9TH JAMIA NATIONAL MOOT COURT COMPETITION, 2022

9TH JAMIA NATIONAL MOOT COURT

COMPETITION, 2022
[ONLINE]
3RD – 5TH JUNE, 2022

Organised by

MOOT COURT ASSOCIATION,

FACULTY OF LAW, JAMIA MILLIA ISLAMIA

KNOWLEDGE PARTNERS

MOOT PROPOSITION
 9TH JAMIA NATIONAL MOOT COURT COMPETITION, 2022

IN THE SUPREME COURT OF KYMLICKA

ANDY WHITE V. UNION OF KYMLICKA

[Writ Petition (Criminal) No. 488 of 2022]
AND
ANDY WHITE & ANR. V. NATIONAL CAPITAL TERRITORY OF NIMBUS
[Special Leave Petition (Criminal) No. 198 of 2020]

1. The Union of Kymlicka (“Kymlicka”) hosts the second largest population of the
world (i.e., 1.4 billion) and is famous for its diverse culture, ethnicity and religion.
Kymlicka got independence from the colonial regime in 1947. Thereafter, the mothers
and fathers of this country dreamt of making it an inclusive country with an ultimate
objective of promoting and achieving Fraternity. The ideals like socialism, secularism,
equality and justice were imbibed in the Constitution of Kymlicka. However, certain
colonial laws providing for offences like Sedition and Waging war against the
government were not repealed and continued to be in force even after the enforcement
of the Constitution.

2. Various national parties have formed their government at the Union level in Kymlicka
after independence. The laws and policies of almost all the governments have always
been subject to criticism in one way or the other. These criticisms were not only
confined to academic debates but also witnessed major protests by students, activists,
NGOs, academicians, etc. State Governments in Kymlicka have extensively charged
such persons for offences like sedition, waging war, unlawful activities, rioting,
affray, destruction of public properties etc.

3. Kymlicka kept experiencing an unbated increase in crime rate every year. These
crimes majorly included offences against women, children and terrorist activities. As
per the National Criminal Records Bureau (“NCRB”), these offences grew by 550%
between the year 2010 and 2017. Special laws to deal with terrorist activities were
enacted. These laws included Unlawful Activities (Prevention) Act, 1967 (“UAPA”);
The Prevention of Money Laundering Act, 2002 (“PMLA”); National Investigative
Agencies Act, 2008 (“NIA Act”). Furthermore, the Kymlickan government enacted a

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new law called as Criminal Procedure (Identification) Act, 20221 (“Act of 2022”) in
order to identify the prisoners and facilitate the investigating agencies in conducting
speedy and efficient investigation. Accordingly, this law received the assent of the
President as well.

4. Andy White is pursuing his studies in journalism from a private college in the capital
city of Kymlicka. He also runs his own website where he posts his blogs which are
majorly critiques of the government. Andy lost his parents when he was 10 years of
age and since then his aunt, Shelly Cobb has been taking care of his education and
daily expenses. Shelly Cobb is a citizen of Kymlicka who resides in a different
country Switzerland. She runs a business which is spread over few countries. She
sends about INR 40,000/- to Andy for his monthly expenses and INR 3,50,000/- every
year for his college fees.

5. Andy White has been a staunch proponent of protection of fundamental rights. He has
gained popularity in metropolitan cities of Kymlicka due to his constant presence on
social media and his website. On 20.04.2017, he posted a blog on his website which
was titled as “Repeal the archaic sedition law!”. In one of the paragraphs he stated
“…..the offence of Sedition was a tool used by the colonial rulers to stifle the voice of
our freedom fighters. However, an unabated use of this law by the present
government makes them no different from the colonial rulers. Due to the rampant
misuse of this provision, the NCRB figures look fat, whereas the stark reality is that
the protesters are innocent and have been exercising their right to dissent. Moreover,
the government has continuously enacted security legislations which goes against the
principles of natural justice and the constitution.” His blog received both hot and cold
responses. Andy also said that soon he shall plan a peaceful protest against the
rampant use of security legislations. Rumours spread that he is planning an unlawful
assembly. Based on the cryptic information received by the police, his calls were
being intercepted.

6. On 21.04.2017, Andy posted on his social media accounts that he is planning to stage
a peaceful protest along with his activist friends in the capital city of Kymlicka (NCT
of Nimbus) and requested all others to join him. The same day many protestors

1
Refer to Criminal Procedure (Identification) Bill, 2022 (India); mutatis mutandis.

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gathered in large numbers, however, rumours spread that Andy receives foreign
funding merely to incite people and dismantle the existing government. Andy
responded to these rumours, however, but to no avail, it had already become a
wildfire.

7. The protests continued for a few days and during the protest Andy gave several
speeches before the mass gathering requesting them to keep raising their voices
against the arbitrary and unconstitutional acts of the government. He also said we
should keep fighting at all costs and must do whatever it takes. He promised to
provide all the logistical support to the protestors. One of the protestors recorded his
video and posted the clippings of such video on social media. Thereafter, few reports
of violence were reported in the adjoining district. The police then reached the protest
spot to stop the protest, however, there were physical altercations. The reason for the
physical altercation is unclear.

8. Andy was arrested from the protest site and an FIR [FIR No. 98/2017] was registered
against him under Sections 13, 16, 17, 18 of the UAPA; Sections 124A and 120B of
IPC2. During investigation, the police found that he had approximately INR
6,00,000/- cash at his apartment. On being interrogated about the source of such
money, Andy kept silent. Statements of Andy‟s friends were recorded u/s 161 of
Criminal Procedure Code, 1973 (“CrPC”) wherein they said that Andy has been
raising crowdfunding to carry out the logistical expenses of protests and rallies. They
also mentioned that he gets foreign transfers as well. The Central Government suo
motu directed the National Investigation Agency (“NIA”) to carry out further
investigation in the matter. Case diaries and all materials collected by the police
including the call recordings were handed over to NIA. While the investigation was
pending, Andy‟s bail application was rejected by the Special Court constituted under
the NIA Act.

9. The police also shared the information with the Enforcement Directorate (“ED”) on
an apprehension of money laundering being involved. ED lodged an Enforcement
Case Information Report (“ECIR”) against Andy u/s 4 of PMLA. During the
investigation, ED served a notice u/s. 50 of PMLA and accordingly the Special Court

2
Indian Penal Code, 1860.

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issued a production warrant and custody of 5 days was given for interrogation. During
interrogation Andy admitted that he has raised crowd funding and has also been
receiving foreign transfers from his aunt, Shelly. He also admitted that the contents of
video clipping shared online were true but were being quoted out of context. After the
interrogations got completed by NIA and ED, Andy was remanded to judicial
custody. While investigation was pending, the Special Court allowed the NIA officers
to collect voice samples from the accused in order to match it with the call recordings
which had incriminating conversations.

10. The Special Court took cognisance against Andy based on the chargesheet submitted
by the NIA. While taking cognisance, it also took into consideration the case diaries
prepared by ED. The court framed all the charges which were pressed in FIR and
ECIR. While the trial was pending, Andy‟s aunt came back to Kymlicka to fight
Andy‟s case. The Special Public Prosecutor filed an application u/s 319 CrPC to
arraign Shelly as an accused in the same trial, on the ground that she has been
complicit in foreign funding and has played seminal role in Andy‟s criminal
endeavours in Kymlicka. Therefore, the Special Trial Court accepted the application
filed by the Special Public Prosecutor.

11. The prosecution submitted video clippings which were shared online as evidence. The
prosecution also submitted newspaper articles which stated that protesters led by
Andy caused disruptions in public places. The transcriptions of conversation and call
recordings were submitted in a pen-drive along with an electronic evidence certificate
u/s 65B(4) of Evidence Act, 18723 (“IEA”). The copy of electronic evidence was
given to the accused after the commencement of trial. The prosecution further
tendered INR 6,00,000/- cash along with its seizure memo and transaction receipts as
evidence.

12. After the prosecution evidence was closed, the Special Court examined both the
accused u/s 313 of CrPC. Andy informed that he is innocent as he has only staged a
peaceful protest. He further informed that he was subject to custodial violence and
certain inculpatory statements were elicited from him. Shelly said that she has only
been paying Andy‟s college fee and his monthly expenses. Thereafter, during the

3
Refer to Indian Evidence Act, 1872; mutatis mutandis.

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defence evidence stage, Andy submitted his bank account details which proved that
most of the transfers were from his aunt, and there were several transactions from
various other sources. He also submitted that the call recordings merely contain his
conversations with Shelly about his college expenses and his daily endeavours, both
in college and outside college, and such conversations are insufficient to prove his
guilt beyond reasonable doubt. He also submitted that the video clippings are being
shown out of context. Moreover, the newspapers articles are nothing but an
exaggeration of facts, and public disruptions were caused by some other fringe
elements who came only to disrupt the peaceful protest.

13. After hearing the final arguments, the Special Court found that the prosecution has
established its case beyond reasonable doubt. While convicting Andy and Shelly, the
court heavily relied upon the electronic evidence and the same was weighed as
primary evidence. The court also relied on the statements given by Andy to ED and
considered it to be proved. The court further stated that the defence has failed to
disprove the onus and their story fails to inspire confidence. The court also found that
Andy‟s blogs and speeches were directly connected with the unlawful assembly and
violence. Moreover, the accused failed to provide proper explanation to all the
transactions and money received in his bank account. Shelly, on the other hand, was
convicted for money laundering and criminal conspiracy as she has constantly aided
Andy‟s endeavours through financial means. Both the accused preferred an appeal
against conviction before the High Court. However, the High Court confirmed the
conviction and held that there is no reason to interfere with the order of the Special
Court.

14. Andy and Shelly filed an SLP [Special Leave Petition (Criminal) No. 198 of 2020]
under Article 136 against the impugned order of the High Court which upheld
conviction by the Special Trial Court. In addition to various other grounds
challenging their conviction, the appellant-accused submitted that the Special Court,
by convicting, and the High Court by confirming the conviction, committed a gross
miscarriage of justice by wrongly applying legal principles and statutes. The
appellant-accused raised the following objections in their SLP-

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a. Confessional or inculpatory statements given by Andy to ED during investigation

should not be allowed to be proved before the trial court as ED officers should be
considered as „police officers‟ within the meaning of S. 25 of Evidence Act;

b. Intercepted call recordings are illegally obtained evidence because they were
recorded merely on the pretext of rumour and no emergent situation existed for
the same. Thus, such evidence should not be admissible before a trial court as it
amounts to violation of right to privacy;

c. The Special Court did not have the power to direct the NIA officers to record
voice samples during investigation and such an order is in violation of the right to
privacy of the accused;

d. The trial court erred in admitting the electronic evidence as primary evidence
because the original device over which calls were recorded were not produced;

e. The trial court exercised its discretion arbitrarily when it gave the copies of
electronic evidence only after the commencement of trial, and this therefore
resulted in violation of principles of natural justice;

f. Arraigning Shelly as a co-accused was wrong because the requisite threshold u/s
319 CrPC is more than a „prima facie case‟ against the co-accused, and further no
cogent evidence was produced against her.

15. The State filed its counter-affidavit in response to the SLP filed by the accused. The
state argued that firstly, PMLA allows ED to take certain statements on oath because
of the gravity of the offence involved. Secondly, NIA Act is a special legislation and
shall override the general evidence law. The state further argued that „fruit of
poisonous tree doctrine‟ does not apply in this country and if evidence is related to
the „facts in issue‟ or „relevant facts‟ of the case, then such evidence cannot be
excluded. Thirdly, the state argued that the law provides for discretionary powers to
the trial court to record voice samples in the interest of justice. Moreover, even though
the electronic evidence was given only after the commencement of the trial, but the
same was without prejudice to the rights of the accused as he had the electronic
evidence throughout the prosecution evidence stage, and was given all reasonable
opportunity to disprove the same. The matter is still pending and final arguments are
yet to heard.
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16. As these cases were pending, in the year 2020, a pandemic broke out due to the spread
of COVID-19 which hampered the functioning of courts in Kymlicka. During this
period, Andy and Shelly were serving their sentences pursuant to their conviction by
the Special Court. In 2022, Andy reported several instances of custodial torture to his
lawyer and informed that he was forced to give measurements as per the new law
enacted for identification of prisoners.

17. When the pandemic started to subside in the year 2022, Andy moved a writ petition
under Article 32 [Writ Petition (Criminal) No. 488 of 2022] challenging the
Criminal Procedure (Identification) Act, 2022 on grounds violation of privacy and
other fundamental rights under the Constitution. He also submitted that in the absence
of a data protection law and regulatory framework, collection of biological samples
and biometrics is disproportionate and unconstitutional. In the same petition he also
challenged the constitutional validity of S. 50 of PMLA. The Court admitted the
petition. The SLP and the Writ Petition was listed before the Supreme Court as Item
No. 1 and 2, respectively before the same bench. Accordingly, the following issues
were framed in the respective petitions-

a. Whether the Criminal Procedure (Identification) Act, 2022 constitutionally valid

and whether Andy can be compelled to give measurements and biological
samples to the jail authorities?

b. Whether S. 50 of Prevention of Money Laundering Act, 2002 unconstitutional?

c. Whether the trial court erred in applying the procedural laws correctly based on
the grounds mentioned in paragraphs 14 and 15?

d. Whether the Special Court erred in convicting Andy for the offences u/s 13, 16,
17, 18 of UAPA; u/s 4 of PMLA and u/s 124A, 120B of IPC; and Shelly u/s 4 of
PMLA and u/s 120B of IPC?

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Instructions-
1. The laws of Kymlicka are pari materia to the laws of India.
2. The facts of this Moot Proposition are purely a work of fiction and purely intended for
academic purpose.
3. The participants are not required to frame any additional issue, whereas they are free
to frame sub-issues on the given issues.
4. The participants are not required to frame arguments on maintainability or
jurisdiction.
5. In addition to other relevant legal sources, the participants are encouraged to apply
criminal jurisprudence and constitutional principles to advance their arguments.
6. Participants may also refer to foreign judicial pronouncements, foreign doctrines and
principles, but they must bear in mind that they will not be binding and will have
persuasive value on the Supreme Court of Kymlicka.
7. The Moot Proposition is drafted by Advocate Mohd. Yasin, Delhi High Court, and
any attempt to contact him regarding this moot shall result in disqualification.