NRMC 446 (Respondent)

TC: 48
RGNUL INTRA MOOT, 2019
IN THE HON’BLE DHILLIKA HIGH COURT OF HIND
(FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF INDICA)
CRIMINAL/ JURISDICTION
IN THE MATTERS OF:
W.P. (CRIMINAL) NO. ____ OF 2019

MR. X………………....…………..…..…...………………………………….…...PETITIONER
VERSUS
UNION OF INDICA…….…………………………………………………………...RESPONDENT
-MEMORANDUM ON BEHALF OF THE RESPONDENTS-
PAGE | I
-TABLE OF CONTENTS-
-LIST OF ABBREVIATION ............................................................................................... IV
-INDEX OF AUTHORITIES ............................................................................................ VIII
-STATEMENT OF JURISDICTION ............................................................................... XVI
-STATEMENT OF FACTS .............................................................................................. XVII
-ISSUES RAISED................................................................................................................. XX
-SUMMARY OF ARGUMENTS...................................................................................... XXI
-ARGUMENTS ADVANCED.................................................................................................1
I. THE PETITIONS FILED ARE NOT MAINTAINABLE IN THE SUPREME
COURT OF INDICA........................................................................................................ 1
[A] THAT THE WRIT PETITION (Crl.) NO. 980 OF 2013 FILED UNDER ARTICLE
32 OF THE CONSTITUTION OF INDICA IS NOT MAINTAINABLE. ................ 1
i) That the Undercover operation is constitutional & there has been no infringement
of fundamental rights. ......................................................................................... 1
ii) That the Essentials of Habeas Corpus have not been met. ................................. 2
iii) That the Local remedies have not been exhausted. ............................................ 3
a) That the petitioner may approach the High Court under Art. 226. ......................3
b) That the rule of exhaustion of local remedies is not a violation of Art.32. .........3
[B] THAT THE PIL FILED IS NOT MAINTAINABLE. ............................................... 4
i) That there has been no violation of the fundamental rights. .............................. 4
ii) That the requisite locus standi is not present. ..................................................... 5
[C] THAT THE WRIT PETITION FILED BY MASTER Z IS NOT
MAINTAINABLE… ................................................................................................ 6
MEMORIAL for RESPONDENT TABLE OF CONTENTS

PAGE | II
i) That no infringement of fundamental rights concerned. .................................... 6
ii) That the petitioner has no locus standi. .............................................................. 7
II. THAT THE COVERT OPERATION FORMULATED BY THE STATE OF A&P
WAS LEGAL AND VALID. ............................................................................................ 7
[A] DNA EVIDENCE COLLECTED UNDER COVERT OPERATION IS
ADMISSIBLE ............................................................................................................ 7
i) Significance of DNA Evidence in Crime Resolution ......................................... 7
ii) Apparent Conflict between Right to Privacy and Public Interest ....................... 8
iii) Collection and use of DNA sample not violative of Article 20(3): .................. 11
[B] THAT THE SEARCH AND SEIZURE CONDUCTED IN PURSUANCE OF
COVERT POLICY IS ADMISSIBLE AND VALID .............................................. 12
i) The Search and Seizure is in accordance with Code of Criminal Procedure
(CrPC) ............................................................................................................... 12
ii) Search and Seizure complies with the provisions of NDPS Act ...................... 13
[C] TAPE RECORDINGS AND CONFESSIONS OF MULES INVOLVED IN ILLICIT
DRUG TRAFFICKING DID NOT VIOLATE THE RIGHT TO REFRAIN FROM
MAKING A STATEMENT ..................................................................................... 15
i) There is no infraction of Fundamental Rights .................................................. 15
ii) Admissibilty of Tape Recording and Confessional Statements ....................... 17
III. THAT THE DNA DATABASE WILL BE VIOLATIVE OF THE
CONSTITUTIONAL PROVISIONS ........................................................................... 19
[A] THAT THERE ARE POSSIBILITIES OF ETHICAL-LEGAL PROBLEM IN
RETENTION AND PRESERVATION OF THE DNA SAMPLES ........................ 19

PAGE | III
[B] THAT THE ISSUE OF GUIDELINES BY THE COURT WILL BE INTRUSION IN
THE LEGISLATIVE DOMAIN. ............................................................................. 21
IV. THAT THE DNA SAMPLE COLLECTED BE USED FOR PATERNITY
TEST ............................................................................................................................... 24
[A] POWER OF THE COURT TO DIRECT DNA TEST FOR PARENTAGE ........... 24
[B] THAT THERE IS NO VIOLATION OF THE RIGHT TO PRIVACY. ................. 25
[C] THAT THE BEST INTEREST OF THE CHILD LIES IN THE PATERNITY
TEST........................................................................................................................ 27
-PRAYER ......................................................................................................................... XXIII

PAGE | IV
-LIST OF ABBREVIATION-
ABBREVIATION EXPANSION
& And
S. Section
¶ Paragraph
AIR All India Reporter
Anr. Another
Art. Article
CONST. Constitution
CRC Convention on the Rights of the Child
Crl. Criminal
CrLJ Criminal Law Journal
DNA Deoxyribonucleic Acid
ECtHR European Court of Human Rights
Ed. Edition
EHCR European Convention on Human Right
ER English Reports
MEMORIAL for RESPONDENT LIST OF ABBREVIATIONS

PAGE | V
Govt. Government
GWA Guardianship and Wards Act
Hon'ble Honourable
HR Human Rights
JJ Juvenile Justice
Ltd. Limited
Narcotic Drugs and Psychotropic

NDPS
Substances
NGO Non-Governmental Organization
No. Number
Ors. Others
Pg. Page
PIL Public Interest Litigation
PUCL People’s Union for Civil Liberties
Re. Reference
Regd. Registered
Rep. Report
SC Supreme court

PAGE | VI
SCC Supreme Court Cases
Sch. Schedule
SCR Supreme Court Report
Supp. Supplementary
TAJ Technology for All & Justice
U.O.I Union of India
UDHR Universal Declaration of Human Rights
UN United Nations
US United States
v. Versus
vol. Volume
W.P. Writ Petition
C.I.D Crime Investigation Department
C.B.I Central Bureau of Investigation
Retd. Retired
H.C. Hight Court
UT Union Territory

PAGE | VII
Lah. Lahore
Mad. Madras
ILR Indian Law Reports
Punj. Punjab
Chap. Chapter
Ss. Sections

PAGE | VIII
-INDEX OF AUTHORITIES-
INDIAN CASES
Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119 .............................................................18
Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645 ...........................3
Allah Ditta v. The Crown, AIR 1937 Lah. 620 ........................................................................18
Amarjit Kaur v. Harbhajan Singh, (2003) 10 SCC 228 ...........................................................25
Ananth Kumar v. ST. of A.P.1997, CrLJ. 1797 .......................................................................12
Andhra Industrial Works v. Chief Controller of Imports, AIR 1974 SC 1539..................2, 5, 7
Andhra Sugar vs. State of Andhra Pradesh, AIR 1968 SC 599 ............................................... 27
Anjan Das Gupta v. State of West Bengal, (2007) 11 SCC 222 ..............................................12
Apren Joseph v. The State of Kerala, (1973) 3 SCC 114.........................................................12
Bai Radha v. State of Gujrat, AIR 1970 SC 1396 ....................................................................13
BALCO Employees Union (Regd.) v. U.O.I, (2002) 2 SCC 333 ..............................................5
Balmiki Singh v. State of Bihar, 2012 CrLJ 61 .......................................................................12
Bandhua Mukti Morcha v. U.O.I, AIR 1984 SC........................................................................3
Bhabani Prasad Jena v. Convener Secretary, Orissa State Commission for Women, AIR 2010
SC 2851 ..........................................................................................................................25, 26
Bhushan Power and Steel Ltd. v. Rajesh Verma, (2014) 5 SCC 551 ....................................2, 7
Bijoe Emmanuel v. State of Kerala, AIR, 1987 SC 748 .......................................................... 15
Bulaqi v. The Crown, ILR (1928) 9 Lah 671, 675 ...................................................................18
Chairman & MD, BPL Ltd. v. SP Gururaja, (2003) 8 SCC 567 ................................................6
Coffee Board v. Jt. Commercial Tax Officer, AIR. 1971 SC 870 .............................................4
Common Cause (A Regd. Society) v. U.O.I, AIR 2008 SC 2116 ...........................................24
D.J Vaghela v. Kantibai Jethabai 1985 CrLJ 974 ....................................................................11
MEMORIAL for RESPONDENT INDEX OF AUTHORITIES

PAGE | IX
Devendra Prasad Tiwari v. State of U.P, AIR 1978 SC 1544 ..................................................17
Dilip & Anr v. State Of M.P, (2001) 9 SCC 452 .....................................................................13
District Registrar & Collector, Hyderabad & Anr. v. Canara Bank & Ors, (2005) 1 SCC 496 8
Divakaran v. State of Kerala 1998 (2) KLT 53........................................................................ 14
Dukhtar Jahan v. Mohd Farooq, (1987) 1 SCC 624.................................................................25
Federation Bar Association in Karnataka v. U.O.I, AIR 2000 SC 2544 ...........................2, 5, 7
Gainda Ram & Ors. v. MCD and Ors, (1993) 3 SCC 178 .......................................................24
Ganu Ram v. Rikhi Ram Kaundal, AIR 1984 SC 1513 ...........................................................13
Gautam Kundu v. State of West Bengal, AIR 1993 SC 2295 .............................................9, 25
Girja Prasad v. State of M.P., (2007) 7 SCC 625 .................................................................... 15
Govind v. State of Madhya Pradesh, AIR 1975 SC 1378....................................................8, 26
Govind v. State of Rajasthan, AIR 1975 SC 1378 ...................................................................16
Guddu Shukla v. State of Jharkhan, 2006 CrLJ 1883 ..............................................................19
Gujarat State Financial Corporation v. Lotus Hotel, AIR 1983 SC 848 ....................................3
Hanumamma v. Polavarapu Subbayya, 1951 1 MLJ 580 ........................................................24
Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184 .........................................................19
Harihar Polyfibres v. Regional Director, E.S.I. Corporation, AIR 1984 SC 1680 ..................13
Husaini Umar v. Dalip Singhji, AIR 1970 SC 45 ....................................................................19
In re Man Singh, AIR 1959 MP 267 ........................................................................................18
Indira Nehru Gandhi v. Raj Narain and Anr., 1975 (Supp.) SCC 1 .........................................21
Janata Dal v. HS Chowdhary, AIR 1993 SC 892.......................................................................6
Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 ...............................................................21
Justice K S Puttaswamy (Retd.) v. U.O.I, (2017) 10 SCC 1 ...................................2, 6, 8, 9, 10
Kaju v. State, 1985 CrLJ 367 ...................................................................................................18
Kanchan Bedi v. Gurpreet Singh Bedi, AIR 2003 Del 446 .....................................................26

PAGE | X
Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159. ................................................4
Kartar Singh v. State of Punjab, AIR 1967 SC 1643 ...............................................................21
Kesavananda Bharati v. State of Kerala & Anr (1973) 4 SCC 225 .........................................21
Khalek Sheikh v. West Bengal, (2006) 7 SCC 439 .................................................................15
Kharak Singh v. State of U.P., AIR 1963 SC 1295 ...................................................................4
Khet Singh v. U.O.I, (2002) 4 SCC 380 ..................................................................................14
KK Kochunni v. State of Madras, AIR. 1959 SC 725 ...............................................................4
Kusum Ingots & Alloys Limited v. UOI, (2004) 6 SCC 254 ....................................................3
L. C. Golak Nath & Ors. v. State of Punjab & Anr., AIR 1967 SC 1643 ................................22
Lokesh Katara v. H.C of Gujarat, (2017) 2 SCC 427 ................................................................4
Lokniti Foundation v. Union of India And Ors., (2015) 13 SCC 622 .....................................23
Lonimohon Das v. UT of Manipur, 1974 CrLJ 1186 ..............................................................17
M Vijaya v. Chairman and Managing Director, Singareni Collection, AIR 2001 AP 502 ...8, 9
M.P. v. Paltan Mallah, (2005) 3 SCC 169 ............................................................................... 13
Mahabir Prasad v. Surinder Kaur, A.I.R 1982 SC 1043 ..........................................................17
Malak Singh v. State of Punjab, AIR 1981 SC 760.............................................................8, 16
Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, 2012 (3) SCALE 550 .....29
Modan Singh v. State of Rajasthan, (1978) 4 SCC 435 ...........................................................13
Mohd. Sadiq v. State 1990 (1) Crimes 644 ..............................................................................13
Ms. X v. Mr. Z, 1991 (1) JCC 101 ...........................................................................................28
New Central Jute Mills Co. Ltd. v. TN Kaul, AIR 1976 Cal 178 ............................................15
P.V. Valsan s/o Kannan Nambiar v. Station House Officer ....................................................11
Pandit M.S.M. Sharma v. Dr. Shree Krishna, 1959 Supp (1) SCR 806...................................23
Pandya v. U.O.I, AIR 1963 Punj 198 .......................................................................................18
Paramhansa v. State, AIR Ori 144 ...........................................................................................18

PAGE | XI
Prashottam Dass v. State, 1975 CrLJ 309 ................................................................................12
Praveen Kumar v. State of Karnataka, (2003) 12 SCC 199 .....................................................19
Prem Chand Garg v. Excise Commissioner, AIR 996 SC 1963. ...............................................4
R. Rajgopal v. U.O.I, AIR 1995 SC 295 ....................................................................................8
R.M Malkani v. State of Maharashtra, AIR 1973 SC 157 .......................................................17
Radhakishan v. State of UP, AIR 1963 SC 822 .......................................................................15
Raja Narayan Lal Bansilal v. Maneck Firoz Mistry, AIR 1961 SC 29 ....................................16
Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, 2007 3 SCC 184 ............................................23
Rajeslz Sharma v. State of Uttaranchal, 2005 CrLJ 2646, 2658. .............................................18
Ramachandran v. State of Kerala, 2009 CrLJ 168 ...................................................................18
Ramakrishna v. State of Bombay, AIR 1955 SC 104 ..............................................................18
Raman Lal Bhogi Lal Shah v. V.K. Guha, AIR 1973 SC 1196 ...............................................17
Ramanathan v. State of Tamil Nadu, AIR 1978 SC 1204. ........................................................8
Rameshwar v. State of Madhya Pradesh and another 1994 Drug Cases 129...........................15
Rami Reddy Pullunnagari, AIR 1941 Mad 238 .......................................................................19
Ramlila Maidan Incident v. Home Secretary, U.O.I (2012) 5 SCC 1......................................15
Ranji Thomas v. U.O.I, J.T., 1998 (2) SCALE 744 ...................................................................6
Re. Powers Privileges and Immunities of State Legislatures, (1965) 1 SCR 413 ...................23
Registrar of Firm v. Secured Investment Co., AIR 1988 SC 492 ............................................13
Reynold Rajamani v. U.O.I, AIR 1982 SC 1261 .....................................................................13
RK Dalmia v. Delhi Administration, AIR 1962 SC 1821........................................................18
Rohit Shekhar v. Narayan Dutt Tiwari & Another, (2012) 12 SCC 554.....................21, 27, 28
RomeshThappar v. State of Madras AIR 1950 SC 124 ............................................................. 3
S. Pratap Singh v. The State of Punjab, AIR 1964 SC 72 ........................................................17
S.P. Gupta v. U.O.I, AIR 1982 SC 149......................................................................................5

PAGE | XII
S.S. Sakhar Kharkhana Ltd. v. CIT Kolhapur, AIR 2004 SC 4716 .........................................27
Sajan Abraham v. State of Kerala, (2002) 6 SCC 692 .............................................................14
Santokh Singh v. Delhi Administration, AIR 1972 SC 1091 ..................................................15
Santosh Boro v. State of Meghalaya, (2008) 4 GLR 55 ..........................................................17
Santosh Kumar Singh v. State, (2010) 7 SCC 263 ....................................................................8
Secretary ONGC Limited v VU Warrier, (2005) 5 SCC 245 ....................................................3
Selvi v. State of Karnataka (2010) 7 SCC 263 .........................................................................11
Shamdasni v Central Bank of India, AIR 1952 SC 59. ..............................................................1
Shankapa Rai v. Emperor, ILR Mad 127 .................................................................................19
Shankar Narayan Bhadolkar v. State of Maharastra, (2005) 9 SCC 71 ...................................18
Sharda v. Dharampal, AIR 2003 SC 3450.............................................................24, 25, 28, 29
Shri N. Sri Rama Reddy v. Shri V. V. Giri, AIR 1971 SC 1162 .............................................17
Stanlev Robert v. Assistant Collector (Customs) 2000 Drugs cases 485.................................15
State of Bihar v. KP Verma, AIR 1965 SC 575 .........................................................................2
State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808........................................11, 16, 18
State of Himachal Pradesh v. A Parent of A Student of Medical College, Shimla and Ors.,
1985 SCR (3) 676................................................................................................................. 22
State of Himachal Pradesh v. Pirthi Chand, AIR 1996 SC 977 ...............................................15
State of Himachal Pradesh v. Student's Parent, Medical College, Shimla, AIR 1985 SC 910..6
State of Karnataka v David Razario, AIR 2002 SC 3272 ........................................................ 18
State of Maharahtra v. Natwarlal Damodardas Soni, AIR 1980 SC 593 .................................13
State of Maharashtra & Anr. v. Madhukar Narayan Mardikar, AIR 1991 SC 207....................8
State of Maharashtra v. Damu Gapinath Shinde, AIR 2000 SC 1691 .....................................18
State of Punjab v. Balbir Singh, AIR 1994 SC 1872 ...............................................................14
State of Punjab v. Jasbir Singh and others (1996) 1 SCC 288 .................................................15

PAGE | XIII
State of Rajasthan v. Bhup Singh, (1997) 10 SCC 675............................................................18
State of Tamil Nadu v. Abu Kbur Bi, AIR 1984 SC 326 .........................................................13
State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125 .......................................................18
State of West Bengal & Ors. v. Committee for protection of Democratic Rights, West Bengal
& Ors., AIR 2010 SC 1476 .................................................................................................. 22
State through Superintendent of Police, CBI/SIT v. Nalini and others, (1999) 5 SCC 253. .....8
State v. Gouranga Sahu, 1978 CrLJ 276 ..................................................................................17
Subhaya Gounder v. Bhoopala, AIR 1959 Mad 396................................................................12
Subramanian Swamy v. Union of India, (2016) 7 SCC 221 ......................................................9
Sukhan v. Emperor, AIR 1929 Lah. 344 ..................................................................................18
Surendra Koli v. State of U.P., (2011) 4 SCC 80.......................................................................8
Suresh Chand Gautam v. State of UP, (2016) 11 SCC 113 .......................................................6
Sushil Sharma v. The State (Delhi Administration), 1996 CrLJ 3944. ......................................8
Swayambar Prasad v State of Rajasthan, AIR 1972 Raj. 69 ......................................................3
Tapinder Singh v. State of Punjab, A.I.R 1970 SC 1566 .........................................................12
The Fertilizer Corporation Kamgar Union v. U.O.I, AIR 1981 SC 344........................1, 2, 5, 7
Tilak v. State of M.P., 1978 CrLJ 276 ..................................................................................... 17
V.C. Chandhira Kumar v. Tamil Nadu Legislative Assembly, 2013 (6) CTC 516 .................23
X v. Z, AIR 2002 Del. 217 .........................................................................................................9
Yusuf Bachakhan v. State of Karnataka, 2008 CrLJ (NOC) 1292 ..........................................18
Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147 .....................................17
FOREIGN CASES
Katz v. United States 389 U.S. 347 (1967)........................................................................10, 17
Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574 .........................................10
Laznovsky v Lazonovsky 74.5 A 2d 1054(Md Ct App 2000) .................................................10

PAGE | XIV
LB v. YD 2009 5 SA 463 (T) ...................................................................................................26
R v. Chief Constable of South Yorkshire, (2003) All ER 148 .................................................10
R. v. Leatham, (1861) 8 Cox.C.C.498 .....................................................................................17
S and Marper v. United Kingdom, (2008) ECHR 1581...........................................................21
Saunders v. United Kingdom, (1997) 23 ECHR 313 ...............................................................12
The State v. Mogamat Phadiel Orrie & Anr, (SS32/2003) [2004] ZAWCHC 48 ...................21
Zunga v. Pierce 714 F2d 632 (1983) ........................................................................................10
CONSTITUTION
INDIA Const. ...........................................................................................................3, 11, 16, 23
STATUTES
Code of Criminal Procedure, 1973...........................................................................................14
Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 ......................................12
COMMITTEE REPORTS
A.P. SHAH, REPORT OF THE GROUP OF EXPERTS ON PRIVACY ................................................................... 9
CONVENTIONS
Convention for the Protection of Human Rights and Fundamental freedoms .........................10
INTERNET DOCUMENTS
Narcotic Drugs and Psychotrophic Substances Act, 1985.................................................13, 14
JOURNALS
CrLJ, Journal ..............................................................................................................................7

PAGE | XV
Margarita Guillen, Maria Victoria Lareu, Carmela Pestoni, Antonio Salas and Angel
Carracedo, Ethical-legal problems of DNA databases in Criminal investigation, University
of Santiago de Compostela, Spain Journal of Medical Ethics; 26:226-271 (2000) ............. 20
BOOKS
ALEX SAMUEL & DR. SWATI PARIKH, DNA TESTS IN CRIMINAL INVESTIGATION AND
PATERNITY DISPUTES ...................................................................................................................................... 25
GLANVILLE AUSTIN, THE INDIAN CONSTITUTION- CORNERSTONE OF A NATION............................22
M.P JAIN, INDIAN CONSTITUTIONAL LAW 1429 (LexisNexis, 8th ed. 2018).............5, 15, 16, 17
M.P JAIN, INDIAN CONSTITUTIONAL LAW 463 (LexisNexis, 8th ed. 2018) ................................. 2
R. WILLIAMS, P. JOHNSON, CIRCUITS OF SURVEILLANCE SURVEILL ....................................................20
SCHNEIDER PM. DATENBANKENMITGENETISCHEN MERKMALEN VON STRAFTAFTATERN,
CRIMINAL DNA DATABASES: DATA PROTECTION AND SECUTIRY .................................................... 19

PAGE | XVI
-STATEMENT OF JURISDICTION-
With reference to the circumstances that have been presented in the instant case, the respondent
humbly challenges the jurisdiction invoked by the petitioner before the Hon’ble Supreme
Court.
MEMORIAL for RESPONDENT STATEMENT OF JURISDICTION

PAGE | XVII
-STATEMENT OF FACTS-
PART I
1. 'Republic of Indica' is as a 'Union of States' of which 'Federalism' is one of the basic
features. The Constitution of Indica establishes the Supreme Court of Indica as its final
interpreter and is considered as the custodian of basic civil rights and liberties of its citizens.
The constitutional governance in Republic of Indica is based on the principles of 'rule of law'
and liberal democracy. The constitutional, legal and policy framework of Republic of Indica
are pari materia to the Republic of India.
2. Under the constitutional scheme of Indica, the State of A&P is endowed with a special
constitutional status pari materia to the Article 370 of the Constitution of Indica. The State of
A&P shares very hostile international boundary from three sides due to which the Republic of
Indica is facing higher militancy and internal insurgency at the behest of some of the banned
outfits/ organization.
PART II
3. In the State of A&P, the rate of drug abuse is alarming. Not only Youths, aged 13 – 35,
are reportedly more involved in drug abuse but the Govt. of A&P also believed that the local
militancy and insurgency is also financed in the 'State' from the proceeds of the income
generated from the illicit drugs trafficking. Thus, the Government of A&P has formulated a
'Covert Operation Policy' to break into the syndicate of illegal drugs trafficking.
4. The police authority placed two police officers in one of the syndicates known as 'Little
Blue Fancy' who gathered many evidences, seized consignments of illegal drugs, codes used
by the agents (mules) of the syndicate, DNA samples etc. Based upon the Forensic Science
Lab (FSL) reports prepared by the State Agencies, several arrests were also made.
MEMORIAL for RESPONDENT STATEMENT OF FACTS

PAGE | XVIII
5. The Covert operation continued for two long years and was abandoned with the change
of government in the State of A&P in the year 2012. The entire evidence collected and related
case files, were handed over to Central Bureau of Investigation i.e. CBI. It would be in the
domain of CBI / Central Govt. of Indica to re-open, re-investigate and re-assess the evidences
in any of the FIRs made pursuant to the so called 'undercover operation' as internal insurgency/
militancy in the State of A&P poses a threat to the 'national security' and the very idea of
'Indica'.
PART III
6. Mr. 'X' is a local resident of Satna town in the State of A&P involved in the vocation
of teaching in one of the remote villages i.e. Rusul of Satna in A&P since the year 2010. On
13.06. 2013, an 8-year-old girl child was raped in the vicinity of the school run by Mr. X.
7. DNA samples were collected by the Special Crime Branch CID from the crime scene
as well as of all the individuals from the household which was in the vicinity of 500 meters of
the school. As there was not any sufficient development in relation to the case, The State Govt.
of A&P ordered the transfer of the entire case to the CBI. As the CBI proceeded with a
systematic enquiry into the incident, it found that the DNA sample of Mr. 'X' matches with one
of the DNA samples collected during the undercover operation in the State of A&P. The CBI
immediately arrested Mr. 'X'. At this the lawyer of Mr. 'X' filed a Writ Petition (Criminal) No.
980 of 2013 challenging the arrest of Mr. X
PART IV
8. In the year 2017, one of the coastal states of Indica received incessant rains and the
Republic of Indica declared it as a 'national calamity of severe nature’. ‘Master Z', a 9-year-old
boy lost all his immediate family members and had become an orphan, he wished to serve the
nation after acquiring good education.

PAGE | XIX
9. The State Government expressed its willingness to find the immediate family member
of 'Master Z' and reintegrate the child with the surviving family members. At this point of time
there were various draft Bills were floated by several agencies and instrumentalities of the State
for consideration for a framework for the use DNA technology.
10. A leading NGO named 'Technology for All &Justice -(TAJ)' approached the Supreme
Court of Indica for establishment of a full proof DNA database and to seek guidelines for the
use and application of DNA technology. However, the hazards associated with such technology
on core civil liberties, fundamental values as well as rights are inconceivable.
11. Further the lawyer of Mr. 'X' moved an application before the Supreme Court of Indica
claiming to be the biological father of 'Master Z' and he wants a declaration to that effect. The
alleged minor biological son i.e. 'Master Z' of Mr. 'X' also approached the Hon'ble Supreme
Court of Indica seeking a direction as not to release or use/ misuse of DNA samples collected
by law enforcement agency for the paternity test as claimed by Mr. 'X'.
PART V
12. The petitions have been slated for hearing by a constitution bench of the Supreme Court
of Indica. In light of Article 32 of the Constitution read with the Supreme Court Rules, 2013,
only substantial questions involving the interpretation of the provisions of the Constitution will
be dealt by a Constitution bench.

PAGE | XX
-ISSUES RAISED-
ISSUE I
WHETHER THE PETITIONS FILED ARE MAINTAINABLE IN THE SUPREME
COURT OF INDICA?
ISSUE II
WHETHER THE COVERT OPERATION FORMULATED BY THE STATE OF A&P
WAS LEGAL AND VALID?
ISSUE III
WHETHER THE DNA DATABSE IS VIOLATIVE OF CONSTITUTIONAL
PROVISIONS?
ISSUE IV
WHETHER THE DNA SAMPLES BE USED FOR PATERNITY TEST?
MEMORIAL for RESPONDENT ISSUES RAISED

PAGE | XXI
-SUMMARY OF ARGUMENTS-
COURT OF INDICA.
It is humbly submitted before the Hon’ble court that petitions are not maintainable under
Article 32 of the constitution of Indica.
Firstly, The Writ Petition (Crl.) No. 980 of 2013 filed under Article 32 of the Constitution of
Indica is not maintainable, as the undercover operation is legal, constitutional and permissible
by law & there has been no infringement of Fundamental Rights. Moreover, the essentials of
Habeas Corpus have not been met. Lastly, local Remedies have not been exhausted which
indicates that the petitioner may approach the High Court under Art.226 and the rule of
exhaustion of local remedies is not a violation of Art.32.
Secondly, the PIL filed is nor maintainable, as there has been no violation of fundamental rights
guaranteed under Part III of the Constitution. Moreover, the petitioners do not have the
requisite locus standi to file the suit before the Hon’ble Court.
Thirdly, the petition filed by Master Z is not maintainable, as there is no infringement of
fundamental rights concerned, and the petitioners have no locus standi.
II. THE COVERT OPERATION FORMULATED BY THE STATE OF A&P WAS
LEGAL AND VALID.
It is humbly submitted before the Hon’ble Bench of Supreme Court of Indica that the cover
operation carried out by the police authorities was legal and valid. The argument is three-fold.
Firstly, the DNA evidence collected under covert operation is admissible.
Secondly, the Search and Seizure conducted in pursuance of Covert policy is admissible and
valid.
MEMORIAL for RESPONDENT SUMMARY OF ARGUMENTS

PAGE | XXII
Thirdly, the Tape recordings and Confessions of agents involved in illegal drug trafficking did
not violated the right to refrain from making a statement.
III. THE DNA DATABASE IS VIOLATIVE OF CONSTITUTIONAL PROVISIONS.
It is humbly submitted before the Hon’ble Bench of Supreme Court of Indica that the present
Public Interest Litigation filed by 'Technology for All &Justice - (TAJ)' be dismissed. The
argument is twofold.
Firstly, there are possibilities of ethical-legal problem in retention and preservation of the DNA
samples.
Secondly, the issue of guidelines by court will be intrusion in the legislative domain.
IV. THE DNA SAMPLES SHOULD BE USED FOR PATERNITY TEST.
It is humbly submitted before the Hon’ble Bench of Supreme Court of Indica that the petition
filed by Master Z be dismissed. Also, the application W.P. (Crl.) No. 980 of 2013 moved by
Mr. 'X' claiming to be the biological father of 'Master Z' be considered. The argument is
threefold.
Firstly, power of the court to direct DNA test for parentage.
Secondly, there is no violation of the right to privacy.
Thirdly, the best interest of the child lies in the paternity test.
MEMORIAL for RESPONDENT SUMMARY OF ARGUMENTS

PAGE | 1
-ARGUMENTS ADVANCED-
COURT OF INDICA.
¶ 1. It is humbly submitted before the Hon’ble court that the petitions are not maintainable
under Article 32 of the Constitution of Indica. The argument is threefold. [A] that the Writ
Petition (Crl.) No. 980 of 2013 filed under Art. 32 of the Constitution of Indica is not
maintainable [B] that the PIL filed is maintainable [C] that the Writ Petition filed by Master Z
is not maintainable.
[A] THAT THE WRIT PETITION (CRL.) NO. 980 OF 2013 FILED UNDER ARTICLE
32 OF THE CONSTITUTION OF INDICA IS NOT MAINTAINABLE.
¶ 2. It is submitted that present petition is not maintainable under Article 32 of the
Constitution of Indica. The argument is threefold: (i) that the undercover operation is
constitutional and there has been no infringement of fundamental rights (ii) that the essentials
of Habeas Corpus have not been met (iii) that the local remedies have not been exhausted.
i) That the Undercover operation is constitutional & there has been no infringement
of fundamental rights.
¶ 3. It is submitted that fundamental rights are enforceable against State.1 Article 32 confers
one of “the highly cherished rights”.2 The purpose for which Article 32 can be invoked is to
enforce Fundamental Rights. Violation of fundamental rights is sine qua non of the exercise of
1
Shamdasni v Central Bank of India, AIR 1952 SC 59.
2
The Fertilizer Corporation Kamgar Union v. U.O.I, AIR 1981 SC 344.
MEMORIAL for RESPONDENT ARGUMENTS ADVANCED

PAGE | 2
the right conferred by Article 32.3
¶ 4. Thus, there has been no evident violation of the fundamental rights as the entire Covert
Operation was constitutional and the DNA Samples collected in pursuance of the ‘Covert
Operation Policy’ though collected without the consent of the individuals4 are not detrimental
to their right to privacy which is protected as an intrinsic part of the right to life and personal
liberty under Art. 215 due to compelling public interest and henceforth the petition is not
maintainable under Article 32.
ii) That the Essentials of Habeas Corpus have not been met.
¶ 5. The writ of Habeas Corpus is used to secure release of a person who has been detained
unlawfully or without legal justification.6 Unlawful detention has been defined in the case State
of Bihar v. KP Verma7 as: Firstly, when detention is not in accordance to law; Secondly, The
procedure established by law has not been strictly followed in detaining the person; Thirdly,
there is no valid law to authorise the detention, or the law is invalid because it infringes the
Fundamental right, or the legislature enacting it exceed its limits.
¶ 6. It is submitted that in the instant case the Covert Operation on the basis of which arrests
have been made is constitutional. Secondly, the procedure established by law has been followed
while arresting Mr. X Lastly, the DNA sample though collected without his consent is
admissible due to compelling public interest. Thus, in the instant case, there is no unlawful
detention and the essentials of the writ of Habeas Corpus have not been met.
3
Federation Bar Association in Karnataka v. U.O.I, AIR 2000 SC 2544; Andhra Industrial Works v. Chief
Controller of Imports, AIR 1974 SC 1539; The Fertilizer Corporation Kamgar Union, supra note 2 ; Bhushan
Power and Steel Ltd. v. Rajesh Verma, (2014) 5 SCC 551
4
Fact sheet ¶7.
5
Justice K S Puttaswamy (Retd.) v. U.O.I, (2017) 10 SCC 1.
6
M.P JAIN, INDIAN CONSTITUTIONAL LAW 463 (LexisNexis, 8th ed. 2018).
7
State of Bihar v. KP Verma, AIR 1965 SC 575.

PAGE | 3
iii) That the Local remedies have not been exhausted.
a) That the petitioner may approach the High Court under Art. 226.
¶ 7. It is an established fact that the powers of High Court under Art. 226 are wider than the
powers of this Hon’ble Court under Art.32 of the Constitution.8
¶ 8. Further, the reliefs prayed for can be granted by the High Court. Power under Article
226 can be exercised by the High Court to reach injustice wherever it is found9 and is not
confined to issue writs only but its broader than that for a High Court can also issue any
directions to enforce any of the Fundamental Rights or “for any other purpose”10 this has been
held in a number of cases.11
¶ 9. In light of Article 226(1)(2) the High Court is entitled to issue a writ; Firstly, to a person
or authority having its location or residence within the Court’s territorial jurisdiction; Secondly,
If the cause of action either wholly or partly within the High Court’s territorial jurisdiction.12
¶ 10. Thus, it is submitted that Mr. X was a resident of the Sate of A& P13 whereas his arrest
was also carried out in pursuance of the DNA sample collected by the State of A& P during
the covert operation policy14 thus in the instant case High Court has the required jurisdiction to
provide appropriate relief.
b) That the rule of exhaustion of local remedies is not a violation of Art.32.
¶ 11. It is submitted that Art.32 is not an absolute right and is subject to the self-imposed
restraints evolved by the judiciary. Admittedly, cases such as Romesh Thapar15 , K.K.
8
Bandhua Mukti Morcha v. U.O.I, AIR 1984 SC.
9
Secretary ONGC Limited v VU Warrier, (2005) 5 SCC 245.
10
INDIA Const. art. 226(1).
11
Swayambar Prasad v State of Rajasthan, AIR 1972 Raj. 69.; Gujarat State Financial Corporation v. Lotus Hotel,
AIR 1983 SC 848; Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645.
12
Kusum Ingots & Alloys Limited v. UOI, (2004) 6 SCC 254.
13
Fact sheet ¶9.
14
Fact sheet ¶14.
15
RomeshThappar v. State of Madras AIR 1950 SC 124.

PAGE | 4
Kochuni16, Kharak Singh17, Coffee Board18 did not require the exhaustion of alternative
remedies before approaching the Apex Court but a major shift in legal jurisprudence took place
in the year 1987 when a when the Apex court ruled in Kanubhai Brahmbhatt v State of
Gujarat19 that a petitioner complaining of the infraction of his fundamental rights should
approach High Court first rather than the Supreme Court in the first instance.
¶ 12. Recently the Apex Court in Lokesh Katara v. High Court of Gujarat20 refused to
entertain a writ petition filed under Article 32 stating that petitioners in the case had a remedy
available of moving to the High Court under Article 226.
¶ 13. Therefore, it is humbly submitted that the availability of an equal and efficacious,
alternate remedy and its non-exhaustion renders the writ petition not maintainable in the
Hon’ble Supreme Court of Indica.
[B] THAT THE PIL FILED IS NOT MAINTAINABLE.
¶ 14. It is submitted that the present petition is not maintainable under Article 32 of the
Constitution since; Firstly, there has been no violation of the fundamental rights of the
petitioners. Secondly, the petitioners do not have the requisite Locus Standi to file the suit
before the Hon’ble Court.
i) That there has been no violation of the fundamental rights.
¶ 15. It is submitted that Article 32 is one of “the most cherished rights”, though this right is
absolute and cannot be impaired on any ground.21 The Apex Court has again reiterated that
infringement of fundamental right is sine qua non of the exercise of the right conferred by
16
KK Kochunni v. State of Madras, AIR. 1959 SC 725.
17
Kharak Singh v. State of U.P., AIR 1963 SC 1295.
18
Coffee Board v. Jt. Commercial Tax Officer, AIR. 1971 SC 870.
19
Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159.
20
Lokesh Katara v. H.C of Gujarat, (2017) 2 SCC 427.
21
Prem Chand Garg v. Excise Commissioner, AIR 996 SC 1963.

PAGE | 5
Article 32 in the cases Federation Bar Association in Karnataka v. UOI22, Andhra Industrial
Works v Chief Controller of Imports23, The Fertilizer Corporation Case24
¶ 16. Moreover, it is pertinent to note that a PIL writ petition can be filed in the Supreme
Court under Article 32 only if a question of Fundamental Rights is involved.25
¶ 17. Thus, it is humbly submitted before the Hon'ble Court that in the instant case the PIL
has been instituted for the sole purpose of framing of a series of guidelines and necessary
infrastructure for maintaining a DNA database, there has been no glaring violation of the
fundamental rights and henceforth the petition is not maintainable under Article 32.
ii) That the requisite locus standi is not present.
¶ 18. The general principle regarding Locus Standi is that a person whose Fundamental Right
has been infringed has locus standi to move to the Supreme Court under Article 32 for the
enforcement of his right.26 It is pertinent to note in regards to Public Interest Litigation though
it discards the traditional concept of locus standi still only the person whose legal rights are
being violated can approach the Court for redress.27
¶ 19. Clarity was given to the concept of Locus Standi by the court as early as 1982 in the
case SP Gupta v UOI28 where Bhagwati J stated that “Any member of the public having
sufficient interest can maintain action for judicial redress for public injury arising from breach
of public duty or from violation of some provision of the Constitution or the law and seek
enforcement.”
¶ 20. The need for public injury as an essential for PIL was again reiterated in Janata Dal v
22
Federation Bar Association in Karnataka, supra note 3.
23
Andhra Industrial Works, supra note 3.
24
The Fertilizer Corporation Kamgar Union, supra note 2.
25
M.P JAIN, INDIAN CONSTITUTIONAL LAW 1429 (LexisNexis, 8th ed. 2018); BALCO Employees Union (Regd.)
v. U.O.I, (2002) 2 SCC 333.
26
27
28
S.P. Gupta v. U.O.I, AIR 1982 SC 149.

PAGE | 6
HS Chowdhary29.
¶ 21. Moreover, the apex court has cautioned that PIL should not be used as a means of
encroaching into the sphere reserved by the Constitution to the executive and the legislature.30
Stating courts can neither formulate policy, nor can they do anything that would amount to
creating legislation, rules and regulations.
¶ 22. Therefore, it is submitted that in the light of the cases cited above the requirement of
Locus Standi has not been met as there has been, no infringement of fundamental rights nor
any public injury has been caused thus though the Apex court has “lowered locus standi
thresholds”31 still the bare requisites of locus standi have not been met and the petition is not
maintainable.32
[C] THAT THE WRIT PETITION FILED BY MASTER Z IS NOT MAINTAINABLE.
¶ 23. It is humbly submitted before the Hon'ble court that the petition filed Master Z seeking a direction
as not to release or use/ misuse of DNA samples collected by law enforcement agency for the paternity
test is not maintainable since the use of the DNA sample for determining parentage is not detrimental to
right to privacy.
i) That no infringement of fundamental rights concerned.
¶ 24. It is humbly submitted before the Hon’ble Court that in the instant case the release of
DNA profile of Master Z for determining parentage would not be detrimental to his right to
privacy which is protected as an intrinsic part of the right to life and personal liberty under
Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.33 As doing
so would be justified in accordance to the “best interest of the child principle”.
29
Janata Dal v. HS Chowdhary, AIR 1993 SC 892.
30
State of Himachal Pradesh v. Student's Parent, Medical College, Shimla, AIR 1985 SC 910.
31
Ranji Thomas v. U.O.I, J.T., 1998 (2) SCALE 744; Chairman & MD, BPL Ltd. v. SP Gururaja, (2003) 8 SCC
567.
32
Suresh Chand Gautam v. State of UP, (2016) 11 SCC 113.
33
Justice K S Puttaswamy, supra note 5.

PAGE | 7
ii) That the petitioner has no locus standi.
¶ 25. The Apex Court has time and again reiterated that infringement of fundamental right is
sine qua non of the exercise of the right conferred by Article 32.34 It is thus submitted that the
petitioners don’t have the requisite Locus Standi to file the writ petition before the Hon’ble
Court as there is infringement of fundamental rights.
II. THAT THE COVERT OPERATION FORMULATED BY THE STATE OF A&P
WAS LEGAL AND VALID.
¶ 26. It is humbly submitted before the Hon’ble Bench of Supreme Court of Indica that the
covert operation carried out by the police authorities was legal and valid. The argument is three-
fold. [A] that the DNA evidence collected under covert operation is admissible without the
consent of the accused [B] that the Search and Seizure conducted in pursuance of Covert policy
is admissible and valid [C] that the Tape recordings and Confessions of agents involved in
illegal drug trafficking did not violate the right to refrain from making a statement.
[A] DNA EVIDENCE COLLECTED UNDER COVERT OPERATION IS ADMISSIBLE
i) Significance of DNA Evidence in Crime Resolution
¶ 27. In developing countries DNA evidence is now a predominant, forensic technique for
identifying criminals when biological tissues are left at the scene of the crime. DNA profiling
on samples such as saliva, skin, blood, hair or even semen etc. helps not only to convict but
also serves to exonerate.35 The appropriate time has come for our courts also to show their
willingness to open judicial door to the realms of modern biology.36 It is brought to the notice
of this Hon’ble court that DNA Profiling as an instrument of Crime Resolution has proved its
34
Federation Bar Association in Karnataka, supra note 3; Andhra Industrial Works, supra note 3; The Fertilizer
Corporation Kamgar Union, supra note 2; Bhushan Power and Steel Ltd., supra note 3.
35
2006 CrLJ, Journal S. 102.
36
2006 CrLJ, Journal S. 102.

PAGE | 8
merits in a number of cases namely Rajiv Gandhi case37, Tandoor case38, Santosh Kumar
case39, Surendra Koli case40.
¶ 28. It is also pertinent to note that the Apex Court held that evidence procured through
sophisticated machines must be given due weightage and there can be no justification to reject
the opinion of the expert who has examined the case microscopically.41 Thus it is humbly
submitted that the significance and admissibility of DNA as an evidence cannot be rebutted.
ii) Apparent Conflict between Right to Privacy and Public Interest
¶ 29. It is submitted that in the instant case the collection of Mr. X’s DNA sample without
his consent and his subsequent arrest based on the same is not detrimental to his right to privacy
which is protected as an intrinsic part of the right to life and personal liberty under Article 21..42
¶ 30. The Apex Court in the case Govind Singh v. State of Madhya Pradesh43, held that right
to privacy is itself a fundamental right and that this right must be subjected to restriction on the
basis of compelling public interest.44 The same stance was reiterated in the Rajagopal’s Case45
where it was observed that right to privacy isn’t absolute46 and if there were a conflict between
fundamental rights of two parties, that right which advances public morality would prevail.
¶ 31. It is well settled that right to life guaranteed under Article 21 doesn’t imply mere animal
existence, it includes right to a healthy life.47 Thus, in the instant case an apparent conflict can
be seen between Mr. X’s Right to privacy and the powers of State government to carry out the
Covert Operation to break into the syndicate of illegal drugs trafficking for upholding ‘ the
37
State through Superintendent of Police, CBI/SIT v. Nalini and others, (1999) 5 SCC 253.
38
Sushil Sharma v. The State (Delhi Administration), 1996 CrLJ 3944.
39
Santosh Kumar Singh v. State, (2010) 7 SCC 263.
40
Surendra Koli v. State of U.P., (2011) 4 SCC 80.
41
Ramanathan v. State of Tamil Nadu, AIR 1978 SC 1204.
42
43
Govind v. State of Madhya Pradesh, AIR 1975 SC 1378.
44
Malak Singh v. State of Punjab, AIR 1981 SC 760; State of Maharashtra & Anr. v. Madhukar Narayan Mardikar,
AIR 1991 SC 207; District Registrar & Collector, Hyderabad & Anr. v. Canara Bank & Ors, (2005) 1 SCC 496.
45
R. Rajgopal v. U.O.I, AIR 1995 SC 295.
46
District Registrar & Collector, Hyderabad & Anr. v. Canara Bank & Ors, (2005) 1 SCC 496.
47
M Vijaya v. Chairman and Managing Director, Singareni Collection, AIR 2001 AP 502.

PAGE | 9
right to a healthy life’ of the residents of the State of A&P.
¶ 32. A parallelism can be drawn with the M. Vijaya Case48 where the Apex Court while
dealing with the concerns over the Right to Privacy of patients suffering from HIV upheld the
interest of general public in view of Article 47 of the Constitution of Indica to take all steps for
the improvement of public health. Thus, the State of A& P had to strike balance between the
mule’s right to privacy and interest and the rights of the residents of State of A&P.49
¶ 33. Moreover, as the Right to Privacy under Article 21 is not absolute and may be lawfully
restricted for the prevention of crime, disorder or protection of health or protection of rights
and freedom of others.50 These findings can also be seen in the A.P. Shah Committee Report51
that specifies national security, public order and rights of other individuals as exceptions to the
right to privacy. Thus, whenever there is a conflict between the fundamental rights of the two
parties, the court has to strike balance between the competing rights.52
¶ 34. In a recent judgement53, Justice Chelameshwar observed that there should be a
requirement for 'compelling state interest' for those privacy claims which deserve the 'strictest
scrutiny'54; Justice Nariman held that statutory restrictions on privacy would prevail if it is
found that the 'social or public interest and the reasonableness of the restrictions outweighs the
particular aspect of privacy claimed55; Justice Sapre says that the right to privacy is subject to
reasonable restrictions "in view of the social, moral and compelling public interest that the state
is entitled to impose by law."56 Justice Kaul held that right to privacy would be subject to
reasonable restrictions on the grounds of national security, public interest and the grounds
48
Ibid.
49
Subramanian Swamy v. Union of India, (2016) 7 SCC 221.
50
X v. Z, AIR 2002 Del. 217.
51
A.P. SHAH, REPORT OF THE GROUP OF EXPERTS ON PRIVACY 68 (2012).
52
Gautam Kundu v. State of West Bengal, AIR 1993 SC 2295.
53
54
Ibid.
55
Ibid.
56
Ibid.

PAGE | 10
enumerated in the provisos to Article 19 of the Constitution.57 Nobody has the fundamental
right to carry on business in crime under Art. 19(1)(g).58 In the instant case, the rate of drug
abuse is alarming with reportedly increase in the involvement of youth, also its proceeds were
believed to be used in insurgency/militancy which poses a serious threat to national security
revoking compelling state interest. Further, the social or public interest also outweighed by the
actions of police authorities. Thus, DNA samples collected from suspects without their consent
was a reasonable restriction on their right to privacy.
¶ 35. It is submitted that Indica’s stance on conflicting fundamental rights and public interests
stand in concurrence to Foreign instruments and Jurisprudence that impose similar restrictions
on an individual’s right to privacy on the basis of national security, prevention of crime and
protection of health and rights. 59 In a case60, where the DNA samples of the suspected
individuals who had not been convicted of a criminal offence were retained, it was held that
the adverse consequences of retaining the DNA sample were outweighed by the public benefits
of retaining them for preventing crime. Individual interests cannot override public interest.61
¶ 36. Further, the maxim “salus populi est suprema lex” which means public welfare is the
highest law still holds good in the light of Bentham’s theory of pleasure and pain. Moreover,
the “reasonable expectation of privacy” test62 has not been fulfilled. Therefore, it is humbly
submitted that the collection of DNA sample without the consent of Mr. X by the state was in
order to promote a larger public interest which stands true on the restrictions imposed upon
Right to Privacy of an Individual that are namely prevention of crime and disorder and
promotion of public health. Thus, it does not contravene the rights imbibed under Article 21 of
57
Ibid.
58
Justice K S Puttaswamy (Retd.) v. U.O.I, Ibid; Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC
574.
59
Convention for the Protection of Human Rights and Fundamental freedoms, art. 8, Nov. 4, 1950, Europ. T.S.
No.5; 213 U.N.T.S 22.
60
R v. Chief Constable of South Yorkshire, (2003) All ER 148.
61
Zunga v. Pierce 714 F2d 632 (1983); Laznovsky v Lazonovsky 74.5 A 2d 1054(Md Ct App 2000).
62
Katz v. United States 389 U.S. 347 (1967).

PAGE | 11
the Constitution of Indica.
iii) Collection and use of DNA sample not violative of Article 20(3):
¶ 37. It is submitted that the collection of DNA sample and its use as an evidence does not
amount to self-incrimination under the ambit of Article 20(3) of the Constitution of Indica.
¶ 38. “To be a witness”63 in the larger sense of the expression does not include giving of
thumb impression or impression of palm or foot or fingers or specimen writing or exposing a
part of a body by an accused person for the purpose of identification.64 Therefore, using the
rationale laid down, DNA fingerprinting, foot printing or specimen of handwriting etc. of the
accused persons are not covered by art 20(3).
¶ 39. A Constitution Bench of the Hon’ble Supreme Court, in Selvi v. State of Karnataka65,
while testing the validity of DNA tests on the anvil of Article 20(3) of the Constitution of India,
observed that “The matching of DNA samples is emerging as a vital tool for linking suspects
to specific criminal acts. It may also be recalled that as per the majority decision in Kathi Kalu
Oghad, the use of material samples such as fingerprints for the purpose of comparison and
identification does not amount to a testimonial act for the purpose of Article 20(3). Hence, the
taking and retention of DNA samples which are in the nature of physical evidence does not
face constitutional hurdles in the Indian context.”
¶ 40. A similar stance has been followed by various High Courts in Indica and the right of
police to draw the samples from an accused person for the purpose of DNA profiling is accepted
by law.66 There is no question of any infringement of the right of privacy or right against self-
incrimination. This stance has not only been reiterated in a number of Indian cases67, but
63
INDIA Const. Art. 20(3).
64
State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808
65
Selvi v. State of Karnataka (2010) 7 SCC 263.
66
P.V. Valsan s/o Kannan Nambiar v. Station House Officer (Crl. Misc. No.1629/2008); D.J Vaghela v. Kantibai
Jethabai 1985 CrLJ 974.
67
Ananth Kumar v. ST. of A.P.1997, CrLJ. 1797, Subhaya Gounder v. Bhoopala, AIR 1959 Mad 396.

PAGE | 12
international stance is also the same as, the European Court of Human Rights observed68 that
right not to incriminate oneself is concerned with the will of an accused to remain silent. Use
of compulsory powers in criminal procedure to obtain materials including blood samples for
DNA testing from the accused, which has an existence independent of the will of the suspect,
is not included in the right against self- incrimination. Therefore, considering the Indian and
Foreign Jurisprudence on the matter at hand it is humbly submitted before the Apex Court that
use of DNA as an evidence is not violative of Article 20(3).
[B] THAT THE SEARCH AND SEIZURE CONDUCTED IN PURSUANCE OF
COVERT POLICY IS ADMISSIBLE AND VALID.
i) The Search and Seizure is in accordance with Code of Criminal Procedure (CrPC)
¶ 41. It is submitted that even without registering a case it is open to the police officer to
collect information containing details about occurrence so that he can consider whether
cognizable offence has been committed warranting investigation thereto.69 The receipt and the
recording of First Information Report is not a condition precedent for setting in motion of a
criminal investigation.70 Although, many unknown FIR were registered by the police during
the two years of undercover operation as per Sec. 154 CrPC.
¶ 42. According to S. 100 and 165 CrPC, in the instant case police authorities started the
search and seizure through undercover operation on reasonable grounds with belief that it was
necessary for the purpose of investigation and collection of evidences. Failure to call witnesses
to search is not serious omission,71 and failure to comply with strict provisions of S. 100 and
165 is mere irregularity.72 Therefore, the undercover operation against the menace of illegal
68
Saunders v. United Kingdom, (1997) 23 ECHR 313.
69
Tapinder Singh v. State of Punjab, A.I.R 1970 SC 1566; Balmiki Singh v. State of Bihar, 2012 CrLJ 61; Code
of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974, S. 156.
70
Anjan Das Gupta v. State of West Bengal, (2007) 11 SCC 222; Apren Joseph v. The State of Kerala, (1973) 3
SCC 114.
71
Prashottam Dass v. State, 1975 CrLJ 309, 312.
72
Dilip & Anr v. State Of M.P, (2001) 9 SCC 452.

PAGE | 13
drugs trafficking was valid.
¶ 43. However, without prejudice to the above, it is submitted that even if the evidence
obtained by enforcement agency in the instant case were obtained under illegal search, they are
completely excluded and the evidence has to be accepted.73 If the evidence of the investigating
officer who recovered the material objects is convincing, the evidence as to recovery need not
be rejected on the ground that seizure witnesses do not support the prosecution version”.74
¶ 44. Moreover, constitutional provisions should be interpreted in order to suppress the
mischief and advance the object of the Act,75 as the Act was meant for the public good, and the
provisions thereof must receive fair and liberal construction.76
ii) Search and Seizure complies with the provisions of NDPS Act
¶ 45. It was necessary for the police authorities to curb this rising rate of drug abuse77 as
lucrative trade in narcotic drugs, if allowed to flourish would result in the whole society being
addicted to dangerous drugs, which is harmful.78 Assets derived from drugs trafficking are
liable to forfeiture.79 Both the Central Government and State Governments are empowered to
appoint officers for the purposes of the Act as they think fir for the purposes of this act.80
Offences under the Act are cognizable and non-bailable.81
¶ 46. If an officer of police empowered by the State Government has reason to believe from
personal knowledge that any offence is committed under this act and a search warrant cannot
be obtained without affording opportunity for the concealment of evidence or facility for the
73
M.P. v. Paltan Mallah, (2005) 3 SCC 169; State of Maharahtra v. Natwarlal Damodardas Soni, AIR 1980 SC
593.
74
Modan Singh v. State of Rajasthan, (1978) 4 SCC 435; Bai Radha v. State of Gujrat, AIR 1970 SC 1396.
75
State of Tamil Nadu v. Abu Kbur Bi, AIR 1984 SC 326.
76
Registrar of Firm v. Secured Investment Co., AIR 1988 SC 492: AIR 1988 SC 1626; Ganu Ram v. Rikhi Ram
Kaundal, AIR 1984 SC 1513; Harihar Polyfibres v. Regional Director, E.S.I. Corporation, AIR 1984 SC 1680;
Reynold Rajamani v. U.O.I, AIR 1982 SC 1261.
77
Fact Sheet, ¶5.
78
Mohd. Sadiq v. State 1990 (1) Crimes 644.
79
Narcotic Drugs and Psychotrophic Substances Act, 1985, No. 61, Acts of Parliament, 1985, Chap. V-A.
80
Narcotic Drugs and Psychotrophic Substances Act, 1985, No. 61, Acts of Parliament, 1985, S. 4,5,7.
81
Narcotic Drugs and Psychotrophic Substances Act, 1985, No. 61, Acts of Parliament, 1985, S. 37.

PAGE | 14
escape of an offender, he can pursue search and seizure operation.82 Moreover, if he carries out
a search without strict compliance with the provisions of CrPC, namely S.s
100 and 165 CrPC, then such search would not per se be illegal and would not vitiate the trial.83
The provisions of S. 42(2) should not be interpreted so literally that so as to render its
compliance impossible.84
¶ 47. Moreover, an officer authorized under S. 42 may proceed to search the person85 instead
of taking such person to the nearest Gazetted Officer or Magistrate, if he has reason to believe
that it is not possible to take the person to be searched to the nearest Gazetted Officer or
Magistrate without the possibility of the person to be searched parting with possession of any
narcotic drug or psychotropic substance, or controlled substance or article or document.86
¶ 48. The searches under the NDPS Act by virtue of S. 51 of the Act have to be carried out
under the provisions of CrPC, particularly S. 100 and 165. The irregularities in search, if any,
committed would not vitiate the trial.87 Even if there is any sort of procedural illegality in
conducting the search and seizure, the evidence collected thereby will not become inadmissible
and the circumstances will be considered by the court. 88
¶ 49. Under S. 67 of this Act, any officer empowered by S. 42 call for information from any
person for the purpose of satisfying himself and examine any person acquainted with the facts
and circumstances of the case. It does not mandate that the person making a statement under
S. 67 should be informed of the consequences of making statement. 89 Statement recorded
cannot be rejected merely for the reason that statutory warning under S. 164 of the Code of
Criminal Procedure, 1973 was not given.90 Moreover, relevant evidence gathered during illegal
82
Narcotic Drugs and Psychotrophic Substances Act 1985, No. 61, Acts of Parliament, 1985, S. 42(1).
83
State of Punjab v. Balbir Singh, AIR 1994 SC 1872.
84
Sajan Abraham v. State of Kerala, (2002) 6 SCC 692.
85
Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974, S. 100.
86
Narcotic Drugs and Psychotrophic Substances Act, 1985, No. 61, Acts of Parliament, 1985, S. 50(5).
87
State of Punjab v. Balbir Singh, AIR 1994 SC 1872; Sajan Abraham v. State of Kerala, (2002) 6 SCC 692.
88
Khet Singh v. U.O.I, (2002) 4 SCC 380.
89
Divakaran v. State of Kerala 1998 (2) KLT 53.
90
Stanlev Robert v. Assistant Collector (Customs) 2000 Drugs cases 485.

PAGE | 15
search can be used as evidence.91 Illegality of search does not vitiate the evidence collected
during such illegal search.92
¶ 50. Further, conviction could be based on solitary testimony of investigating officer or
police officer.93 Where no independent witnesses were available and other witnesses had turned
hostile, the evidence of the police witnesses, being reliable could form the basis of conviction.94
[C] TAPE RECORDINGS AND CONFESSIONS OF MULES INVOLVED IN ILLICIT
DRUG TRAFFICKING DID NOT VIOLATE THE RIGHT TO REFRAIN FROM
MAKING A STATEMENT.
i) There is no infraction of Fundamental Rights
¶ 51. It is submitted that Article 19(1)(a) which guarantees freedom of speech also includes
the right to silence.95 But no freedom can be absolute or completely unrestricted.96 Since,
Article 19(2) is an exception to Article 19(1), the set of grounds included in it are sovereignty
and integrity of state, the security of the state, incitement to offence etc.97 An aggravated form
of disturbance of peace which threatens the foundations of, or threatens to overthrow, the state
is covered by the term ‘security of the state’.98 Therefore, insurgency/militancy in the State of
A.P. poses a threat to ‘national security’ and the very idea of Indica99 which is also closely
linked with illegal drugs trafficking as the proceeds from the later are used to finance the
former.100
¶ 52. Also, Article 19(1)(d) which violates Right to movement is not violated. Hence, in the
91
New Central Jute Mills Co. Ltd. v. TN Kaul, AIR 1976 Cal 178.
92
Radhakishan v. State of UP, AIR 1963 SC 822; State of Himachal Pradesh v. Pirthi Chand, AIR 1996 SC 977;
State of Punjab v. Jasbir Singh and others (1996) 1 SCC 288.
93
Girja Prasad v. State of M.P., (2007) 7 SCC 625; Rameshwar v. State of Madhya Pradesh and another 1994
Drug Cases 129.
94
Khalek Sheikh v. West Bengal, (2006) 7 SCC 439.
95
Bijoe Emmanuel v. State of Kerala, AIR, 1987 SC 748.
96
Ramlila Maidan Incident v. Home Secretary, U.O.I (2012) 5 SCC 1.
97
98
Santokh Singh v. Delhi Administration, AIR 1972 SC 1091.
99
Fact Sheet ¶8
100
Fact Sheet ¶8

PAGE | 16
instant case, surveillance of police was valid, as police surveillance was restricted to the person
only against whom reasonable material exist to induce the opinion that they show a
determination to lead a life of crime which involve public peace and security.101
¶ 53. Moreover, no person accused of any offence shall be compelled to be a witness against
himself.102 This provision has three essentials to be fulfilled,103 firstly, it is a right available to
a person ‘accused of an offence. Secondly, it is a protection against ‘compulsion’ to be a
witness. Thirdly, it is a protection against such compulsion resulting in his giving evidence
‘against himself’.
¶ 54. For protection under Article 20(3), it must appear that a formal accusation has been
made against the party pleading the same and that it related to the commission of an offence
which in the normal course may result in prosecution.104 A suspect cannot be an accused and
so Article 20(3) would not apply to him.105 A person cannot claim the privilege if at the time
he made the statement he was not an accused but became an accused thereafter.106 In the present
case, there was no formal accusation against suspects.
¶ 55. The compulsion in this sense is a physical objective act and not the state of mind of the
person making the statement, except where the mind has been so conditioned by some
extraneous process as to render the making of the statement involuntary and, therefore,
extorted. The mere fact that the suspect, when he made the statement in question was in police
custody would not imply that he was compelled to make the statement.107
¶ 56. Protection under Article 20(3) is only against the person being compelled to be a
101
Malak Singh, supra note 44.
102
INDIA Const. Art. 20(3).
103
104
Raja Narayan Lal Bansilal v. Maneck Firoz Mistry, AIR 1961 SC 29.
105
Raja Narayan Lal Bansilal v. Maneck Firoz Mistry, AIR 1961 SC 29; State of Bombay v. Kathi Kalu Oghad,
AIR 1961 SC 1808.
106
State of Bombay, supra note 64.
107
M.P JAIN, INDIAN CONSTITUTIONAL LAW 1147 (LexisNexis, 8th ed. 2018); State of Bombay v. Kathi Kalu
Oghad, AIR 1961 SC 1808.

PAGE | 17
witness against himself.108 It doesn’t mean that he need not give information of matters, which
don’t tend to incriminate him. Hence, statements made to the extent of information of the
syndicate activities to the undercover agents by the mules is not being compelled to be witness
against himself. If information is voluntarily parted with by an individual, no right to privacy
exists.109
ii) Admissibilty of Tape Recording and Confessional Statements
¶ 57. It is submitted regarding tape recording that a tape-recorded statement made by the
accused though made without the knowledge of the accused but without force or oppression is
admissible as evidence.110 It is accepted in several decisions that conversation or dialogue
recorded on a tape-recording machine is admissible evidence.111 It can be relied upon as
corroborative evidence.112
¶ 58. Regarding the Confessions, under S. 24 of Indian Evidence Act it must be voluntary113
and uninfluenced by an external factor to be admissible.114 The court should carefully examine
the confession and compare it with the rest of the evidence, in the light of the surrounding
circumstances and probabilities of the case.115
¶ 59. It is submitted before the Hon’ble Court that “Fact” as understood in the Evidence Act
includes physical as well as psychological fact or mental condition. Also, statement is
interchangeable with the word ‘information’.116 In case of more suspects, who have not been
formally charged with any offence or arrested under any S. of CrPC, their presence with the
108
Raman Lal Bhogi Lal Shah v. V.K. Guha, AIR 1973 SC 1196.
109
Katz, supra note 62.
110
Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147; R.M Malkani v. State of Maharashtra,
AIR 1973 SC 157; R. v. Leatham, (1861) 8 Cox.C.C.498.
111
Shri N. Sri Rama Reddy v. Shri V. V. Giri, AIR 1971 SC 1162; Yusufalli Esmail Nagree v. State of
Maharashtra, AIR 1968 SC 147; S. Pratap Singh v. The State of Punjab, AIR 1964 SC 72.
112
Mahabir Prasad v. Surinder Kaur, A.I.R 1982 SC 1043.
113
Lonimohon Das v. UT of Manipur, 1974 CrLJ 1186; Santosh Boro v. State of Meghalaya, (2008) 4 GLR 55.
114
Tilak v. State of M.P., 1978 CrLJ 276; State v. Gouranga Sahu, 1978 CrLJ 276.
115
Devendra Prasad Tiwari v. State of U.P, AIR 1978 SC 1544.
116
Sukhan v. Emperor, AIR 1929 Lah. 344.

PAGE | 18
police officer under some restraint amounts to custody.117 Even indirect control over the
movements of suspects by the police would amount to ‘police custody’.118
¶ 60. It is submitted that the S. 25 does not stand in the way of admitting the statement of an
accused to a police officer, if such statement does not amount to confession.119 However, it is
admissible as per S. 27 of Indian Evidence Act when the truth of the confession is guaranteed
by the discovery of facts in consequence of the information given,120 being an exception to S.
25 and 26121. The information might be confessional but, if it results discovery of a fact, it
becomes a reliable information.122 Accused person under S. 27 does not mean formal
accusation at the time of making the statement.123
¶ 61. It is a settled law that, unless compulsion has been used statements admissible under S.
27 of the Evidence Act. 124 The information was given voluntarily by the mules which led to
discovery of many evidences, codes used by them in the syndicate, information about
consignments of illegal drugs is also a discovery of fact125 and should be held admissible.126
¶ 62. Moreover, cautioning of a prisoner in custody by the police before accused makes any
statement under S. 27 that it can be used against him was not mandatory and did not have force
of law, as the court still has the discretion to admit the evidence.127
¶ 63. A confessional statement made under S. 27, also comes within the meaning of S. 30
and may be taken into consideration against the co-accused.128 Mr. X arrest was based on the
117
Allah Ditta v. The Crown, AIR 1937 Lah. 620; In re Man Singh, AIR 1959 MP 267.
118
Paramhansa v. State, AIR Ori 144.
119
Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119.
120
State of Rajasthan v. Bhup Singh, (1997) 10 SCC 675; Bulaqi v. The Crown, ILR (1928) 9 Lah 671, 675;
121
Ramakrishna v. State of Bombay, AIR 1955 SC 104.
122
State of Karnataka v David Razario, AIR 2002 SC 3272; State of Maharashtra v. Damu Gapinath Shinde, AIR
2000 SC 1691; Rajeslz Sharma v. State of Uttaranchal, 2005 CrLJ 2646, 2658.
123
State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125.
124
State of Bombay, supra note 64; Pandya v. U.O.I, AIR 1963 Punj 198; RK Dalmia v. Delhi Administration,
AIR 1962 SC 1821.
125
Ramachandran v. State of Kerala, 2009 CrLJ 168,169.
126
Shankar Narayan Bhadolkar v. State of Maharastra, (2005) 9 SCC 71; Yusuf Bachakhan v. State of Karnataka,
2008 CrLJ (NOC) 1292.
127
State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125; Kaju v. State, 1985 CrLJ 367.
128
Rami Reddy Pullunnagari, AIR 1941 Mad 238; Shankapa Rai v. Emperor, ILR Mad 127.

PAGE | 19
match of DNA and not specifically on the confessions made by mules129, however confessions
as the discovery of facts about him can be used130 and lend assurance to other materials as a
piece of corroborative evidence. 131 Also, if the court is satisfied with the evidence of the police
it can be immediately relied upon.132
III. THAT THE DNA DATABASE WILL BE VIOLATIVE OF THE
CONSTITUTIONAL PROVISIONS.
present Public Interest Litigation filed by 'Technology for All &Justice - (TAJ)' be dismissed.
The argument is twofold. [A] that there are possibilities of ethical-legal problem in retention
and preservation of the DNA samples. [B] that the issue of guidelines by court will be intrusion
in the legislative domain.
[A] THAT THERE ARE POSSIBILITIES OF ETHICAL-LEGAL PROBLEM IN
RETENTION AND PRESERVATION OF THE DNA SAMPLES.
¶ 65. Advances in DNA technology and the discovery of DNA polymorphisms have
facilitated the creation of DNA database of individuals for the purpose of criminal
investigation133. Many ethical and legal problems arise in the preparation of a DNA database,
and these problems are required to be properly addressed by the legal provisions on the
subject.134
129
Clarification, #1, pt. 6.
130
Shankapa Rai v. Emperor, ILR Mad 127.
131
Guddu Shukla v. State of Jharkhan, 2006 CrLJ 1883; Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184;
Husaini Umar v. Dalip Singhji, AIR 1970 SC 45.
132
Praveen Kumar v. State of Karnataka, (2003) 12 SCC 199.
133
SCHNEIDER PM. DATENBANKENMITGENETISCHEN MERKMALEN VON STRAFTAFTATERN, CRIMINAL DNA
DATABASES: DATA PROTECTION AND SECUTIRY (Datenschutz und Datensicherheit 1998; 22:330-3).
134
MARGARITA GUILLEN, MARIA VICTORIA LAREU, CARMELA PESTONI, ANTONIO SALAS AND ANGEL
CARRACEDO, ETHICAL-LEGAL PROBLEMS OF DNA DATABASES IN CRIMINAL INVESTIGATION, University of
Santiago de Compostela, Spain Journal of Medical Ethics; 26:226-271 (2000).

PAGE | 20
¶ 66. In Aycaguer v France135 the ECtHR held that the regulations on the storage of DNA
profiles did not provide individuals with sufficient protection, due to its duration and the fact
that the data could not be deleted. The Court concluded that the regulations failed to strike a
balance between competing public and private interests and held, unanimously, that there had
been a violation of Article 8 (right to respect for private life) of the European Convention on
Human Rights.
¶ 67. The retention of DNA and fingerprints from an individual on a database therefore
allows a form of biological tagging or ‘bio-surveillance’, which can be used to attempt to
establish where they have been.136 Concerns about ‘bio surveillance’ extend beyond the state
to anyone who can invade the system and obtain access to an individual’s DNA profile. This
might include organized criminal or terrorist groups, or anyone seeking to track down an
individual.
¶ 68. The introduction of the DNA technology has posed serious challenge to some legal and
fundamental rights of an individual such as “Right to privacy”, “Right against Self-
incrimination”. And this is the most important reason why courts sometimes are reluctant in
accepting the evidence based on DNA technology. Right to Privacy has been included under
Right to Life and Personal liberty or Article 21 of the Indian Constitution, and Article 20(3)
provides Right against Self- Incrimination which protects an accused person in criminal cases
from providing evidences against himself or evidence which can make him guilty.
¶ 69. The stringent standards as applied in the context of criminal law application are not so
stringently applied when dealing with the administrative or regulatory context. The degree of
privacy that an individual can reasonably expect may vary depending on the nature of the rights
and concerns involved.137
135
Application no. 8806/12.
136
R. WILLIAMS, P. JOHNSON, CIRCUITS OF SURVEILLANCE SURVEILL Soc, 2(1) (2004), pp. 1-14.
137
Rohit Shekhar v. Narayan Dutt Tiwari & Another, (2012) 12 SCC 554.

PAGE | 21
¶ 70. In South Africa, applications for compelling accused persons to give blood samples for
the purposes of DNA profiling in criminal jurisdiction have been opposed on the ground that
it will infringe their fundamental constitutional rights to dignity, to freedom and security of the
person; the right to bodily integrity; the right to privacy; and the right to be presumed innocent
and not to have to assist the prosecution in proving this case.138
¶ 71. In the case of S and Marper v. United Kingdom,139 the court upheld the right to privacy
and said that retention of DNA samples is a substantial threat to privacy. The issue in the case
according to the Court was whether the retention of the fingerprints and DNA data of the
applicants, as persons who had been suspected but not convicted of certain criminal offences,
was justified under Article 8 of the Convention. Thus, the hazards associated with such
technology on core civil liberties, fundamental values as well as rights are inconceivable.140
[B] THAT THE ISSUE OF GUIDELINES BY THE COURT WILL BE INTRUSION IN
THE LEGISLATIVE DOMAIN.
¶ 72. The doctrine of Separation of Powers has been included in our basic structure doctrine
as has been ruled and upheld by the Supreme Court in a number of cases141. Thus, it holds a
position of utmost importance.
¶ 73. In Kesavananda Bharati v. State of Kerala & Anr.142, the separation of powers doctrine
was included in the basic structure of the constitution and thus any amendments which gave
control of one organ over another would be unconstitutional, leaving the Executive, the
Legislature and the Judiciary completely independent.
¶ 74. In L. C. Golak Nath & Ors. v. State of Punjab & Anr.,143 the Supreme Court reinforced
138
The State v. Mogamat Phadiel Orrie & Anr, (SS32/2003) [2004] ZAWCHC 48.
139
S and Marper v. United Kingdom, (2008) ECHR 1581.
140
Fact Sheet ¶20.
141
Jawaya Kapur v. State of Punjab, AIR 1955 SC 549; Kartar Singh v. State of Punjab, AIR 1967 SC 1643; Indira
Nehru Gandhi v. Raj Narain and Anr., 1975 (Supp.) SCC 1.
142
Kesavananda Bharati v. State of Kerala & Anr (1973) 4 SCC 225.
143
L. C. Golak Nath & Ors. v. State of Punjab & Anr., AIR 1967 SC 1643.

PAGE | 22
its view with respect to separation of powers thus: “The constitution creates Legislature, the
Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to
exercise their respective powers without overstepping their limits. They should function within
the spheres allotted to them”
¶ 75. In State of West Bengal & Ors. v. Committee for protection of Democratic Rights, West
Bengal & Ors.,144 The Supreme Court observed that: “It is trite that in the constitutional scheme
adopted in India, besides supremacy of the constitution, the separation of powers between the
legislature, the executive and the judiciary constitute the basic features of the Constitution.”
¶ 76. Commenting and clarifying the concept of independence of judiciary, Sir A.K. Aiyar,
who was one of the framers of the Constitution, had observed that145 "The doctrine of
independence (of judiciary) is not to be raised to a level of a dogma so as to enable the judiciary
to function as a kind of super-legislature or super-executive. The judiciary is there to interpret
the constitution or to adjudicate upon the rights between the parties concerned."
¶ 77. In State of Himachal Pradesh v. A Parent of A Student Of Medical College, Shimla
and Ors.146, it was held that the court certainly cannot mandate the executive or any member
of the legislature to initiate legislation howsoever necessary or desirable the Court may
consider it to be. That is not a matter which is within the sphere of the functions and duties
allocated to the judiciary under the Constitution.
¶ 78. Guidelines for the use and application of DNA technology in crime resolution and
disaster victim identification147 would be stepping into the legislative domain. Further, various
draft Bills floated by several agencies and instrumentalities of the State for consideration before
the appropriate authority in Republic of Indica.148 Thus issuing guidelines would be inquiring
144
State of West Bengal & Ors. v. Committee for protection of Democratic Rights, West Bengal & Ors., AIR
2010 SC 1476.
145
GLANVILLE AUSTIN, THE INDIAN CONSTITUTION- CORNERSTONE OF A NATION 174 (1966).
146
State of Himachal Pradesh v. A Parent of A Student of Medical College, Shimla and Ors., 1985 SCR (3) 676.
147
Fact sheet ¶20.
148
Fact sheet ¶19.

PAGE | 23
into proceedings of Parliament and a violation of article 122 of the Indian Constitution.
¶ 79. Article 122149 provides Courts not to inquire into proceedings of Parliament. The
validity of any proceedings in Parliament shall not be called in question on the ground of any
alleged irregularity of procedure.150 Article 122(1) must be found to contemplate the twin tests
of legality and constitutionality for any proceedings within the Parliament only then can the
Court exercise its power of judicial review to enquire into the substantial irregularity
proceedings of legislature.151
¶ 80. It is always to be presumed that the Parliament would always perform its functions
and exercise its powers in a reasonable manner, not violating the law or the constitutional
provisions.152
¶ 81. When the competent authorities are thinking of bringing in a legislation, the Court need
not issue directions.153 In the instant case, various draft Bills floated by several agencies and
instrumentalities of the State for consideration before the appropriate authority in Republic of
Indica.154
¶ 82. Thus, in the present writ petition of Technology for All and Justice there has been no
contention with respect to the illegality of the proceedings in regard to the bill and mere
irregularity on the part of the parliament cannot be a ground for the court to intervene in the
legislative functions. Even if the Court were to address the correct authority, Courts in India
have no authority to direct the legislature to frame a law155, let alone specify a time-
period. This may be said to violate the basic principle of “separation of powers” which states
149
INDIA Const. Art. 122.
150
Pandit M.S.M. Sharma v. Dr. Shree Krishna, 1959 Supp (1) SCR 806.
151
V.C. Chandhira Kumar v. Tamil Nadu Legislative Assembly, 2013 (6) CTC 516; Re. Powers Privileges and
Immunities of State Legislatures, (1965) 1 SCR 413.
152
Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, 2007 3 SCC 184.
153
Lokniti Foundation v. Union of India And Ors., (2015) 13 SCC 622.
154
Fact Sheet ¶19.
155
Common Cause (A Regd. Society) v. U.O.I, AIR 2008 SC 2116; Gainda Ram & Ors. v. MCD and Ors, (1993)
3 SCC 178.

PAGE | 24
that the executive, legislature and judiciary should function independently of each other.
IV. THAT THE DNA SAMPLE COLLECTED BE USED FOR PATERNITY TEST.
application W.P. (Crl.) No. 980 of 2013 moved by Mr. 'X' claiming to be the biological father
of 'Master Z' be considered. The argument is threefold. [A] power of the court to direct DNA
test for parentage. [B] that there is no violation of the right to privacy and [C] that the best
interest of the child lies in the paternity test.
[A] POWER OF THE COURT TO DIRECT DNA TEST FOR PARENTAGE.
¶ 84. Hanumamma v. Polavarapu Subbayya156 in that case the application was preferred
under S. 151 of the Code of Civil Procedure invoking the inherent powers of the Court to direct
a blood test.
¶ 85. The Supreme Court in Sharda v. Dharampal157, observed the power to order a person
to undergo medical test. Passing of such an order by the Court would not be in violation of the
right to personal liberty under Article 21. The Supreme Court further observed that, "(1) In any
civil proceeding in which the parentage of any person falls to be determined, the Court may
either of its own motion or on an application by any party to the proceedings give a direction
(a) for the use of scientific tests to ascertain whether such tests show that a party to the
proceeding is or is not the father or mother of the person; and (b) for the taking within a period
specified in the direction, of bodily samples from all or any of the following, namely, that
person, or any party who is alleged to be the father or mother of that person or any other party
to the proceeding."158
156
Hanumamma v. Polavarapu Subbayya, 1951 1 MLJ 580.
157
Sharda v. Dharampal, AIR 2003 SC 3450.
158
ALEX SAMUEL & DR. SWATI PARIKH, DNA TESTS IN CRIMINAL INVESTIGATION AND PATERNITY DISPUTES 72
(2009).

PAGE | 25
¶ 86. Master Z's petition seeking direction as not to release DNA samples collected by law
enforcement agency for the paternity test as claimed by Mr. 'X' clearly indicate his refusal to
submit to the DNA test. However., the Hon'ble Court has power to direct the test even without
consent.
¶ 87. The sole purpose of DNA test is the conclusive determination of the paternity of the
dispute. However, it should not be left at the mercy of the other side for his no objection or
consent.159 The view to direct DNA test has been reiterated by the Apex Court in many cases
like Amarjit Kaur v. Harbhajan Singh160." The presumption of legitimacy cannot be disturbed
by "slender" materials under "compulsive and clinching" facts are brought to shake the
presumption and call for a DNA examination.
¶ 88. While affirming the power of the court to direct a DNA test, it had cautioned that said
power should be exercised only after weighting all "pros and cons" and also after being fully
satisfied that the "test of eminent need" i.e. as to whether it is not possible for the court to reach
the truth without use of such test.161
¶ 89. A recent court of appeal decision confirmed that the court can order DNA testing on
the application of a person claiming to be a natural parent when the sole guardian of the child
refuses to consent to their child having a DNA test.162
[B] THAT THERE IS NO VIOLATION OF THE RIGHT TO PRIVACY.
¶ 90. The Supreme Court in Sharda v. Dharampal163 has categorically said that (a) The right
to privacy has been developed by the supreme court over a period of time. With the expansive
interpretation of the phrase 'personal liberty' this right has been read into Art. 21.
159
Gautam Kundu, supra note 52; Dukhtar Jahan v. Mohd Farooq, (1987) 1 SCC 624; Amarjit Kaur v. Harbhajan
Singh, (2003) 10 SCC 228.
160
Amarjit Kaur v. Harbhajan Singh, (2003) 10 SCC 228.
161
Bhabani Prasad Jena v. Convener Secretary, Orissa State Commission for Women, AIR 2010 SC 2851.
162
T v. S and Anor, A No. 10394/2011 in CS(OS) 700/2008 36.
163
Sharda, supra note 157.

PAGE | 26
¶ 91. (b) But the right to privacy in terms of Art 21 of the constitution is not an absolute right.
If there were a conflict between fundamental would rights of two parties, that right which
advances public morality would prevail.
¶ 92. In Kanchan Bedi v. Gurpreet Singh Bedi164, it was observed (Para 7) that “From this
brief narration of precedents, it appears to me to be difficult to resist that the law, as it presently
stands, does not contemplate an impediment or violation of rights in directing persons to submit
themselves for DNA test, especially where the parentage of a child is in controversy for the
grant of maintenance.”
¶ 93. In Govind v. State of Madhya Pradesh165, it was held: "Assuming that the fundamental
rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is
itself a fundamental right, that fundamental right must be subject to restriction on the basis of
compelling public interest."
¶ 94. The Supreme Court in case of Bhabani Prasad Jena v. Convener Secretary, Orissa
State Commission for Women166, also upholds the principles of law so far as whether a direction
can be given to the court against a person to undergo DNA test. The Supreme Court has further
held that there is no violation of the right to life, or privacy of a person, in directing a DNA test
to be undergone by him. To undergo such test is not an intervention of his right to life.
¶ 95. In LB v. YD167, Murphy J expressed the view that the legitimacy of the administration
of justice would be harmed if reliable scientific evidence were to be excluded simply because
it involved a relatively minor infringement of privacy and upheld the court's right to order a
person within their jurisdiction to furnish a few drops of blood to materially assist in the
administration of justice. It was held that the court had the inherent power and authority as
guardian to order scientific test for discovery and doing justice to all parties in the suit, on the
164
Kanchan Bedi v. Gurpreet Singh Bedi, AIR 2003 Del 446.
165
Govind, supra note 43.
166
Bhabani Prasad Jena, supra note 161.
167
LB v. YD 2009 5 SA 463 (T).

PAGE | 27
basis of that it will generally be in the best interest of the child to have any doubts about the
paternity resolved by the best available evidence. It was also held that the rights of privacy and
bodily integrity may also be infringed when it is reasonably justifiable to do so.
¶ 96. Given the legal principles laid down by the Supreme Court in Goutam Kundu, Sharda
& Selvi, there can be no dispute at all, that upon being satisfied with the relevance of the
evidence and reliability of the scientific technique in question, the civil court can issue an order
to a person directing him to give a bodily sample for DNA profiling. It is well settled that
compulsion of law is not even coercion.168 Such a direction by the court on well settled binding
legal principles cannot constitute "compulsion" as to violate the constitutional rights of the
person concerned and is constitutionally and legally permissible.169
¶ 97. In the most famous case of Shri Rohit Shekhar v. Shri Narayan Dutt Tiwari170, the
plaintiff filing a suit claiming a decree for declaration that defendant was his biological father
and seeking direction that defendant should furnish blood samples for DNA testing to ascertain
his paternity. The Court held that Court has power to order such scientific test and held that:
¶ 98. “Child has right to know about his biological roots- This right to know can be enforced
through reliable scientific test. If the interest of the child is best sub served by establishing
paternity of the someone who is not the husband of her mother, the Court should not shut that
consideration together. A third party to marriage can be compelled to undergo scientific tests
of the nature of giving blood samples for the purpose of DNA testing- ordering such tests will
not violate right of the person under Article 21 of the Constitution.”
[C] THAT THE BEST INTEREST OF THE CHILD LIES IN THE PATERNITY TEST.
¶ 99. The right of the child to know her or his biological antecedents is now recognized
168
S.S. Sakhar Kharkhana Ltd. v. CIT Kolhapur, AIR 2004 SC 4716; Andhra Sugar vs. State of Andhra Pradesh,
AIR 1968 SC 599.
169
Supra note 137.
170
Ibid.

PAGE | 28
internationally as being of critical importance. Major international instruments such as the UN
Declaration on Human Rights171 have recognized the rights of a child irrespective of his or her
legitimacy and the Convention on the Rights of the Child, 1990 has expressly specified a right
to knowledge of parenthood. 172
¶ 100. The identity of a child as envisaged in Articles 8 and 9 of the United Nations
Convention on the Rights of the Child173 is preserved which enables the child to understand
the social legacy; traditional, cultural and ideological heritage; the circumstances of the child's
birth and identity of the father. The moral justification which underlines; the right of every
person to know one's origin has often been termed as informational self- determination.
¶ 101. In Rohit Shekhar v. Narayan Dutt Tiwari & Another174 it was said that "so far as a
child's rights are concerned, the ascertainment of one's biological origins is essential not only
in the social context or satisfaction of a child's right to know his origins."
¶ 102. In the instant case, the counsel on behalf of the respondents wants that the application
moved my Mr. X be not dismissed as DNA paternity test is the only way to find immediate
family members of Master Z.
¶ 103. In Ms. X v. Mr. Z175, a single judge of the Court had allowed a similar application as in
the instant case and had directed a DNA test. A fortiori, where the welfare of the child is in
issue, a similar test should be ordered.
¶ 104. The Supreme Court in a later decision in Sharda's case176 observed that, "Goutam
Kundu is, therefore, not an authority for the proposition that under no circumstances the Court
can direct that blood tests be conducted. It having regard to the future of the child has of course
sounded a note of caution as regard mechanical passing of such order. In some other
171
G.A. Res. 217A (III), Universal Declaration of Human Rights (Dec. 10, 1948).
172
Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.
173
Art. 8 and 9, G.A. Res. 217A (III), at 17 (Dec. 10, 1948).
174
Rohit Shekhar, supra note 137.
175
Ms. X v. Mr. Z, 1991 (1) JCC 101.
176
Sharda, supra note 157.

PAGE | 29
jurisdictions, it has been held that such directions should ordinarily be made if it is in the
interest of the child. The point for our consideration whether in the instant case such situation
has arisen to direct medical test i.e. DNA test as prayed for by the Mr. X. Any order for DNA
can be given by the court only if a strong prima facie case is made out for such a course.177
¶ 105. Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria178 it was reiterated
that the truth is the guiding star and the quest in the judicial process and the voyage of trial.
The trend world over of full disclosure by the parties and deployment of powers to ensure that
the scope of factual controversy is minimized was noticed. We are therefore of the opinion that
adverse inference from non-compliance cannot be a substitute to the enforceability of a
direction for DNA testing. The valuable right of the appellant under the said direction, to prove
his paternity through such DNA testing cannot be taken away by asking the appellant to be
satisfied with the comparatively weak "adverse inference".
¶ 106. Several leading NGOs and self-help groups expressed their interests in extending all
support to 'Master Z' to realize his dreams.179 It is contented that there is no assurance as to
them serving the best interest of Master Z. Also, there are safety concerns also associated with
the same.
¶ 107. The need for the paternity test in the instant case is to reintegrate the child with the
surviving family members. The best interest of the child can be served when he lives with his
immediate family members. The motive of the State is to find the immediate family member
of 'Master Z' and reintegrate the child with the surviving family members.180 With the coming
forward of Mr. X claiming to be the biological father of 'Master Z' and moving an application
before the Supreme Court of Indica is a step towards recognizing the child's family affinity. It
will be a step to remove the tag of orphan and give him a legitimate family lineage. Thus, it is
177
Gautam Kundu v. State of West Bengal, AIR 1993 SC 2295; Sharda, supra note 157.
178
Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, 2012 (3) SCALE 550.
179
Fact sheet ¶19.
180
Fact sheet ¶19.

PAGE | 30
humbly submitted that the application of Mr. 'X' in pending W.P. (Crl.) No. 980 of 2013 should
not be dismissed.

PAGE | XXIII
-PRAYER-
It is hereinafter most humbly prayed before the Hon’ble Supreme Court of Indica that, in the
light of arguments advanced, authorities cited and facts mentioned, the Hon’ble Court may be
pleased to adjudicate and declare that:
1. The entire 'Covert Operation' is constitutional and the arrest of Mr. X is legal and valid.
2. Dismiss the PIL of the petitioner 'Technology for All &Justice - (TAJ)'
3. Direction as to release DNA profile collected by law enforcement agency for the
paternity test as claimed by Mr. 'X' be given.
And any other relief that the Hon’ble Court may be pleased to grant in the interest of
justice, equity and good conscience.
All of which is humbly submitted.
Sd/-
-COUNSELS ON BEHALF OF THE RESPONDENTS-
MEMORIAL for RESPONDENT PRAYER

NRMC 446 (Respondent)

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TC: 48

RGNUL INTRA MOOT, 2019

IN THE HON’BLE DHILLIKA HIGH COURT OF HIND

(FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF INDICA)

IN THE MATTERS OF:

W.P. (CRIMINAL) NO. ____ OF 2019

-LIST OF ABBREVIATION ............................................................................................... IV

-INDEX OF AUTHORITIES ............................................................................................ VIII

-STATEMENT OF JURISDICTION ............................................................................... XVI

-STATEMENT OF FACTS .............................................................................................. XVII

-SUMMARY OF ARGUMENTS...................................................................................... XXI

I. THE PETITIONS FILED ARE NOT MAINTAINABLE IN THE SUPREME

32 OF THE CONSTITUTION OF INDICA IS NOT MAINTAINABLE. ................ 1

of fundamental rights. ......................................................................................... 1

[B] THAT THE PIL FILED IS NOT MAINTAINABLE. ............................................... 4

i) That there has been no violation of the fundamental rights. .............................. 4

ii) That the requisite locus standi is not present. ..................................................... 5

[C] THAT THE WRIT PETITION FILED BY MASTER Z IS NOT

MEMORIAL for RESPONDENT TABLE OF CONTENTS

i) That no infringement of fundamental rights concerned. .................................... 6

ii) That the petitioner has no locus standi. .............................................................. 7

II. THAT THE COVERT OPERATION FORMULATED BY THE STATE OF A&P

WAS LEGAL AND VALID. ............................................................................................ 7

[A] DNA EVIDENCE COLLECTED UNDER COVERT OPERATION IS

i) Significance of DNA Evidence in Crime Resolution ......................................... 7

[B] THAT THE SEARCH AND SEIZURE CONDUCTED IN PURSUANCE OF

COVERT POLICY IS ADMISSIBLE AND VALID .............................................. 12

i) The Search and Seizure is in accordance with Code of Criminal Procedure

[C] TAPE RECORDINGS AND CONFESSIONS OF MULES INVOLVED IN ILLICIT

DRUG TRAFFICKING DID NOT VIOLATE THE RIGHT TO REFRAIN FROM

MAKING A STATEMENT ..................................................................................... 15

i) There is no infraction of Fundamental Rights .................................................. 15

ii) Admissibilty of Tape Recording and Confessional Statements ....................... 17

III. THAT THE DNA DATABASE WILL BE VIOLATIVE OF THE

CONSTITUTIONAL PROVISIONS ........................................................................... 19

[A] THAT THERE ARE POSSIBILITIES OF ETHICAL-LEGAL PROBLEM IN

RETENTION AND PRESERVATION OF THE DNA SAMPLES ........................ 19

MEMORIAL for RESPONDENT TABLE OF CONTENTS

[B] THAT THE ISSUE OF GUIDELINES BY THE COURT WILL BE INTRUSION IN

THE LEGISLATIVE DOMAIN. ............................................................................. 21

IV. THAT THE DNA SAMPLE COLLECTED BE USED FOR PATERNITY

[B] THAT THERE IS NO VIOLATION OF THE RIGHT TO PRIVACY. ................. 25

-PRAYER ......................................................................................................................... XXIII

MEMORIAL for RESPONDENT TABLE OF CONTENTS

AIR All India Reporter

CRC Convention on the Rights of the Child

CrLJ Criminal Law Journal

DNA Deoxyribonucleic Acid

ECtHR European Court of Human Rights

EHCR European Convention on Human Right

MEMORIAL for RESPONDENT LIST OF ABBREVIATIONS

GWA Guardianship and Wards Act

Narcotic Drugs and Psychotropic

NGO Non-Governmental Organization

PIL Public Interest Litigation

PUCL People’s Union for Civil Liberties

MEMORIAL for RESPONDENT LIST OF ABBREVIATIONS

SCC Supreme Court Cases

SCR Supreme Court Report

TAJ Technology for All & Justice

U.O.I Union of India

UDHR Universal Declaration of Human Rights