death of the persons.
.......................................... 6
3.2. The accused did not have the required mens rea to commit the offence.
............................... 7
3.3. The Act of the accused is covered under Self Defence.

............................................................ 8
3.4. Prosecution has failed to prove the case beyond reasonable doubt
........................................ 9
3.4.1. The documentary evidence is not reliable.

.......................................................................... 9
3.4.2. The Accused is entitled to get the Benefit of Doubt.

......................................................... 10
4. WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 27 OF THE ARMS ACT, 1959 AND
UNDER SE CTIONS 3(1)(A), 3(1)(B) AND 3(1)(G) OF THE SUPPRESSION OF UNLAWFUL ACTS
AGAINST SA FETY OF MARITIME NAVIGATION AND FIXED PLATFORMS ON CONTINENTAL SHELF
ACT, 2002? ........................................................................................................................
11
4.1. The Accused are not guilty under Section 27 of the Arms Act, 1959.
.................................. 11
4.1.1. Accused are not liable under section 5 and section 7 of the Arms Act, 1959.
................. 11
4.1.2. Accused are not liable under Section 27 of the Arms Act, 1959.
..................................... 12
4.1.3. Section 27(3) of the Arms Act, 1959 is unconstitutional.

................................................. 13
4.2. A1 and A2 are not liable under Sections 3(1)(a), 3(1) (b) and 3(1) (g) of the
Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed
Platforms on Continental Shelf Act, 2002.
............................................................................................................................................... 14

DEFENSE
TIONAL TR
SURANA & SURANA NA IAL AD
VOCACY MO
OT CO
URT COMPETITION, 2012
4.2.1. A1 and A2 are not liable under Sections 3(1)(a) of the Continental Shelf Act,
2002. ..... 14
4.2.2. A1 and A2 are liable under Sections 3(1)(b) and 3(1)(g) of the Continental Shelf
Act, 2002.
.............................................................................................................................................
15
4.2.3. Section 3(1)(g) of the Continental Shelf Act should be declared

unconstitutional. . ....... 15
PRAYER
.........................................................................................................................................
XI
DEFENSE
TIONAL TR
VOCACY MO
OT CO
URT COMPETITION, 2012 I
INDEX OF AUTHORITIES
CASE
S
Bersch v. Drexel Firestone, Inc. , 519 F.2d 974, 996 (2d Cir. 1975)
............................................ 13
Chandu Bhai Shana Bhai Parmar v. State of Gujarat; AIR 1982 SC 1022
................................. 20
Compare Travis v. Anthes Imperial Ltd., 473 F.2d 515 (8th Cir.
1973)....................................... 13
Dahyabhai Chhaganbhai Thakker v. State of Gujarat,

AIR1964SC1563.................................... 19
Director of Enforcement v. M.C.T.M.Corporation Pvt. Ltd , AIR 1996 SC 1100

....................... 18
Ghulam Hyder Imam Baksh v. Emperor, AIR 1938 Sind 63

........................................................ 20
Kollias v. D & G Marine Maintenance, 29 F.3d 67, 71 (2d Cir. 1994),

....................................... 11
Labor Union of Pico Korea, Ltd. v. Pico Prods., Inc., 968 F.2d 191, 194 (2d Cir.)
.................... 11
Leasco Data Processing Equip. Corp. v. Maxwell, 468 F.2d 1326, 1334 (2d Cir.1972)
............. 13
lIT v. V encap, Ltd., 519 F.2d 1001, 1017-18 (2d Cir. 1975)
........................................................ 13
Morrison v. National Australia Bank, 130 S. Ct. 2869 (2010)

..................................................... 11
Ram Kumar v. State of Rajasthan, A IR 1970 Raj

60.................................................................... 21
Raymund Gancieneo v. State of Kerela, 2003(3)KLT174

............................................................ 13
Re Sultana, 3 5 PR (Cr)
1884......................................................................................................... 20
S.S. “Lotus” F rance v. Turkey., (1927), P.C.I.J. (Ser. A) No.10

.................................................. 11
Santokh Singh v. State of Punjab 2000 (3) RCR(Cri) 637

............................................................ 22
Saudi Arabia v Nelson, 507 US 349 - Supreme Court 1993

......................................................... 15
Schooner Exchange v. M.C. Fid don, ( 1812) 11 U.S.(7 Crenel)116, 136, 137,143-146.
........................ 14
Sher Singh v. State of Punjab, 1 983 AIR 465

............................................................................... 23
State of Bihar v. Ramesh Singh, A IR 1977 S.C. 2018.

................................................................. 20
State of Gujrat v. Mohanlal Kuberds; 1 975 Guj LR 260

............................................................. 20
State Of Punjab v. Jarnail Singh 2 011(3)RCR(Criminal)244

..................................................... 23
Subhash Ramkumar Bind Alias Vakil and Anr. v. State of Maharashtra ( 2003) 1 SCC
506 ....... 22
BOOKS
REFERRED
llahabad: Central Law

• Agarwal H.O. International Law and Human Rights, A
Publications,
2010
.

DEFENSE
TIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2012 II
SURANA & SURANA NA
ew York: Oxford University

• Brownlie Ian, Principles of Public International Law, N
Press,
2008
.
• Gaur K.D., Textbook on The Indian Penal Code, New Delhi: Universal Publishing
Company,
2009
.
ew Delhi: Universal Law Publishing

• J. Monir M, Textbook on the Law of Evidence, N
Company Pvt. Ltd.,

2006.
• Modi, Medical Jurisprudence and Toxicology, Nagpur: Lexis nexis Butterworths

Wadha,
2006
.
• Parmar S.P. Singh and Parekh Manoj H., Law relating to Crime Investigation and
Medical
llahabad: Dwivedi and Company,

Science, A
2007.
• Pillai K.N.C., General Principles of Criminal Law, Lucknow: Eastern Book Company,
2003.
• Rao S.V. Joga, Evidence Cases & Materials on the Law of Evidence, Bangalore:
NLSIU,
2003
.
• Ratanlal & Dhirajlal, Indian Penal Code, Nagpur: Wadhwa & Comapany,
2004.
• Sarvaria S.K., Indian Penal Code, Nagpur: Lexis Nexis Butterworths Wadhwa,
2008.
• Sharma B.R., Scientific Criminal Investigation, New Delhi: Universal Publishing

Company,
2006
.
JOURNALS
REFERRED
• Hasan Tariq, “Diplomatic or Consular Immunity for Criminal Offences”, Virginia Journal
of
International Law Online, 2011, vol. 2, p.

17.
• Hickeyy James E. & Annette Fisch, “The Case to Consular Personnel in the United
States”,
Hastings Law Journal, 1990, vol. 44, pp. 351,

368-369
• McCarthy John G., “The Passive Personality Principle and Its Use in [Combatting]
989, vol 13,

International Terrorism”, Fordham International Law Journal, 1
p. 317.
• Vittor Francesca De & Pasquale De Sena, “State Immunity and Human Rights: The
Italian
Supreme Court Decision on the Ferrini Case”, The European Journal of International
Law,
2005, vol. 16, p.

96.
DEFENSE
TIONAL TR
VOCACY MO
OT CO
URT COMPETITION, 2012 III
ARTICLES REFERRED
• Permanent Court of International Justice, “In the Case relating to S.S. Lotus”, Hyde’s
International Law, September 7, 1927, vol. I,

p. 32.
• Vicuna Francisco Orrego, “Diplomatic and Consular Immunities and Human Rights”,
International & Comparative Law Quarterly, 1991,

p. 9.
• Milhaupt J., “The Scope of Consular Immunity under the Vienna Convention on
Consular
988, vol.
Relations: Towards a Principled Interpretation”, Columbia Law Review, 1
88, p.129
• Norrie & Alan, “Crime, Reason and History: A Critical Introduction to Criminal Law”,
Weidenfeld and Nicolson, 1993, pp.

35-43.
• Arimatsu Louise, “Universal Jurisdiction for International Crimes: Africa’s Hope for
Justice?”, Chatham House: Briefing Paper, April 2010,

p. 5.
• Ferris Charles, “Extraterritorial Boundaries of federal Securities Law (Berch v. Drexel
ecember, 1975,
Firestone, Inc.; IIT v. Vencap, Ltd.”, St. John’s Law Review, D
p. 484.
• Eli E. Hertz, “The Right to Self-Defence United Nations and the International Court of
010, pp.
Justice”, Myths and Facts, 2
8-10.
• Mulcahy James and Mahony Charles O., “Anticipatory Self-Defence: A Discussion of

the
006, p.
International Law”, Hanse Law Review, 2
233
• Zumwalt, R.E., M.D. and V.J.M. DiMaio, “Rifle Wounds from High Velocity, Centre-Fire
Hunting Ammunition”, Forensic science Journal, January 1997,

p. 231.
STATUTES
REFERRED
• Arms Act, 1959
• Code of Criminal Procedure,

1973
• Hindon Penal Code,

1860
• Indian Evidence Act,
• Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed

Platforms
on Continental Shelf Act,

2002
• Vienna Convention on Consular Relations,

1963

DEFENSE
SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2012 IV
DICTIONARIES REFERRED
ed., United States: Thomson-West Publishing Company,

nd
• Black’s Law Dictionary, 2
2001.
• Encyclopedia Law Dictionary, 3rd ed., New Delhii: Wadhwa & Company,
2008.
• Wharton’s Law Lexicon, 14th ed., New Delhi: Universal Publishing Company Pvt.
Ltd.2006.
DEFENSE
TIONAL TR
VOCACY MO
OT CO
URT COMPETITION, 2012 V
STATEMENT OF JURISDICTION
The prosecution has approached the Hon’ble Court of Sessions of Malya under section
26 of the
Code of Criminal Procedure, 1973. Yet the respondents have challenged the
jurisdiction.
DEFENSE
TIONAL TR
VOCACY MO
OT CO
URT COMPETITION, 2012 VI
STATEMENT OF
FACTS
On 18 June 2012, heavy explosives found at a busy market in the city of Malya were
diffused by
the police. Intelligence reports stated of atleast two people being involved whose
sketches were
made and released in public with a reward of Rs. 50 Lakh put up for any information
leading to
their capture. The whole city was put on high alert with beefed up security. On 20th June
2012, the watchman of consulate office, Mr. Manin, on seeing two similar looking
people walk out of the library informed the head of the security. Two men incharge of
security,
Mr. Rumy & Mr. Short found nothing suspicious except the unclear images of people of
the
CCTV camera who looked similar to the

terrorists
Around 6.30 the same day, the two officials, armed with sniper rifles, on round saw two
men
through their binoculars who looked similar to the sketches climbing the consulate wall
behind
the library. The officials to scare away the duo initially, fired three shots in air, but all in
vain.
Afterwards they fired 5 more shots that went right above their heads, but none of the
shots hit
them
.
Mr. Hudson, registered an FIR on the basis of telephonic information provided by Mr.
Dcruz, the
owner of the bungalow situated right opposite to the consulate office. From the crime
scene he
prepared its sketch and took into possession the evidences from the crime scene. Later
on, he
also recorded the statements of various people. It was alleged that the security agents
were
responsible for the death of two people. However, on conducting further enquiries in the
consulate office police recovered 4 sniper rifle, 2 high powered handguns, some bullet
in the gun
and some empty shells and found that Mr. Rumy and Mr. Short were intelligence agents
of a
reputed outfit in
Deventia.
Writ petition filed by Deventia government and two security men in the High Court was
dismissed on grounds of subject matter. On the orders of Lok Adalat and the Court,
Consulate
general paid a compensation of Rs. 1 crore on the condition that all the legal
proceedings and
complaint would be withdrawn. In the meanwhile, consulate on the direction of the

government
also paid a compensation of rupees 5 Lakhs to each of the victims’

family.
The Court of Sessions framed charges against the accussed under section 302 read
with S. 34
HPC, S. 27of the Arms Act, 1959 and S. 3(a), 3(b), 3(g) of the Supression of Unlawful
Acts
Against safety of Maritime Navigation and Fixed Platforms on the Continental Shelf Act,
2002.
Laws of Hindon are analogous to laws of

India.
DEFENSE
TIONAL TR
VOCACY MO
OT CO
URT COMPETITION, 2012 VII
STATEMENT OF CHARGES
1. WHETHER THE STATE OF HINDON HAS THE JURISDICTION TO TRY THE INSTANT MATTER?
1.1. The judgment of the Lotus Case would not be applicable to

instant case.
1.2. The Court does not has Jurisdiction as per the Principles of Customary
International
Law.
2. WHETHER THE TWO ACCUSED, MR. RUMY AND MR. SHORT ENTITLED TO IMMUNITY?
2.1. Hindon Penal Code provides for Immunity to Consuls under

Section 2.
2.2. The act done as an Official Duty formed the part of Consular
Function.
3. WHETHER THE ACCUSED ARE GUILTY OF MURDER U/S 302 OF HINDON PENAL CODE?
3.1. The act of the accused did not result in the death of the
persons.
3.2. The accused did not have the required mens rea t o commit the
offence.
3.3. The Act of the accused is covered under Self

Defence.
3.4. Prosecution has failed to prove the case beyond

reasonable doubt
3.4.1. The documentary evidence is not
reliable.
3.4.2. The Accused are entitled to get the Benefit of

Doubt.
UNDER SECTIONS 3(1)(a), 3(1)(b) AND 3(1)(g) OF THE SUPPRESSION OF UNLAWFUL ACTS
AGAINST SAFETY OF MARITIME NAVIGATION AND FIXED PLATFORMS ON CONTINENTAL
SHELF ACT,
2002?
4.1. The Accused are not guilty under Section 27 of the Arms
Act, 1959.
4.1.1. Accused are not liable under section 5 and section 7 of the Arms
Act, 1959.
4.1.2. Accused are not liable under Section 27 of the Arms

Act, 1959.
4.1.3. Section 27(3) of the Arms Act, 1959 is

unconstitutional.
Suppression of Unlawful Acts Against Safety of Maritime Navigation and

Fixed
Platforms on Continental Shelf Act,

2002.

DEFENSE
TIONAL TR
VOCACY MO
OT CO
URT COMPETITION, 2012 VIII
4.2.1. A1 and A2 are not liable under Sections 3(1)(a) of the Continental
Shelf Act,
2002
.
4.2.2. A1 and A2 are not liable under Sections 3(1)(b) and 3(1)(g) of the
Continental
Shelf Act,
2002.
unconstitution
al.
DEFENSE
TIONAL TR
VOCACY MO
OT CO
URT COMPETITION, 2012 IX
SUMMARY OF ARGUMENTS
It is humbly submitted before the Hon’ble Court that in the international Law there is a
presumption against extra-territoriality. The Hindon Penal Code under section 2

provides
immunity to the consuls from being criminally prosecuted. According to the principles of
Customary International Law and The Hindon Penal Code the court has no jurisdiction
to try the
present
matter.
2. WHETHER THE TWO ACCUSED ARE ENTITLED TO IMMUNITY?
Certain rules of International Law such as the rule that foreign states and foreign
sovereigns are
not subject to the jurisdiction of national courts are regarded as part of the national law
also. It is
further submitted that the rules governing the jurisdiction of national courts must be
carefully
distinguished from those governing jurisdictional immunities. The consular employees

enjoy
immunity from jurisdiction from the receiving state’s judicial authorities when it comes to
the
acts performed in the exercise of consular functions. Hence, the accused are entitled to
immunity
under this
concept.
3. WHETHER THE ACCUSED ARE GUILTY OF MURDER U/S 302 OF HPC?
It is humbly submitted before the Hon’ble Court that the accused are not liable for
offence under
section 302, HPC. To prove the charge under this section firstly, the commission of the
offence
by the accused has to be shown and then the guilty intention behind the act has to be
established.
In the absence of any actus reus, that resulted in the injury, or mens rea, to cause the
injury, the
accused cannot be held guilty of murder of the

deceased.
SHELF ACT,
2002?
It is most humbly submitted to the Hon’ble Court that the accused, A1 and A2 are not
guilty
under Section 27 of The Arms Act, 1959 and under Sections 3(1)(a), 3(1)(b) and 3(1)(g)
of the

DEFENSE
TIONAL TR
VOCACY MO
OT CO
URT COMPETITION, 2012 X

Platforms on
Continental Shelf Act, 2002. The basic essentials as required to establish a case under
these Acts
are absent and hence accused cannot be liable for offences

under them.
DEFENSE
TIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2012 1
SURANA & SURANA NA
ARGUMENTS ADVANCED
Generally there is a presumption against extra-territoriality. The burden of overcoming

the above presumption lies with the party asserting it.1 Only those crimes which are

against government2 are exempt from the presumptions against this principle.3 The U.S.
Supreme Court in the case of Morrison v. National Australia Bank4 had rediscovered,
and reinvigorated, the presumption against extraterritoriality5. If adopted, this approach
could be justified by the same
factors that the Supreme Court has invoked to justify its criminal- and civil-law
pronouncements on the presumption against extraterritoriality.6
1.1. The judgment of the Lotus Case would not be applicable to instant case.
The principle laid down in the lotus case7 was that anything not prohibited by
international law is
permitted by it. However, this judgement unduly limits the scope of approach and
should not be
followed for the instant case to be judged upon for the following
reasons/arguments:
Firstly, the underlying rationale of the Court’s approach reflects an old, tired view of
international law, which takes the adage, famously expressed in the “Lotus” Judgment,
according
to which restrictions on the independence of States cannot be presumed because of the

consensual nature of the international legal order8. As the Permanent Court did in that
case9, the
Court has concluded in the present Opinion that, in relation to a specific act, it is not
necessary to
demonstrate a permissive rule so long as there is no

prohibition.
1
Labor Union of Pico Korea, Ltd. v. Pico Prods., Inc. , 968 F.2d 191, 194
(2d Cir.)
2
Emphasis
added.
3
Kollias v. D & G Marine Maintenance, 29 F.3d 67, 71 (2d Cir.
1994).
4
Morrison v. National Australia Bank, 130 S. Ct. 2869
(2010).
5
Zachari D. Clopton, “Bowman Lives: The Extraterritorial Application of U.S. Criminal Law after Morrison
v. National Australia Bank”, 67 NYU Annual Survey of American Law, March 29, 2011, p. 6.
Ibid.
7
S.S. “ Lotus” France v. Turkey., ( 1927), P.C.I.J. (Ser. A)
No.10.
8
Id., p.
18.
9
Id., pp.
19-21.

DEFENSE
TIONAL TR
VOCACY MO
OT CO
URT COMPETITION, 2012 2
Secondly, by upholding the Lotus principle, the Court fails to seize a chance to move
beyond this
anachronistic, extremely co sensualist vision of international law. The Court should

consider the
scope of the question from an approach which does not, in a formalistic fashion, equate
the
absence of a prohibition with the existence of a permissive rule the possibility that
international law can be neutral or deliberately silent on the international lawfulness of
certain acts.10
Thirdly, under this approach, everything which is not expressly prohibited carries with it
the
same colour of legality; it ignores the possible degrees of non-prohibition, ranging from
tolerated” to “permissible” to “desirable”. Under these circumstances, even a clearly

recognized
positive entitlement to declare independence, if it existed, would not have changed the
Court’s answer in the slightest.11
1.2. The Court does not have the Jurisdiction as per the Principles of
Customary
International
Law.
States generally assert some criminal jurisdiction over at least certain of their nationals
when they commit crimes abroad (the active personality principle of jurisdiction12).13 This
principle is
based on the idea that the nationals of a State are subject to its law even when they are
abroad,
that the reputation of a State is damaged by offences committed by its nationals in

foreign
countries, that a person is most familiar with the law of the State of which he is a
national and that his prosecution is the necessary corollary to his not being extradited.14
A State has jurisdiction with respect to a crime committed outside its territory by a
natural person
who was a national of that State when the crime was committed or who is a national of
that State
10
[Declaration of Judge Sangma], via ICJ-CIJ, August 27,
2012.
11
Ibid.
12
Jurisdiction exercised by the State over its own National or persons domiciled in its territory, without
regard to the place

of the offence.
13
David Goetz, “International Criminal Law”, Law and Government Division, October 15, 2001,
http://publications.gc.ca/Collection-R/LoPBdP/BP/prb0117-e.htm, accessed August 24, 2012.
14
Council of Europe, “European Convention on the Transfer of Proceedings in Criminal Matters”,
http://conventions.coe.int/Treaty/EN/reports/html/073.htm accessed August 2012.

DEFENSE
TIONAL TR
VOCACY MO
OT CO
when prosecuted or punished.15Hindon will have jurisdiction only for the acts committed
within its territory and not on a foreign territory by any foreigner.16 The ‘objective
territoriality principle’17 is a common jurisdiction based in countries for the
prosecution of extra-territorial crimes. With the increased globalization, it becomes

easier for the
prosecutor to demonstrate that the conduct occurring outside the country is having a
substantial
effect in the country. Although ‘objective territoriality principle’ expands the limits of
extraterritorial jurisdiction, it sometimes fails to offer jurisdiction for the conduct directly
targeting the country government. The ‘objective territoriality principle’ needs to be

reconfigured to provide more respect for the laws of the other countries.18 As per the
principles laid down in Bersch19 and IIT20, a
n act should have produced a sufficiently
serious and foreseeable effect on the country in respect to the context in which it was
done for
extending jurisdiction over a foreign member. In the instant case the act was to scare off
the
terrorists without any motive of harming the civilians of the country. The act done by the
two
accused was with actually in the interest of the country and not against the interest of it.
The accused should not be tried until there is sufficient nexus with the interest of the
country.21
Therefore, it is humbly submitted before the court that the court should not try the
instant matter
due to lack of
jurisdiction
2. WHETHER THE TWO ACCUSED, MR. RUMY AND MR. SHORT ENTITLED TO IMMUNITY?
2.1. Hindon Penal Code provides for Immunity to Consuls under

Section 2.
Certain rules of International Law are regarded as part of the national law also. One
such rule is
that foreign states and foreign sovereigns are not subject to the jurisdiction of national
courts. In
15
Grant and Barker, “The Harvard Research in International Law: Original Materials” Harvard Research
Draft Convention
, 2008, p. 519
16
Raymund Gancieneo v. State of Kerela,
2003(3)KLT174.
17
The basis for the exercise of jurisdiction by a State over an event that terminates or has effects in
its territory.
18
Ellen S. Podgor, “Extraterritorial Criminal Jurisdiction: Replacing ‘Objective Territoriality’ with ‘Defensive
Territoriality’”, Studies in Law, Politics & Society, January 21, 2003, vol. 28, p. 5.
19
Bersch v. Drexel Firestone, Inc. , 519 F.2d 974, 996 (2d Cir.
1975).
20
lIT v. Vencap, Ltd. , 519 F.2d 1001, 1017-18 (2d Cir.
1975).
21
Leasco Data Processing Equip. Corp. v. Maxwell, 468 F.2d 1326, 1334 (2d Cir.1972). Compare Travis
v. Anthes Imperial
Ltd., 473 F.2d 515 (8th Cir. 1973).

DEFENSE
TIONAL TR
VOCACY MO
OT CO
the U.S., the rule was first rendered authoritatively by Chief John Marshall in The
Schooner Exchange v. M.C. Fid don22. In Hindon the rule continues to apply in regard to
criminal
proceedings as per the

HPC.
Though according to section 2 of the HPC ‘every person’ is liable to punishment under
the code
for an offence, there are certain exceptions to the general rule of criminal liability, which
are
based on the principle of expediency, on convention or on an agreement or

understanding
between the two nations. For instance the law provides immunity from criminal
proceedings to
the high dignitaries, the heads of foreign governments, ambassadors, diplomatic

, U
agents, Consuls23 nited States Representatives, the President of India and Governor
of States, etc.24
The section is in consistency with the international law and the Vienna Convention of
Consular
Relations. However, unlike the Consular Convention does not distinguish between the
officials
and employees, and thus it can be interpreted to apply uniformly. The Court in the
Arrest Warrant Case25 has examined the rules concerning the immunity or
criminal responsibility of persons having an official capacity contained in the legal

instruments
creating international criminal tribunals, and which are specifically applicable to the
latter It
finds that these rules likewise do not enable it to conclude that any such an exception
exists in customary international law in regard to national courts.26
It should further be noted that the rules governing the jurisdiction of national courts must
be
carefully distinguished from those governing jurisdictional immunities: jurisdiction does

not
imply absence of immunity, while absence of immunity does not imply jurisdiction. Thus,
although various international conventions or the prevention and punishment of certain

serious
crimes impose or States obligations of prosecution or extradition, thereby requiring

them to
extend their criminal jurisdiction, such extension of jurisdiction in no way affects

immunities
under customary international law, [including those of Ministers for Foreign Affairs].
These
22
Schooner Exchange v. M.C. Fid don, ( 1812) 11 U.S.(7 Crenel)116,
136, 137,143-146.
23
Emphasis
added.
24
K. D. Gaur, Textbook on The Indian Penal Code, ed. 4th, (Universal Publishing Company, New Delhi,
2009), p. 36.

25
Arrest Warrant of 11 April 2000 Case (Democratic Republic of the Congo v. Belgium), ICJ,
14February 2002.
26
Id., ¶
58.

DEFENSE
TIONAL TR
VOCACY MO
OT CO
remain opposable before the courts of a foreign State, even where those courts
exercise such a jurisdiction under these conventions.27
2.2. The act done as an Official Duty formed the part of Consular Function. In
, J ustice Souter of the United States Supreme Court wrote,
Saudi Arabia v Nelson28
"Under
the restrictive, as opposed to the absolute, theory of foreign sovereign immunity, a state
is
immune from the jurisdiction of foreign courts as to its sovereign or public acts”,
"Under international law, a state or state instrumentality is immune from the jurisdiction
of the
courts of another state, except with respect to claims arising out of activities of the kind
that may
be carried on by private
persons."
Whether or not an act is jure imperii “ does not depend on the international legality or
otherwise
of the conduct, but on whether the act in question is intrinsically governmental. This in
turn depends on an analysis of the nature of the act as well as the context in which it
in
occurred”29
terms of the acts performed by the security men, i.e., protecting the consulate building
from what
possibly seemed like a terrorist attack, the nature of act in itself tend towards a state
function. The two accused, Mr. Rumy and Mr. Short were men incharge of security30,
the act performed
by them was firing in air and right above the head of the terrorists which was completely
within
the official capacity and in accordance with duties entrusted upon them. Therefore, the
applies. The principle to be applicable to the instant case
principle of ratione materiae31
has two basis:
firstly, he is an employee who is on a consular mission and secondly t hat acts of the
accused
persons were in self defence and within the scope of official acts with they being the
men
incharge with security of the consulate

office.
Immunity ratione materiae r elates to the acts of the state. Conduct that is directly
attributable to
the state action is considered an act of state. As the person in question does not
commit such acts
27
Id., ¶
59.
28
Saudi Arabia v Nelson, 507 US 349 - Supreme Court
1993.
29
Dapo Akade & Sangeeta Shah, “Immunities of State Officials, International Crimes and Foreign
Domestic Courts”,
European journal of International Law, 2011, vol. 21, p. 176.
30
Fact Sheet ¶
3.
31
ed. (Thomson:
ryan A. Garner, Black’s Law Dictionary, 8th
By reason of the material involved; see also B
West Publishing Company, 2004), p. 1291.

DEFENSE
TIONAL TR
VOCACY MO
OT CO
for his own personal benefit, foreign domestic courts have to grant such acts
immunity.32
Although immunity ratione materiae covers acts, it also covers the individual as it
prevents his
arrest and detention. Denza notes that if the conduct in question is imputable or
attributable to
the state, immunity ratione materiae s hould subsist even if the state did not expressly
order or
sanction the
act.33
The consular employees do enjoy immunity from jurisdiction from the receiving state’s
judicial authorities when it comes to the acts performed in the exercise of consular
functions.34
Therefore, it is honourably submitted to the court that the two accused are entitled to
immunity.
3. WHETHER THE ACCUSED ARE GUILTY OF MURDER U/S 302 OF HINDON PENAL CODE?
The prosecution has charged the accused under section 302 of the HPC, alleging them
to be
guilty of murder of the deceased. The allegations, however, do not meet the
requirements of law
as the essential requisites to prove the charge are absent. The offence of murder
In the absence of such clear intention
s well as mens rea. 35
requires both actus reus a
and mens rea, it would be
miscarriage of justice to convict the accused for the offence of

murder
3.1. The act of the accused did not result in the death of the
persons.
nd showing that there must

The primary step to establish murder is proving actus reus a
be a relation between the act done by the accused and the offence.36
Actus reus is defined to mean a guilty act or a wrongful deed that comprises the
physical components of a crime.37 To establish actus reus, it has to be show that the act
committed by accused is the one resulting in the death of the person. 38

32
Yitiha Simbeye, Immunity and International Criminal Law, ( Ashgate Publishing Company, Burlington,
USA, 2004),
p. 109.
33
Id., p.
129.
34
Art. 43, Vienna Convention on Consular Relations, 1963. [ hereinafter as Consular
Convention]
35
J. Horder, ‘On the Irrelevance of Motive in Criminal Law’, Oxford Essays in Jurisprudence,
2000, p. 79.
36
SK Sarvaria , Indian Penal Code, ed.10th, (Lexis Nexis Butterworths Wadhwa, Nagpur, 2008),
p. 2667.
37
ed. (Thomson: West Publishing Company,
Bryan A. Garner, Black’s Law Dictionary, 8th
2004), p. 39.
38
Norrie & Alan, “Crime, Reason and History: A Critical Introduction to Criminal Law”, Weidenfeld and
Nicolson, 1993,
r mens rea of any crime is lacking, no motive, however evil,
pp. 35-43; The actus reus o
will make a man guilty of a crime.

DEFENSE
TIONAL TR
VOCACY MO
OT CO
The accused, A1 and A2, while on rounds around the consulate saw two people trying
to climb
up the wall of the library. They being the security officials of the consulate, it was their
duty to
ensure the security of the premises. A1 and A2 fired shots only to scare of the people
climbing
the wall. The shots were fired in the air and then above their heads ensuring none of the
bullets hit them.39This act of firing by the security officials did not result in the death the
deceased, D1
and D2, as they were present on the opposite side of the road across the consulate.
The shots
were fired in the air and towards the persons trying to climb the wall behind the
library.
The statement by the witness that they heard the gunshots from the consulate
compound is not
sufficient to conclude that act was done by A1 and A2. None of the witness saw or
named them
as the persons firing the bullets that resulted in death of the victims. Merely stating that
the sound
came from the consulate compound would not be sufficient. It would have to be proved
that the
shots that resulted in the killing of the deceased were actually fired by the
accused.
3.2. The accused did not have the required mens rea t o commit the
offence.
One of the essentials of murder is the presence of mens rea. To convict a person of
murder, it is essential to prove that the accused had the required mens rea t o commit
the offence.40
Mens Rea i s a state of mind. Under Criminal law, ‘mens rea’ i s considered as ‘guilty
intention’
and unless it is found that the accused had the guilty intention to commit the ‘crime’ he
cannot be guilty of committing the crime.41
The security officials, A1 and A2 , firstly, did not fire at the deceased and secondly, did
not have
any intention to cause them any hurt. The shots fired by the officials were towards the
persons
climbing up the library wall with the intent to scare

them off.
A1 and A2, were in charge of the safety of the consulate premises. They were on high
alert after reports of having seen terrorists in the consulate premises42. Their intention
was not to cause the
death of persons standing on the road opposite the consulate but, to prevent trespass
into the
consulate compound. It is for this reason that shots were first fired in the air and then
over the
head of the persons climbing the wall, making sure none of the bullets
hit them.
39
Statement of Witnesses, Annexure-7,
p. 15.
40
Supra note
2.
41
d. 2nd, (Wadhwa and company, Nagpur,
P Ramanatha Aiyer, The Law Lexicon, e
2006), p.1221.
42
Fact Sheet ¶
2.

DEFENSE
TIONAL TR
VOCACY MO
OT CO
The Apex Court in the case of Director of Enforcement v. M.C.T.M.Corporation Pvt.

Ltd43

observed
thus:
"Mens rea" is a state of mind. Under the criminal law, mens rea is considered as the
"guilty
intention" and unless it is found that the accused had the guilty intention to commit the
crime he
cannot be held guilty of committing the

crime."
The officials did not have mens rea to cause injury to anyone, neither the person
climbing up the
wall, nor the deceased, present on the opposite side of the road. The accused cannot
be held for
n part of the accused in causing

murder when the prosecution fails to show mens rea o
the death
of the
persons.
3.3. The Act of the accused is covered under Self

Defence.
The concept of self defence of states is dealt by the customary law. Every state has the
inherent
right of self defence. The principles of self- defence are long-standing and have been
repeatedly confirmed in legal history: those of necessity and proportionality.44 Even the
customary
international law allows for such a right encompassing a right to use pre-emptive
measures. The
customary right of self-defence is also accorded to States as a preventive measure,

taken in ‘anticipation’ of an armed attack.45 One of the long standing definition provides,
“the defensive
action must be necessary to adequately defend the threatened interest; and...the

necessary defensive action must be proportionate to the danger.”46 The customary right
to self-defence,
either in anticipation or otherwise, would therefore be valid when the requirements of

necessity
and proportionality are fulfilled. ‘Necessity’ denotes something instant, imminent and
immediate, joined by that of imminence.47
In the present case, A1 and A2 had received information of the possibility of terrorists
having
entered their consulate compound. On spotting two persons trying to climb the wall of
the library
they fired shots in air in the interest of the security of the consulate. This act of firing
would fall
43
Director of Enforcement v. M.C.T.M.Corporation Pvt. Ltd , AIR 1996 SC
1100.
44
The doctrine of proportionality originated in the Hague Conventions, 1907, was later codified in article
49 of the Draft
Articles of State Responsibility, 1980 a
nd is referred to in addition to the Geneva
Convention, 1977.
45
Chris Richter, “Pre-emptive Self-Defence, International Law and US
003, http://www.polsis.uq.edu.au/dialogue/vol-1-2-6.pdf
Policy”.2 , accessed
August 24, 2012.
46
Human Rights Watch, “Question and Answers on Hostilities of Between Israel and Hezballah”, August
2, 2006.
47
Supra note
5.

DEFENSE
TIONAL TR
VOCACY MO
OT CO
under self defence. The two basic principles of necessity and proportionality are fulfilled.
There
was a necessity that the officials take immediate action against the trespassers as they
were
responsible for the security and their action was in proportion to the offence. The shots
were
fired first in the air and when that did not help, shots were fired at the persons. Effort,
however,
was made to ensure that none of the bullets actually hit the persons. The intention here
was only
to scare them off. Therefore, none of the officials can be said to have exceeded their
right of
defenc
e.
3.4. Prosecution has failed to prove the case beyond

reasonable doubt
The first canon of Criminal Law is that “Better to let ten guilty selves go free than to
punish one
innocent self”. The Prosecution is duty bound not only to bring home the charges
against the
accused but is required prove it with such certainty and exactitude which would leave no
scope
for doubt of any other inference other than that of the guilt of the accused. The
prosecution must prove beyond reasonable doubt not only the actus reus b ut the mens
48
rea.
3.4.1. The documentary evidence is not

reliable.
A1 and A2 were at the top roof of the consulate premises when the incident took place.
The
prosecution alleges that the shots fired by the officials resulted in the death of the
victims.
However, upon a careful examination of the entire documents one can safely conclude
that the
prosecution story has many

loopholes.
Examination of wounds of Tom show that while one bullet entered through the neck and
was
recovered from the brain, the second followed a straight line and exited from the back
and the
third went in from below the midline and exited from the back. Jerry suffered two bullet
shots;
one went in though the temple and through the back of the head and other followed a
downward course through the ribs.49 Examinations of the bullets wounds show us that
they were fired from
different angles and not from where the officials were present.Also, one of the bullets
that hit
Jerry took along with it some portion of brain matter and also resulted in some powder
tattooing along the margins of the wound.50 This indicates that bullet was fired from a
closer range than
from where the security officials were present. There is not even an iota of material by
which the
48
Dahyabhai Chhaganbhai Thakker v. State of Gujarat,
AIR1964SC1563.
49
Post Mortem Report, Annexure -5,
p 9.
50
Id., p
11.

DEFENSE
TIONAL TR
VOCACY MO
OT CO
prosecution can lay a pointing finger against the accused. In a case of murder, where
intention is
one of the essential elements of the offence, it is always necessary that there should be
a definite
finding as to whether the necessary guilt intention is or is not present, and when it is
reasonably
doubtful upon the evidence of the prosecution whether the intention is present, then the
accused is entitled to the benefit of that reasonable doubt.51 The circumstance, that
there may be difficulty
in establishing the requisite knowledge or intention, by no means, discharges the

prosecution from the burden of doing so.52
Thus, whenever a court is called upon to arrive at the finding of the real intention of an
accused,
it should consider all available circumstances and accept only that which can be arrived
at beyond reasonable doubt.53
3.4.2. The Accused is entitled to get the Benefit of

Doubt.
In cases of a murder when the ocular evidence is unreliable, benefit of doubt to be given
to all accused.54 The following remarks of the Hon’ble Supreme Court in the noted
would be apt to be quoted here :--
decision of State of Bihar v. Ramesh Singh55
If the scales of pan as to the guilt or innocence of the accused are something like
even at
the conclusion of the trial, then, on the theory of benefit of doubt the case is to
end in his
acquittal
.
In the case given, none of the eyewitnesses mentioned seeing A1 and A2 as the once
firing the
bullets that hit the victims. They merely heard gunshots from the opposite side of street
from
around the consulate premises. In order to warrant conviction it would have to be

proved beyond
doubt that A1 and A2’s actions are guilty of punishment. The essentials to be proved by
the
prosecution in order to establish the guilt of the accused, is the commission of the
offence, the specific intention to cause death or bodily injury.56
51
IR 1938 Sind 63 at
Ghulam Hyder Imam Baksh v. Emperor, A
p. 65.
52
Re Sultana, 35 PR (Cr)
1884.
53
State of Gujrat v. Mohanlal Kuberds; 1975 Guj LR
260.
54
Chandu Bhai Shana Bhai Parmar v. State of Gujarat; AIR 1982 SC
1022.
55
State of Bihar v. Ramesh Singh, AIR 1977 S.C.
2018.
56
IR 1970
Ram Kumar v. State of Rajasthan, A
Raj 60.

DEFENSE
TIONAL TR
VOCACY MO
OT CO
In the present case prosecution has failed to successfully show that the act was indeed
committed
by the accused or to establish the guilt of the accused. Therefore, the accused are
entitled to
benefit of doubt and should be

acquitted.
SHELF ACT,
2002?
It is most humbly submitted to the Hon’ble Court that the accused, A1 and A2 are not
guilty
under Section 27 of The Arms Act, 1959 and under Sections 3(1)(a), 3(1)(b) and 3(1)(g)
of the

Platforms on
Continental Shelf Act,

2002.
4.1. The Accused are not guilty under Section 27 of the Arms
Act, 1959.
It is submitted before this court that the accused are not liable under Section 27(3) of
the Arms
Act, 1959. Section 27 is applicable when a person contravenes section 5 or section 7 of

the Arms
Act,
1959.
4.1.1. Accused are not liable under section 5 and section 7 of the Arms Act, 1959.
Section 2757 provides for punishment for use of any prohibited arms or prohibited
ammunition in
contravention of section 5 or section 7 of the Act by any person. If the act results in the
death of a person, accused person shall be punished with death.58 Section 559 deals
with the use, manufacture, sale, transfer, convert, repair or test of firearms in
accordance with the license issued under the provision of the Act. Section 760, on the
other hand, deals with the acquisition, use, offer for sale, transfer, conversion,
and repair, test of proof any prohibited arms or prohibited ammunition unless they have
been
specially authorized by the Central Government in this
behalf.
4 Remington XCR 700 Compact Tactical Rifles with 20” barrel and 2 Glock 37
Handguns, along with 5 x .308 Win cartridges were seized from the Consulate Office.61

Automatic and semi-
57
Section 27, The Arms Act, 1959. [hereinafter as
Arms Act]
58
Supra note
1.
59
License for manufacture, sale, etc., of arms and
ammunition.
60
Prohibition of acquisition or possession, or of manufacture or sale, of prohibited arms or prohibited
ammunition.

DEFENSE
TIONAL TR
VOCACY MO
OT CO
automatic weapons come under the description of Prohibited Arms62. It may also include
other
arms, which the Central Government may specify to be prohibited arms, by providing
notification in the Official Gazette.63
Remington XCR 700 is a Bolt action rifle and not a semi-automatic i.e. one must need to
work
the bolt manually to eject and camber the next round in comparison to semi auto where
it’s done semi automatically. In case64 the arms in question were not within the definition
of 'prohibited
arms' as defined under Section 2(i) of the Act. The Court held that in order to bring the
arms in
question within the prohibited arms, the requirement of the statute was to issue a formal
notification in the Official Gazette but as the State was relying on an administrative
notification
the same cannot be and treated as a gazette notification and thus the conviction under
Section 27 (3) of the Act was set aside. Also in Santokh Singh v. State of Punjab65 it
was concluded that in
the absence of a notification by the Government declaring the arm as a prohibited arm,
the said
weapon cannot be treated as the one prohibited under

the Act.
Thus Remington does not fall under Prohibited Arms under Section 2(1)(i). Similarly,
Glock 37
Handguns chambers a .45 GAP round which is a Non-Prohibited Bore in Hindon and
also there
is no ban on semi-automatic pistols in Hindon. Thus it is also not a

Prohibited Arm.
Further, .308 Winchester is not mentioned as a Prohibited Bore in Schedule I of the

Arms Rules,
1962. Since neither the rifles, nor the cartridges seized from the Consulate Office fall
under the
prohibited category, Section 5 or Section 7 of the Arms Act, 1959 are not contravened
by the
accused A1 and
A2.
4.1.2. Accused are not liable under Section 27 of the Arms

Act, 1959.
An act causing death of a person by use of any prohibited arms or prohibited

ammunition in contravention of section 5 or section 7 shall be punished with death66.
The Cartridges seized
from the Consulate Office of Deventia are Non-prohibited bores, as they don’t come
under the
61
Forensic Report, Annexure- 6, p.
12.
62
Section 2(1)(i), Arms
Act.
63
Ibid.
64
4 (2003) 1
Subhash Ramkumar Bind Alias Vakil and Anr. v. State of Maharashtra6
SCC 506.
65
Santokh Singh v. State of Punjab 2000 (3) RCR(Cri)
637.
66
Section 27(3), Arms
Act.

DEFENSE
TIONAL TR
VOCACY MO
OT CO
list of Prohibited Bores, provided by the Schedule I of the Arms Rules, 1962. The arms
and the
ammunitions in question, i.e. Remington XCR 700 Compact Tactical Rifles with 20”
barrel ,
Glock 37 Handguns and .308 Win cartridges, also do not come within the purview of
prohibited arms and Prohibited Bores respectively. In State of Punjab Vs. Jarnail singh67
the conviction of
accused under section 27(3) was set aside as there was lack of evidence to establish
that the arm
entrusted to the accused was a prohibited automatic

weapon.
Further, Prohibited arms as defined under Section 2(1)(i) of the Arms Act and Section 7
clearly
spells out that prohibited arms would be such other arms as the Central Government
may, by
notification in the official Gazette specify to be prohibited arms, but in the instant case,
no such
notification has been placed on the record, nor the same has been brought to our
notice, which
could spell out that the weapon in question and its ammunition have been declared as
prohibited
arms and
ammunition.68
Since neither section 5 nor section 7 of the Arms Act, 1959 has been contravened the
accused A1
and A2 are not liable to be punished under Section 27 of

the Arm.
4.1.3. Section 27(3) of the Arms Act, 1959 is

unconstitutional.
The Section is widely worded in a manner so as to mandatorily imposed punishment of

death on
the person for any act in contravention with Section 7. Therefore, the provision of
Section 27(3) of the Act is violative of Articles 14 and 21 of the Constitution.69
Imposing mandatory death penalty under Section 27 (3), the Arms Act runs contrary to
those
statutory safeguards which give [the] judiciary the discretion in the matter imposing [the]
death
penalty. Section 27(3) of the Arms Act is thus ultra vires the concept of judicial review,
which is one of the basic features of our Constitution.70
Apart from that, Section 27 (3) is a post-constitutional law and has to obey the injunction
of
Article 13 which is clear and explicit. Article 13 (2) says ‘The State shall not make any
law
which takes away or abridges the rights conferred by this Part and any law made in
contravention
67
State of Punjab v. Jarnail Singh 67
2011(3)RCR(Criminal)244.
68
Sher Singh v. State of Punjab, 1983 AIR
465.
69
Justice Ganguly & Justice Khehar, Supreme Court of
India.
70
J. Venkatesan, “Supreme Court strikes down Arms Act provision for Mandatory Death”, The Hindu,
February 8, 2012,
p.1.

DEFENSE
TIONAL TR
VOCACY MO
OT CO
of this clause shall, to the extent of the contravention, be void. In view of the mandate of
Article
13 of the Constitution, Section 27(3) having been enacted in clear contravention of

fundamental
rights, Section 27(3) of the Act is repugnant to Articles 14 and 21 and is void. Section
27(3) of
the Act also... [Prevents] the judiciary from discharging its constitutional duties of judicial
review, whereby it has the power of using discretion in the sentencing procedure.71
Suppression of Unlawful Acts Against Safety of Maritime Navigation and

Fixed
Platforms on Continental Shelf Act,

2002.
It is most humbly submitted to the Court Sections 3(1)(a), 3(1)(b) and 3(1)(g) of the
Suppression
of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on

Continental
Shelf Act, 2002 talks of the offences against the safe navigation of the ship. As per the
facts of
the case, there has been no act on the part of A1 and A2, which falls under the purview
of the
mentioned
sections.
4.2.1. A1 and A2 are not liable under Sections 3(1)(a) of the Continental
Shelf Act,
2002. S ection 372 prescribes the offences against the safe navigation of any
ship. The section says, any
offence caused to a ship, if that ship is navigating or scheduled to navigate into, through
or from
waters beyond the outer limits of the territorial waters of India, or the lateral limits of its
territorial waters with adjacent States or, when the offence is committed on board a ship
in the
territorial waters of India or against a fixed platform located on the Continental Shelf of
India. If
these required conditions are not fulfilled, the offence cannot fall under the ambit of
Section 3 of
the
Act.
Also Sec 3(1)(a) of the Act talks about the Offences against ship, fixed platform, cargo
of a ship,
maritime navigational facilities, etc It is pleaded before the court that there has been no
act of
firing any bullets at the boat by A1 and A2. The shots were fired in the air to scare the
persons
who were trying to scale the wall of the consulate

library.
The deceased, D1 and D2 and also the boat that they were loading were present on the
opposite
side of the consulate. None of the shots fired by the accused caused any damage to the
ship. As
71
Ibid.
72
Section 3, Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on
Continental Shelf Act, 2002. [ hereinafter as Continental Shelf Act]

DEFENSE
TIONAL TR
VOCACY MO
OT CO
per the conditions mentioned under the section, the act should be unlawful, intentional
and
violent. And as the facts suggest that there has been no such act on the part of A1 and
A2 which
can affect the safe navigation of the boat, and hence cannot be
made liable.
4.2.2. A1 and A2 are liable under Sections 3(1)(b) and 3(1)(g) of the
Continental
Shelf Act,
2002.
It is humbly submitted before Court that A1 and A2 are not liable under section 3(1)(b)
as there
is was no act that was committed by them which would fall under the head of offences
against
safe navigation of a ship. As per the Section 3(1)(b), whoever unlawfully and
intentionally-
destroys a fixed platform or a ship or causes damage to a fixed platform or a ship

or
cargo of the ship in such manner which is likely to endanger the safety of such
platform
or safe navigation of such ship shall be punished with imprisonment

for life.
Again it is pleaded that to be guilty for an offence, it must be committed by the persons
accused
for it. None of the witness claim to have seen the accused A1 and A2 shooting at the
trailer.
Their claim is to have heard sounds from the opposite side which would not be sufficient
to
prove the guilt of the accused. Hence, there is no act on the part of A1 and A2, which
can affect
the safe navigation of the ship, they cannot be held liable under this
section.
unconstitution
al.
Section 3(1)(g) is word similar to Section 27(3) of the Arms Act, 1959,which provides for
death
penalty. It ignores the acts resulting into death accidently, unintentionally. The
mandatory clause
also restricts the judiciary from exercising its discretion and judicial revise in the matter
of
imposing death penalty. This is against the constitutional provisions and in

contravention with Article 1373 and is repugnant to Articles 21 and 14 of the Indian
Constitution. Hence, the section
should be declared
unconstitutional.
73
Article 13(2), The Indian Constitution: The State shall not make any law which takes away or abridges
the rights conferred

by this Part and any law made in contravention of this clause shall, to the extent of the
contravention, be void.

DEFENSE
TIONAL TR
VOCACY MO
OT CO
URT COMPETITION, 2012 XI
PRAYE
R
Wherefore, in light of the above, it is most humbly prayed that this Court may be
pleased to
adjudge and declare

that:
• The actions of the accused, A1 and A2 were bonafide, and were free of mens rea
and
hence, they cannot be convicted under Section 302 of

the HPC.
• The act of A1 and A2 are not liable under Sec.27 of The Arms Act,1959 as Sec.5
and
Sec.7 are not

contravening.
• A1 and A2 are not liable under Sec.3(a), 3(b) and 3(g) of The Suppression of
Unlawful
Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental

Shelf
Act,
2002.
And pass any other order in favour of the Respondent that it may deem fit in the ends
of Justice,
Equity and Good

Conscience.
And the Respondent shall ever beseech the Hon’ble Court for this cognitive
consideration.
Counsels for the

Respondent.
DEFENSE

Memorial-Defense 1 PDF

Diunggah oleh

Informasi Dokumen

Judul Asli

Hak Cipta

Format Tersedia

Bagikan dokumen Ini

Bagikan atau Tanam Dokumen

Opsi Berbagi

Apakah menurut Anda dokumen ini bermanfaat?

Apakah konten ini tidak pantas?

Hak Cipta:

Format Tersedia

Memorial-Defense 1 PDF

Diunggah oleh

Hak Cipta:

Format Tersedia

S​URANA ​& S​URANA ​N​ATIONAL ​T​RIAL ​A​DVOCACY ​M​OOT ​C​OURT ​C​OMPETITION​, 2012

W​RITTEN ​S​UBMISSION ON BEHALF OF THE

SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITIoN–2012

I​N THE ​H​ON​’​BLE ​C​OURT OF

S​TATE OF ​M​AKULE ​P​ROSECUTION

R​UMY AND ​S​HORT ​D​EFENSE

U​NLAWFUL ​A​CTS ​A​GAINST ​S​AFETY OF ​M​ARITIME ​N​AVIGATION AND ​F​IXED ​P​LATFORM ON

M​EMORIAL ​D​RAWN AND ​S​UBMITTED ON ​B​EHALF OF ​D​EFENDANTS

​ ould not be applicable to instant case.

3.3. The Act of the accused is covered under Self Defence.

3.4.1. The documentary evidence is not reliable.

3.4.2. The Accused is entitled to get the Benefit of Doubt.

4.1.3. Section 27(3) of the Arms Act, 1959 is unconstitutional.

W​RITTEN ​S​UBMISSION ON BEHALF OF THE

4.2.3. Section 3(1)(g) of the Continental Shelf Act should be declared

Dahyabhai Chhaganbhai Thakker v. State of Gujarat,

Director of Enforcement v. M.C.T.M.Corporation Pvt. Ltd ,​ AIR 1996 SC 1100

Ghulam Hyder Imam Baksh v. Emperor, ​AIR 1938 Sind 63

Kollias v. D & G Marine Maintenance​, 29 F.3d 67, 71 (2d Cir. 1994),

Morrison v. National Australia Bank​, ​130 S. Ct. 2869 (2010)

Ram Kumar v. State of Rajasthan, A ​ IR 1970 Raj

Raymund Gancieneo v. State of Kerela,​ 2003(3)KLT174

S.S. ​“​Lotus​” F ​ rance v. Turkey​., ​(1927), P.C.I.J. (Ser. A) No.10

Santokh Singh v. State of Punjab ​2000 (3) RCR(Cri) 637

Saudi Arabia v Nelson, ​507 US 349 - Supreme Court 1993

Sher Singh v. State of Punjab, 1 ​ 983 AIR 465

State of Bihar v. Ramesh Singh, A ​ IR 1977 S.C. 2018.

State of Gujrat v. Mohanlal Kuberds; 1 ​ 975 Guj LR 260

State Of Punjab v. Jarnail Singh 2 ​ 011(3)RCR(Criminal)244

​ llahabad: Central Law

W​RITTEN ​S​UBMISSION ON BEHALF OF THE

​ ew York: Oxford University

​ ew Delhi: Universal Law Publishing

Company Pvt. Ltd.,

• Modi, ​Medical Jurisprudence and Toxicology​, Nagpur: Lexis nexis Butterworths

​ llahabad: Dwivedi and Company,

• Sharma B.R., ​Scientific Criminal Investigation​, New Delhi: Universal Publishing

International Law Online, ​2011, vol. 2, p.

Hastings Law Journal, 1990, vol. 44, pp. 351,

​ 989, vol 13,

2005, vol. 16, p.

International Law, ​September 7, 1927, vol. I,

International & Comparative Law Quarterly,​ 1991,

Weidenfeld and Nicolson,​ 1993, pp.

Justice?”, ​Chatham House: Briefing Paper, ​April 2010,

• Ferris Charles, “Extraterritorial Boundaries of federal Securities Law (Berch v. Drexel

• Mulcahy James and Mahony Charles O., “Anticipatory Self-Defence: A Discussion of

Hunting Ammunition”, ​Forensic science Journal, ​January 1997,

• Arms Act, 1959

• Code of Criminal Procedure,

• Hindon Penal Code,

• Indian Evidence Act,

• Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed

on Continental Shelf Act,

• Vienna Convention on Consular Relations,

W​RITTEN ​S​UBMISSION ON BEHALF OF THE

​ ​ed., United States: Thomson-West Publishing Company,

CCTV camera who looked similar to the

complaint would be withdrawn. In the meanwhile, consulate on the direction of the

also paid a compensation of rupees 5 Lakhs to each of the victims’

Laws of Hindon are analogous to laws of

1.1. The judgment of the ​Lotus Case ​would not be applicable to

2.1. Hindon Penal Code provides for Immunity to Consuls under

SURANA & SURANA NATIONAL TRIAL ADVOCACY MOOT COURT COMPETITION, 2012

WRITTEN SUBMISSION ON BEHALF OF THE

IN THE HON’BLE COURT OF

STATE OF MAKULE PROSECUTION

RUMY AND SHORT DEFENSE

UNLAWFUL ACTS AGAINST SAFETY OF MARITIME NAVIGATION AND FIXED PLATFORM ON

MEMORIAL DRAWN AND SUBMITTED ON BEHALF OF DEFENDANTS

ould not be applicable to instant case.

WRITTEN SUBMISSION ON BEHALF OF THE

Director of Enforcement v. M.C.T.M.Corporation Pvt. Ltd , AIR 1996 SC 1100

Ghulam Hyder Imam Baksh v. Emperor, AIR 1938 Sind 63

Kollias v. D & G Marine Maintenance, 29 F.3d 67, 71 (2d Cir. 1994),

Morrison v. National Australia Bank, 130 S. Ct. 2869 (2010)

Ram Kumar v. State of Rajasthan, A IR 1970 Raj

Raymund Gancieneo v. State of Kerela, 2003(3)KLT174

S.S. “Lotus” F rance v. Turkey., (1927), P.C.I.J. (Ser. A) No.10

Santokh Singh v. State of Punjab 2000 (3) RCR(Cri) 637

Saudi Arabia v Nelson, 507 US 349 - Supreme Court 1993

Sher Singh v. State of Punjab, 1 983 AIR 465

State of Bihar v. Ramesh Singh, A IR 1977 S.C. 2018.

State of Gujrat v. Mohanlal Kuberds; 1 975 Guj LR 260

State Of Punjab v. Jarnail Singh 2 011(3)RCR(Criminal)244

llahabad: Central Law

WRITTEN SUBMISSION ON BEHALF OF THE

ew York: Oxford University

ew Delhi: Universal Law Publishing

• Modi, Medical Jurisprudence and Toxicology, Nagpur: Lexis nexis Butterworths

llahabad: Dwivedi and Company,

• Sharma B.R., Scientific Criminal Investigation, New Delhi: Universal Publishing

International Law Online, 2011, vol. 2, p.

989, vol 13,

International Law, September 7, 1927, vol. I,

International & Comparative Law Quarterly, 1991,

Weidenfeld and Nicolson, 1993, pp.

Justice?”, Chatham House: Briefing Paper, April 2010,

Hunting Ammunition”, Forensic science Journal, January 1997,

WRITTEN SUBMISSION ON BEHALF OF THE

ed., United States: Thomson-West Publishing Company,

1.1. The judgment of the Lotus Case would not be applicable to

AGAINST SAFETY OF MARITIME NAVIGATION AND FIXED PLATFORMS ON CONTINENTAL

WRITTEN SUBMISSION ON BEHALF OF THE

2. WHETHER THE TWO ACCUSED ARE ENTITLED TO IMMUNITY?

AGAINST SAFETY OF MARITIME NAVIGATION AND FIXED PLATFORMS ON CONTINENTAL

WRITTEN SUBMISSION ON BEHALF OF THE

WRITTEN SUBMISSION ON BEHALF OF THE

WRITTEN SUBMISSION ON BEHALF OF THE

WRITTEN SUBMISSION ON BEHALF OF THE

WRITTEN SUBMISSION ON BEHALF OF THE

West Publishing Company, 2004), p. 1291.

WRITTEN SUBMISSION ON BEHALF OF THE

nd showing that there must

WRITTEN SUBMISSION ON BEHALF OF THE

WRITTEN SUBMISSION ON BEHALF OF THE

The Apex Court in the case of Director of Enforcement v. M.C.T.M.Corporation Pvt.

n part of the accused in causing

WRITTEN SUBMISSION ON BEHALF OF THE

WRITTEN SUBMISSION ON BEHALF OF THE

WRITTEN SUBMISSION ON BEHALF OF THE

AGAINST SAFETY OF MARITIME NAVIGATION AND FIXED PLATFORMS ON CONTINENTAL

WRITTEN SUBMISSION ON BEHALF OF THE