P (TC PNO39)

2nd PN MATHUR NATIONAL MOOT COURT MEMORIAL COMPETITION

29th AND 30th APRIL 2023

BEFORE THE HON’BLE

SUPREME COURT OF KESI

Writ Petition arising out of Art. 32 and 139A (1) of the Indian Constitution

IN THE MATTER BETWEEN

Writ Petition Number __ of 2023

MR. SUKH …PETITIONER

V.

THE STATE …RESPONDENT

MEMORIAL BEHALF OF THE PETITIONER

I
 TABLE OF CONTENTS

TABLE OF CONTENTS..........................................................................................................II

LIST OF ABBREVIATIONS..................................................................................................IV

INDEX OF AUTHORITIES....................................................................................................VI

STATEMENT OF JURISDICTION.....................................................................................VIII

STATEMENT OF FACTS......................................................................................................IX

ARGUMENTS PRESENTED.................................................................................................XI

SUMMARY OF ARGUMENTS............................................................................................XII

ARGUMENTS ADVANCED...............................................................................................- 1 -

1. That the Constitutional Validity of Benami Act of 2016 is not applicable retrospectively.- 1 -

1.1 Section 3 and 5 of the 2016 Act cannot be applied retrospectively........................- 1 -

1.2 2016 Act has substantially changed the scope of the Offence................................- 2 -

1.3. Central Government waived its Right of Implementation of the 1988 Act prior to
01.11.16.........................................................................................................................- 5 -

1.4. That the Ancestral Property cannot be attached as “proceeds of crime”.............- 6 -

2. That the recording device cannot be seized by the Investigating Agency and subsequently, is
inadmissible in law............................................................................................................- 7 -

2.1. There is no case of PMLA......................................................................................- 7 -

2.2. Admissibility of the recording device would be violative of Art. 20(3) of the Constitution
of India..........................................................................................................................- 9 -

2.3. Admissibility of the recording device is violative of Section 131 of the Indian Evidence
Act, 1872.....................................................................................................................- 10 -

1. Whether the ED can utilise the fingerprints taken under the Criminal Procedure
(Identification) Act, 2022 to unlock the mobile phone without taking the consent of Mr Sukh? -
11 -

3.1. Enforcement Directorate has no authority under the CPI Act............................- 11 -

II
 3.2. It is Violative of Mr Sukh’s Right Against Self- Incrimination under Art. 20(3) of the
Constitution of India...................................................................................................- 13 -

3.3. It is violative of Mr Sukh’s Right to Privacy.....................................................- 16 -

4. Janice has the Right to Privacy against being recorded in a non-consensual recording
device...............................................................................................................................- 18 -

4.1. The non-consensual recording does not fulfil the requirements of restraint on the Right to
Privacy under Art. 21 and 19 of the Indian Constitution............................................- 19 -

4.2. Janice had a reasonable expectation of privacy against being recorded in a non-
consensual recording devise.......................................................................................- 21 -

4.3. The non-consensual recording does not fulfil any condition mentioned under Art. 6(1)
of the GDPR................................................................................................................- 22 -

PRAYER...............................................................................................................................XIV

III
 LIST OF ABBREVIATIONS

ABBREVIATION FULL FORM

& And

§ Section

¶ Paragraph

1988 Act The Benami Transactions

(Prohibition) Act, 1988
2016 Act Prohibition of Benami Property
Transactions Act, 1988

AIR All India Reporter

ALT Andhra Law Times

Anr. Another

Art. Article

Commr. Commissioner

Const. Constitution

Corp Corporation

CPIA Appa

Cr.P.C Criminal Procedure Code, 1973

DLT Delhi Law Times

ED Enforcement Directorate

ed. Edition

EU European Union

GDPR General Data Protection

Regulation
Hon’ble Honourable

IPC Indian Penal Code, 1860

Ltd. Limited

IV
No. Number

Ors. Others

PMLA Prevention of Money- Laundering

Act, 2002
PROP Proposition

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

Supp Supplement

TN Tamil Nadu

u/A Under Article

u/s Under Section

UOI Union of India

v. Versus

W.P. Writ Petition

WLR Weekly Law Reports

V
 Memorial for PETITIONER

INDEX OF AUTHORITIES

Cases

Amin And Anr. vs The State, AIR 1958 All 293.......................................................- 9 -, - 15 -

Binapani Paul v. Pratima Ghosh, (2007) 6 SCC 100............................................................- 4 -
C Gupta v. Glaxo Smith Kline Pharmaceuticals Limited, JT 2007 (8) SC 480....................- 4 -
Directorate of Enforcement v. Deepak Mahajan, 1994 AIR 1775 1994 SCR....................- 12 -
Directorate of Enforcement v. Vakamulla Chandrashekhar, 2018 SCC OnLine SC 3800.- 13 -
Gobind v. State of M.P., (1975) 2 SCC 148..................................................- 17 -, - 20 -, - 21 -
Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602..................................- 4 -
Joseph Isharat v. Rozy Nishikant Gaikwad, 2017 SCC OnLine Bom 10199.......................- 4 -
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1........................................................- 17 -
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.............................................- 18 -, - 19 -
MP Sharma v. Satish Chandra, AIR 1954 SC 300: 1954 SCR 1077...............- 9 -, - 14 -, - 16 -
Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424........................................- 10 -, - 14 -, - 15 -
Niharika Jain v. Union of India, 2019 SCC OnLine Raj 1640..............................................- 4 -
People's Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301.............- 18 -
R. Rajagopal Reddy v. Padmini Chandrasekharan, (1995) 2 SCC 630................................- 4 -
R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471.................................................- 19 -
Raja Ram Jaiswal v. State of Bihar, (1964) 2 SCR 752......................................................- 12 -
Ramesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940......................- 12 -, - 14 -
Sakshi v. UOI, (2004) 5 SCC 518.........................................................................................- 4 -
Seema Garg v. Deputy Director, 2020 SCC OnLine P&H 738............................................- 6 -
Selvi v. State of Karnataka, (2010) 7 SCC 263...................................................................- 16 -
State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10........................................- 16 -, - 19 -
The State of Punjab v. Barkat Ram, (1962) 3 SCR 338......................................................- 12 -
Union of India vs Ganpati Dealcom Pvt Ltd., (2023) 3 SCC 315................................- 1 -, - 5 -
Vijay Madanlal Choudhary v. Union of India, 2021 SCC OnLine SC 1048......................- 13 -

Statutes

Prohibition of Benami Property Transactions Act, 1988, No. 45, Acts of Parliament, 1988
(India)................................................................................................................................- 1 -

VI
 Memorial for PETITIONER

The Benami Transactions (Prohibition) Amendment Act, 2016, No. 43, Acts of Parliament,
2016 (India).......................................................................................................................- 1 -
The Criminal Procedure (Identification) Act, 2022, §2, No. 11, Acts of Parliament,
2022(India)......................................................................................................................- 11 -
The Indian Evidence Act, 1872, § 131, No. 01, Acts of Parliament, 1872(India) [..............- 7 -
The Indian Penal Code, 1860, § 406, No. 45, Acts of Parliament, 1860 (India)...................- 9 -
The Indian Penal Code, 1860, §19, No. 45, Acts of Parliament, 1860(India).....................- 12 -
The Information Technology Act, 2000, No. 21, Acts of Parliament, 2000(India)............- 20 -
The Prevention of Money Laundering Act, 2002, § 2, cl. u, No. 15, Acts of Parliament, 2003
(India)................................................................................................................................- 6 -
The Telegraph Act, 1885, No. 31, Acts of Parliament, 1885(India)...................................- 20 -

Foreign Cases

Brown v. Walker 40 L Ed 819.............................................................................................- 14 -

Katz v. United States, 389 U.S. 347 (1967)........................................................................- 21 -
Minnesota v. Olson, 495 U.S. 91 (1990).............................................................................- 21 -
Murray v. Big Pictures (UK) Ltd, [2008] 3 WLR 1360......................................................- 21 -
Wolf v. Colorado, 338 U.S. 25 (1949)...............................................................................- 18 -

Books

BRYAN A. GARNER, BLACK'S LAW DICTIONARY 377 (10th ed. 2014)................................- 21 -

J.K. VERMA, BENAMI PROPERTY: A COMMENTARY 114 (1st ed. 2018)...............................- 2 -
Manu Sharma & Wadhwas, Guide to the PMLA & Proceeds of Crime 328 (1st ed. 2022).- 8 -
MULLA, HINDU LAW, (24th ed. 2021)....................................................................................- 6 -

Treatises

G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948); G.A. Res.
2200A (XXI)...................................................................................................................- 19 -
International Covenant on Civil and Political Rights (Dec.16, 1996).................................- 19 -

VII
 Memorial for PETITIONER

STATEMENT OF JURISDICTION

Both Janice and Mr. Sukh moved the Hon’ble Supreme Court of Kesi under Art. 32 of the
Constitution of India in view of the multiple instances of violations of their fundamental
rights mentioned under Part Ⅲ of the Constitution. The Hon’ble Court clubbed the Writ
Petition filed under Art. 32 of the Constitution of India, 1950 1 by Janice and Mr. Sukh
pursuant to its power under Art. 139A (1) of the Constitution of India, 19502.

Art. 32 of the Constitution of India, 1950 reads as follows –

Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part.

Art. 139A (1) of the Constitution of India, 1950 reads as follows-

Transfer of certain cases –

(1) Where cases involving the same or substantially the same questions of law are
pending before the Supreme Court and one or more High Courts or before two or
more High Courts and the Supreme Court is satisfied on its own motion or on an
application made by the Attorney-General of India or by a party to any such case that
such questions are substantial questions of general importance, the Supreme Court
may withdraw the case or cases pending before the High Court or the High Courts
and dispose of all the cases itself.

1
INDIA CONST. art. 32.
2
INDIA CONST. art. 139A, cl.1.

VIII
 Memorial for PETITIONER

STATEMENT OF FACTS

Prerequisite Contextual Information

The State of Kesi is a thriving democratic nation with an emphasis on strong economic
development and helping its underprivileged people. Among the most
successful Entrepreneur in the nation was Janice, who together with his co-founder Mr. Sukh
founded a cosmetic company named "Features". They also formed company called “Ted Co
Pvt. Ltd” which was their investment vehicle for future projects. On 20.11.2015, Ted Co Pvt.
Ltd. purchased a property in its name for a total consideration of Rs. 8,21,00,000/- which was
paid from the capital of the company itself, in the State of Shashi. On 31.05.2016, M/s Starks
Properties Pvt. Ltd. and M/s Kats acquired the 99.9% shareholdings of Ted Co Pvt. Ltd. for a
total amount of Rs. 18,07,000/-.

Attachment of The Property

On 28.09.2021 under the Benami Transactions (Prohibition) Amendment Act, 2016,

Adjudicating Authority issued a show cause notice to Ted Co Pvt. Ltd. as to why the
aforesaid property should not be considered as Benami property and the company as
Benamidar. Ted Co Pvt. Ltd. in reply to the aforesaid notice denied that the scheduled
property is a Benami Property. Subsequently, Adjudicating Authority arbitrarily passed an
order on 12.12.2021 to attach the property provisionally. Aggrieved by the same Ted Co Pvt.
Ltd. challenged the order in the High Court of Shashi stating that the Benami Transactions
(Prohibition) Amendment Act, 2016 can be applied prospectively and not retrospectively and
thus the provisional attachment order is non-est in law.

Charged under PMLA

The Enforcement Directorate in the meantime, has filed for attachment of the property of Ted
Co Pvt Ltd as well as the ancestral property of Janice and Mr Sukh which later were barred
by the Adjudicating Authority and were subsequently charged under sections 406 and 420 of
IPC read with the section 3 of Prevention of Money Laundering Act, 2002.

Infringement of Privacy

On 1st January 2021 Janice, and Mr. Sukh got into a very heated discussion with respect to
the frivolous and arbitrary cases made by investigating agencies against them and alleged

IX
 Memorial for PETITIONER

several false financial improprieties at each other. They also got engaged in verbal altercation
with each other and discussed many financial dealings of them regarding their company. All
this confidential conversation got recorded on a smart device named “Calc” which could
record any conversation only when the user consented to it. Mr. Sukh retrieved the audio
recording of their conversation and transferred it on his messaging app.

Janice while made aware of the situation that ED applied to the court for producing the
confidential recording on the Calc device, filed a writ petition regarding that it violates her
Right to Privacy and therefore same cannot be produced to the ED.

On 8.2.2022, ED arrested both Janice and Mr. Sukh for offences under 406 and 420 of IPC
read with Section 3 of PMLA. Post arrest Mr. Sukh was compelled to give his fingerprints to
the ED in order to unlock his phone by which ED recovered the confidential audio file. Janice
petitioned the Supreme Court of Kesi for flagrant breach of privacy and non-consensual
recording that has been illegally obtained by ED to be declared inadmissible.

X
 Memorial for PETITIONER

ARGUMENTS PRESENTED

ISSUE Ⅰ

WHETHER CONSTITUTIONAL VALIDITY OF THE 2016 ACT RETROSPECTIVELY APPLIES OR NOT?

WHETHER ANCESTRAL PROPERTY CAN BE ATTACHED AS “PROCEEDS OF CRIME” OR NOT?

ISSUE Ⅱ

WHETHER A RECORDING DEVICE CAN BE SEIZED BY THE INVESTIGATING AGENCY AND

SUBSEQUENTLY, IS IT ADMISSIBLE IN LAW?

ISSUE Ⅲ

WHETHER THE ED CAN UTILISE THE FINGERPRINTS TAKEN UNDER THE CRIMINAL
PROCEDURE (IDENTIFICATION) ACT, 2022 TO UNLOCK THE MOBILE PHONE WITHOUT TAKING
THE CONSENT OF MR SUKH?

ISSUE Ⅳ

WHETHER JANICE HAS THE RIGHT TO PRIVACY AGAINST BEING RECORDED IN A NON-
CONSENSUAL RECORDING DEVICE?

XI
 Memorial for PETITIONER

SUMMARY OF ARGUMENTS

1. That the Constitutional Validity of the Prohibition of Benami Transaction Act,

2016 is not applicable retrospectively and that the Ancestral Property cannot be
attached as “proceeds of crime.”
It is humbly submitted that the constitutional validity of the Prohibition of Benami
Transaction Act, 2016 is not applicable retrospectively because firstly, Sections 3 and
5 of the 2016 Act cannot be applied retrospectively. Secondly, 2016 Act has
substantially changed the scope of the Offence. And thirdly, Central Government
waived its Right of Implementation of the 1988 Act prior to 01.11.16. Moreover, it is
submitted that the Ancestral Property cannot be attached as “proceeds of crime.”
2. That the recording device cannot be seized by the Investigating Agency and
subsequently, it is inadmissible in law.
It is humbly submitted that the recording device cannot be seized by the Investigating
Agency and subsequently, it is inadmissible in law because firstly there is no case of
PMLA. Secondly, the admissibility of the recording device would be violative of Art.
20(3) of the Constitution of India. And thirdly, the admissibility of the recording
device is violative of Section 131 of the Indian Evidence Act, 1872.
3. That the ED cannot utilize the fingerprints taken under the Criminal Procedure
(Identification) Act, 2022 to unlock the mobile phone without taking the consent
of Mr Sukh

That the ED cannot utilize the fingerprints taken under the Criminal Procedure
(Identification) Act, 2022 to unlock the mobile phone without taking the consent of
Mr Sukh because firstly Enforcement Directorate has no authority under the CPI Act.
Secondly, it is violative of Mr Sukh’s Right Against Self-Incrimination under Article
20(3) of the Constitution of India because:

(i) It is a right available to the person accused of an offence

(ii) It is a protection against the compulsion to be a witness
(iii) It is a protection against such compulsion resulting in his giving evidence
against himself.

And thirdly, it is violative of Mr Sukh’s Right to Privacy.

XII
 Memorial for PETITIONER

4. That Janice has the Right to Privacy against being recorded in a non-consensual
recording device.

It is humbly submitted that Janice has the Right to Privacy against being recorded in a
non-consensual recording device because firstly, the non-consensual recording does
not fulfil the requirements of restraint on the right to privacy under Articles 21 and 19
of the Indian Constitution. And secondly, Janice had a reasonable expectation against
being recorded in a non-consensual recording devise

XIII
 Memorial for PETITIONER

ARGUMENTS ADVANCED

1. THAT THE CONSTITUTIONAL VALIDITY OF BENAMI ACT OF 2016 IS NOT APPLICABLE

RETROSPECTIVELY.

1. It is humbly submitted before the Hon’ble Supreme Court that The Prohibition of Benami
Transactions Act, 1988 3[hereinafter 2016 act] is not retrospectively applicable, therefore
it can only be applied prospectively because firstly (1.1), Section 34 and 55 of the 1988 `
Act cannot be applied retrospectively, secondly (1.2), there is a substantive change in the
definition of benami transaction and property in the 2016 Act, thirdly (1.3), Central
Government waived its Right of Implementation of the 1988 Act prior to 01.11.16. And
“ancestral property” cannot be attached as “proceeds of crime.”

1.1 Section 3 and 5 of the 2016 Act cannot be applied retrospectively.

2. It is the humble submission of the COUNSEL for the PETITIONERS that in the landmark
judgement of Union of India vs Ganpati Dealcom Pvt Ltd. 6 [hereinafter, Ganpati case],
the Hon’ble SC, in order to check the retrospective applicability of the 2016 Act, first
checked the constitutionality of the Prohibition of Benami Property Transactions Act,
19887 [hereinafter 1988 Act] during which section 3 and 5 of the 1988 Act was declared
unconstitutional.
3. It was held that Section 3 read along with Section 2(a) of the 1988 Act8 created a penal
provision prohibiting and punishing benami transactions without the requirement of mens
rea, thus creating a strict liability. Since section 3(2) of the 2016 Act 9 provided
retrospective punishment for benami transactions before the date of commencement of
this Act i.e., 1st November 2016 with an imprisonment of 3 years or fine or both, it was
held to be unconstitutional as being violative of Art. 20(1) of the Indian Constitution 10.
On the other hand, sections 3(1)11 and 3(3)12 were held to have prospective applications.

3
The Benami Transactions (Prohibition) Amendment Act, 2016, No. 43, Acts of Parliament, 2016 (India)
[hereinafter 2016 Act].
4
2016 Act, § 3.
5
2016 Act, § 5.
6
Union of India vs Ganpati Dealcom Pvt Ltd., (2023) 3 SCC 315 [hereinafter Ganpati case].
7
Prohibition of Benami Property Transactions Act, 1988, No. 45, Acts of Parliament, 1988 (India) [hereinafter
1988 Act].
8
1988 Act, § 2, cl. a.
9
2016 Act, § 3, cl. 2.
10
INDIA CONST. art. 20, cl. 1.
11
2016 Act, § 3, cl. 1.
12
2016 Act, § 3, cl. 3.

1
 Memorial for PETITIONER

4. It was held that Section 5 of the 1988 Act13 which stated that a property held benami was
liable for acquisition without compensation was manifestly arbitrary since it was a half-
baked provision which left gaps for excessive delegation. The presence of such
substantive gaps made this provision fanciful and oppressive. Hence, the court declared it
to be unconstitutional. Furthermore, it was held that confiscation under Section 5 and
confiscatory proceedings under Chapter IV of the 2016 Act were punitive and not civil in
nature and hence cannot be applied retrospectively as it would amount to a violation of
Art. 20(1) of the Indian Constitution.
5. Through the 2016 Act, the law could not be applied retrospectively for confiscation of
those transactions entered between 05.09.1988 to 3.10.2016 as the same would amount to
punitive punishment, in the absence of any other form of punishment since punishment
prescribed in Section 5 of the 1988 Act was held unconstitutional14.
6. It is humbly submitted that in the present case, Ted Co Pvt. Ltd. purchased property worth
8,21,00,000/- from various sellers on 26th November 2015. Thereafter, M/s Starks
Properties Pvt Ltd and M/s Kats Pvt Ltd purchased 99.99% shares of Ted Co Pvt Ltd. on
31st May 2016.15 Arguendo, since both these transactions took place before the date of
commencement of the 2016 act i.e., 1st November 2016, they escape the prohibition and
punishment as prescribed in Sections 3 and 5 of the 2016 Act16.
7. Therefore, the humble submission of the COUNSEL for the PETITIONERS that the impugned
transactions and confiscation cannot be governed under Sections 3 and 5 of the 2016 Act
as it does not apply retrospectively.

1.2 2016 Act has substantially changed the scope of the Offence.
8. It is the humble submission of the COUNSEL for the PETITIONERS that the 2016 Act has
substantially changed the scope of the offence since substantive changes had been made
in the definitions of “Benami Transaction” and “Property” due to which retrospective
application of the 2016 Act is not applicable.
9. It is humbly submitted that in the 1988 Act “benami transaction” was defined as, “any
transaction in which property is transferred to one person for a consideration paid or

13
1988 Act, supra note 7, § 5.
14
J.K. VERMA, BENAMI PROPERTY: A COMMENTARY 114 (1st ed. 2018).
15
MOOT PROP, ¶ 3.
16
2016 Act, supra note 3, § 3,5.

2
 Memorial for PETITIONER

provided by another person.”17 However, in the 2016 Act under section 2(9)18 the
definition was expanded to:
(A) a transaction or an arrangement—
(a) where a property is transferred to, or is held by, a person, and the consideration for
such property has been provided, or paid by, another person; and
(b) the property is held for the immediate or future benefit, direct or indirect, of the
person who has provided the consideration
(B) a transaction or an arrangement in respect of a property carried out or made in a
fictitious name; or
(C) a transaction or an arrangement in respect of a property where the owner of the
property is not aware of, or, denies knowledge of, such ownership;
(D) a transaction or an arrangement in respect of a property where the person providing
the consideration is not traceable or is fictitious
10. Hence, while the Benami Transaction in the 1988 Act are defined only in terms of the
source of consideration, the definition as mentioned in the 2016 Act adds that the
consideration should be for the benefit of the person providing the consideration, along
with bringing into its ambit transactions carried out in fictitious name, transactions about
which the owner is not aware as well as the transactions where the person providing the
consideration is not traceable or is fictitious. Thus, widening its scope and increasing the
ambit of transactions that can be charged for the offence.
11. Further, in the 1988 Act the term “property” was defined as, “property of any kind,
whether movable or immovable, tangible or intangible, and includes any right or interest
in such property.19” However, in 2016 Act “property” under section 2(26) 20 has been
defined as “assets of any kind, whether movable or immovable, tangible or intangible,
corporeal or incorporeal and includes any right or interest or legal documents or
instruments evidencing title to or interest in the property and where the property is
capable of conversion into some other form, then the property in the converted form and
also includes the proceeds from the property.” Hence the definition in the 2016 Act not
only adds corporeal, incorporeal, and legal documents evidencing title or interest in the

17
1988 Act, supra note 7, § 2, cl. a.
18
2016 Act, supra note 3, § 2, cl. 9.
19
1988 Act, supra note 7, § 2, cl. c.
20
2016 Act, supra note 3, § 2, cl. 26.

3
 Memorial for PETITIONER

property but also proceeds from the property, thus expanding its scope and altering it
substantially.
12. It is humbly submitted that in Hitendra Vishnu Thakur v. State of Maharashtra, the
Hon’ble Supreme Court held that a statute which is substantive in nature and creates new
rights and liabilities is presumed to be prospective in operation unless made retrospective,
either expressly or by necessary intendment. 21 In the present case, since the definitions of
“Benami transactions” and “Property” as expounded in the 2016 Act have created new
rights and liabilities and are substantive in nature, therefore, they can only be applied
prospectively, unless made retrospective either expressly or by necessary intendment.
13. In Sakshi v. Union of India, a similar stance was taken by the Hon’ble Supreme Court in
which the court refused to give an enlarged meaning to the word “rape” in section 375
IPC on the ground that such an interpretation may violate Art. 20(1) by substantially
changing the scope of the definition.22
14. Further in C Gupta v. Glaxco-Smithkline Pharmaceuticals Limited, Hon’ble court refused
to read an expanded definition of “workman” in the Industrial Dispute Act, 1947 as it
would be violative of Art. 20(1) of the Indian Constitution.23
15. In Joseph Isharat v. Rozy Nishikant Gaikwad, Bombay High Court held that 2016 Act
shall apply prospectively and not retrospectively as there were substantial changes made
under the 2016 Act and further held that if there is matter of substantive rights, then prima
facie it will only have a prospective application unless the amended law speaks in a
language.24 Similarly in R. Rajagopal Reddy v. Padmini Chandrasekharan 25, Binapani
Paul v. Pratima Ghosh26, Niharika Jain v. Union of India27 various High Court had held
that the 2016 Act introduced by the legislature affect substantive rights of the parties and
must be applied prospectively.
16. Hence, it is the humble submission of the COUNSEL for the PETITIONERS that since there
is a substantive change in the definitions of “Benami Transaction” and “Property” under
the 2016 Act, retrospective application of the same does not apply.

21
Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602.
22
Sakshi v. UOI, (2004) 5 SCC 518.
23
C Gupta v. Glaxo Smith Kline Pharmaceuticals Limited, JT 2007 (8) SC 480
24
Joseph Isharat v. Rozy Nishikant Gaikwad, 2017 SCC OnLine Bom 10199.
25
R. Rajagopal Reddy v. Padmini Chandrasekharan, (1995) 2 SCC 630.
26
Binapani Paul v. Pratima Ghosh, (2007) 6 SCC 100.
27
Niharika Jain v. Union of India, 2019 SCC OnLine Raj 1640.

4
 Memorial for PETITIONER

1.3. Central Government waived its Right of Implementation of the 1988 Act prior to
01.11.16.
17. It is the humble submission of the COUNSEL for the PETITIONERS that the central Govt
waived its right of implementation and operationalization of the Act of the 1988 Act prior
to 01.11.16.
18. The 1988 Act, which came into force on 19.05.1988 (except Section 3, 5 and 8 thereof
which came into force on 05.09.1988), provided for the punishment of persons entering a
“benami transaction”, which was made non cognizable and bailable. It also provided for
the acquisition of property held to be Benami under Section 5 28. However, provisions of
the 1988 Act, were never operationalized since the rules and procedure required to be
framed under Section 8 of the 1988 Act29, bringing into existence the machinery for
implementation of the 1988 Act, were never notified.
19. Therefore, it is humbly submitted that, although the 1988 Act was a part of the statute
book, the same was rendered a “dead letter”, and all transactions and properties alleged
‘benami’, carried out and acquired between the period of 19.05.1988 and 01.11.2016,
were deemed to have been accepted by the Government as valid ‘vesting rights’ to the
parties who were alleged of such transactions.
20. The doctrine of colourable legislation which is derived from the Latin maxim quando
aliquid prohibetur ex directo, prohibetur et per obliquum means what cannot be done
directly, should also not be done indirectly. Therefore, it is humbly submitted that the
Central Government, having waived its right of implementation and operationalisation of
the 1988 Act for the period prior to 01.11.2016, cannot now do so indirectly by way of
retrospective operation of the 2016 Amendment.
21. Hence, by taking consideration of all the arguments stated above hon’ble SC in Ganpati
case30held that 2016 Act can only be applied prospectively and not retrospectively and
The 2016 Act was not merely procedural, rather, prescribed substantive provisions
therefore violating Art. 20(1) of The Indian Constitution.
22. Hence the COUNSEL for the PETITIONERS humbly submits that the 2016 Act cannot be
applied retrospectively and thus the provisional attachment order is non est in law.

28
1988 Act, supra note 7, § 5.
29
1988 Act, supra note 7, § 8.
30
Ganpati case, supra note 6.

5
 Memorial for PETITIONER

1.4. That the Ancestral Property cannot be attached as “proceeds of crime”

23. It is the humble submission of the COUNSEL for the PETITIONERS that the ED moved for
the attachment of property of Ted Co Pvt Ltd. as well as the ancestral property of Janice
and Mr Sukh. They were also charged under sections 406 and 420 IPC read with Section
3 of PMLA, 2002. However, the adjudicating authority, vide order dated 18.12.2021
while confirming the provisional attachment of the properties Adjudicating Authority
barred their ancestral property from being attached. In response, ED challenged the same
in the High Court, asserting that ancestral property also constitutes proceeds of crime in
this case.31 However, it is humbly submitted that the ancestral property of Mr Sukh and
Ms Janice cannot be attached as proceeds of crime.
24. It is respectfully averred that the definition of proceeds of crime as given under Section 2
(u) of the PMLA, 2002 reads, “any property derived or obtained, directly or indirectly,
by any person as a result of criminal activity relating to a scheduled offence or the value
of any such property or where such property is taken or held outside the country, then the
property equivalent in value held within the country or abroad” 32. In other words,
proceeds of crime refer to those properties which have been obtained as a result of
criminal activity related to those mentioned as a scheduled offence in the PMLA.
25. However, the term ancestral property is defined as, “property inherited by a Hindu from
his father, father’s father, or father’s father’s father.33
26. It is humbly submitted that ancestral property is endowed on an individual from his birth,
and cannot be a result of any criminal activity. In Seema Garg v. the Deputy Director,
Directorate of Enforcement it was held that a property purchased prior to the commission
of a scheduled offence leaving aside the date of enactment of PMLA, does not fall within
the ambit of definition of ‘proceeds of crime’ as this would lead to total chaos and
uncertainty. It would give unbridled powers to the authority to implicate any person even
though he has no direct or indirect connection with the scheduled offence. 34 Similarly, in
the present case, the ancestral property of Mr Sukh and Ms Janice was purchased prior to
the commission of any alleged scheduled offence and hence, cannot fall within the
definition of proceeds of crime.

31
MOOT PROP, ¶ 6.
32
The Prevention of Money Laundering Act, 2002, § 2, cl. u, No. 15, Acts of Parliament, 2003 (India)
[hereinafter PMLA].
33
MULLA, HINDU LAW, (24th ed. 2021).
34
Seema Garg v. Deputy Director, 2020 SCC OnLine P&H 738.

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 Memorial for PETITIONER

27. Hence, it is respectfully averred that the ancestral property of Ms Janice and Mr Sukh
cannot come under the definition of proceeds of crime, despite the charges against them.
Therefore, the adjudicating authority was right in barring the attachment of ancestral
property vide order dated 18.12.21 and ED’s attempt to attach such property is a violation
of the law.
28. Hence, the COUNSEL for the PETITIONERS humbly submits that since an ancestral property
cannot be obtained or derived as a result of criminal activity, the same cannot be attached
as a proceed of crime as it does not come under its definition.
2. THAT THE RECORDING DEVICE CANNOT BE SEIZED BY THE INVESTIGATING AGENCY
AND SUBSEQUENTLY, IS INADMISSIBLE IN LAW.

29. It is the submission of the COUNSEL for the PETITIONERS that the ED had got the order to
seize necessary material and documents for the purpose of investigation. Therefore, it is
humbly submitted that the recording device i.e., Calc cannot be seized by the
investigating agency because (2.1), There is no case of PMLA. Furthermore, Calc would
not be admissible in law because firstly (2.2), the admissibility of the recording device
would be violative of Art. 20(3) of the Constitution of India and secondly (2.3),
admissibility of the recording device is violative of Section 131 of the Indian Evidence
Act, 187235.

2.1. There is no case of PMLA.

30. It is the submission of the COUNSEL for the PETITIONERS that in the present case, the ED
had applied to the Court for the seizure of the recording device i.e., Calc. The recording
device had recorded a private conversation between Mr Sukh and Ms Janice. The ED has
applied for its production in order to retrieve the same recording to prove the charges
against them.36 It is humbly submitted that the ED is not authorised to do the same since
there is no case of PMLA.
31. It is humbly submitted that section 3 of the PMLA reads that whosoever directly or
indirectly attempts to indulge or knowingly assists or knowingly is a party or is involved
in any process or activity connected with the proceeds of crime including its concealment,
possession, acquisition or use and projecting or claiming it as untainted property shall be
guilty of the offence of money-laundering.37

35
The Indian Evidence Act, 1872, § 131, No. 01, Acts of Parliament, 1872(India) [hereinafter Evidence Act].
36
MOOT PROP, ¶ 12.
37
PMLA, supra note 31, § 3.

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 Memorial for PETITIONER

32. It is humbly laid down before the Hon’ble Court that in order to charge an individual with
the offence of money laundering, it must be proved that he/she must relate to the
‘proceeds of crime.’ It is humbly submitted that proceed of crime as given under section
2(u) of the PMLA, 2002 means, any property derived or obtained, directly or indirectly,
by any person as a result of criminal activity relating to a scheduled offence or the value
of any such property or where such property is taken or held outside the country, then the
property equivalent in value held within the country or abroad.38
33. It is humbly submitted that in the present case, ED had attached the ancestral property of
Mr Sukh and Ms Janice as proceeds of crime. However, the term ancestral property is
defined as, “property inherited by a Hindu from his father, father’s father, or father’s
father’s father.39
34. It is humbly submitted that in Seema Garg v. the Deputy Director, Directorate of
Enforcement it was held that a property purchased prior to the commission of a scheduled
offence leaving aside the date of enactment of PMLA, does not fall within the ambit of
definition of ‘proceeds of crime’ as this would lead to total chaos and uncertainty. It
would give unbridled powers to the authority to implicate any person even though he has
no direct or indirect connection with the scheduled offence.40
35. Therefore, it is submitted, that in the present case, the ancestral properties of Mr Sukh and
Ms Janice were purchased prior to the date that they were charged with Section 3 of
PMLA.41 Hence, the ancestral properties of either of them cannot be construed as proceed
of crime in the present case.
36. It is humbly submitted that the essential of proceeds of crime to hold an individual liable
under PMLA has not been fulfilled in the present case, since the proceeds of crime cannot
encompass ancestral properties.42
37. Therefore, considering the, Mr Sukh and Ms Janice cannot be held liable for committing
the offence of money laundering. The same disrupts the very reason that the ED had
applied to the Court for the seizure of the recording device. Since there is no case of
money laundering in the present case, hence, there is no case of PMLA.

38
PMLA, supra note 31, § 2, cl. u.
39
supra note 32.
40
supra note 33.
41
PMLA, supra note 31, § 3.
42
Manu Sharma & Wadhwas, Guide to the PMLA & Proceeds of Crime 328 (1st ed. 2022).

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 Memorial for PETITIONER

2.2. Admissibility of the recording device would be violative of Art. 20(3) of the
Constitution of India
38. It is humbly submitted before this Hon’ble Court that the ED wanted to retrieve the
recording between Mr Sukh and Ms Janice where they had discussed each other’s
financial misleading and improprieties. However, it is submitted that the same recording
device would not be admissible in the Court of law as it would be violative of Mr Sukh’s
right against self-incrimination.
39. In MP Sharma v. Satish Chandra [hereinafter Sharma v. Satish], it was held that in order
to claim protection under Art.20(3)43, three basic factors need to exist. These are, firstly,
the person must be accused of an offence, secondly, he should not be compelled to be a
witness against himself and thirdly, he should not be compelled to give evidence against
himself.44
40. It is submitted that ED had already framed charges against Mr Sukh under Sections 406 45
and 420 of the IPC46 read with Section 3 of PMLA47. In Amin v. State, it was held that an
accused person refers to an accusation made in a criminal prosecution where an
individual is charged with offences punishable under the IPC. 48 In the present case as
well, since the ED had charged Mr Sukh with offences punishable under the IPC, he
comes under the definition of an accused person.
41. It is humbly submitted that Sharma v. Satish held that a person can “be a witness” not
merely by giving oral evidence but also by producing documents. 49 Section 65B of the
Evidence Act states that any information in an electronic record shall be deemed a
document.50 It is submitted that the recording device i.e., Calc is also an electronic record,
and therefore it constitutes a document. As laid down in Sharma v. Satish the production
of documents also amounts to being a witness against oneself, therefore, it is humbly
submitted that in the case at hand, Mr Sukh would become a witness against himself on
the admission of such an electronic device.
42. Moreover, it is humbly submitted that it was held in Nandini Satpathy v. P.L Dani, that if
any evidence given would have an incriminating impact, the same would be violative of

43
INDIA CONST. art. 20, cl. 3.
44
MP Sharma v. Satish Chandra, AIR 1954 SC 300: 1954 SCR 1077 [hereinafter Sharma v. Satish].
45
The Indian Penal Code, 1860, § 406, No. 45, Acts of Parliament, 1860 (India) [hereinafter IPC].
46
IPC, § 420.
47
PMLA, supra note 31, § 3.
48
Amin And Anr. vs The State, AIR 1958 All 293.
49
Id at 41.
50
Evidence Act, supra note 34, § 65, cl. B.

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 Memorial for PETITIONER

the right against self-incrimination.51 It is humbly submitted that the recording device has
evidence against Mr Sukh, that could be used in the Court of Law to prove charges
against himself. Mr Sukh is also conscious of the same since he was reminded by the
display screen of Calc that the device would have recorded their entire conversation.
Since furnishing the recording device would be disadvantageous for Mr Sukh as it would
prove to be self-incriminatory in nature, therefore, the same cannot be admissible as
evidence in the Court of Law.
43. Therefore, it is humbly submitted that the recording device would be inadmissible in the
Court of law as it fulfils the three conditions required to prove that the admissibility of
Calc would be violative of Mr Sukh’s right against self-incrimination provided in section
20(3) of the Constitution of India.

2.3. Admissibility of the recording device is violative of Section 131 of the Indian
Evidence Act, 1872.

44. It is humbly submitted before the Hon’ble Court the recording device i.e., Calc had a
feature that could record conversations if it was consented to by the user. At the New
Year party, where Mr Sukh and Ms Janice had inaugurated the said device, they both got
into a heated argument and discussed each other’s financial misleading. The Calc device
in the meanwhile had recorded the entire conversation between Mr Sukh and Ms Janice.
The ED wanted to retrieve this original recording from the Calc device and moved to the
Court to produce the same, which was present at Mr Sukh’s house.52
45. It is humbly submitted that the said conversation in the Calc device was not recorded with
the consent of Ms Janice and it goes against the very policy of the Calc device. Ms
Janice’s non-consent to be recorded is evident from the fact that she moved to the
Supreme Court for her non-consensual recording to be declared inadmissible.
46. It is humbly submitted that Section 65 of the Evidence Act reads that “no one shall be
compelled to produce documents in his possession or electronic records under his control,
which any other person would be entitled to refuse to produce if they were in his
possession or control, unless such last-mentioned person consents to their production.”53
47. Taking Section 131 into cognizance, it is humbly submitted that in the present case, Mr
Sukh could not be compelled to produce the Calc device which was at his home because
Ms Janice, who had also been recorded in the device, had not consented to its production

51
Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424 [hereinafter Nandini Satpathy Case].
52
MOOT PROPOSITION, ¶ 12.
53
Evidence Act, supra note 34.

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 Memorial for PETITIONER

as evidence. Since the device had recorded her as well, she would be entitled to refuse its
production had she been in its possession. Ms Janice’s unwillingness to produce the same
can be inferred from her petition to the Supreme Court.
48. In Suraj Pal v. M/o Communication & IT, it was held that “sharing of the Appellant's call
details by the MTNL with the Law Enforcement Agency without seeking
consent/approval of either the Competent Authority or even the Appellant was clearly
unlawful being a violation of Section 131 of the Indian Evidence Act, 1872.”54
49. Therefore, the COUNSEL for the PETITIONERS humbly submits that in the present case as
well, the recording device becomes inadmissible as evidence in the Court of Law as the
same was never recorded with Ms Janice’s consent and it is contrary to the provision
mentioned in Section 131 of the Indian Evidence Act.

1. WHETHER THE ED CAN UTILISE THE FINGERPRINTS TAKEN UNDER THE CRIMINAL
PROCEDURE (IDENTIFICATION) ACT, 2022 TO UNLOCK THE MOBILE PHONE WITHOUT
TAKING THE CONSENT OF MR SUKH?
50. It is humbly submitted before this Hon’ble Court that ED cannot utilise the fingerprints
taken under the Criminal Procedure (Identification) Act, 2022 [hereinafter ‘the CPI Act,
2022’] to unlock the mobile phone without taking the consent of Mr Sukh because firstly
(3.1), Enforcement Directorate has no authority under the CPI Act, secondly (3.2), it is
violative of Mr Sukh’s right against Self-Incrimination under Art. 20(3) of the
Constitution of India55 and thirdly (3.3), it is violative of Mr Sukh’s Right to Privacy.

3.1. Enforcement Directorate has no authority under the CPI Act.

51. It is humbly submitted before this Hon’ble Court that in the present case, the ED has no
authority to utilize Mr Sukh’s fingerprints under the CPI Act, 2022. “Finger impressions”
come under the ambit of the definition of measurement under Section 2(1)(b) of the CPI
Act, 2022.56
52. Section 3(c) of the Act states that “any person, who has been arrested in connection with
an offence punishable under any law for the time being in force, shall, if so required,
allow his measurements to be taken by a police officer or a prison officer in such manner
as may be prescribed by the Central Government or the State Government”. 57 In addition

54
Evidence Act, supra note 34, § 65, cl. B.
55
INDIA CONST. art. 20, cl. 3.
56
The Criminal Procedure (Identification) Act, 2022, §2, No. 11, Acts of Parliament, 2022(India).
57
The Criminal Procedure (Identification) Act, 2022, §3, No. 11, Acts of Parliament, 2022(India).

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 Memorial for PETITIONER

to this, only a Magistrate under Section 5 of the CPI Act 58, can direct a person to give
their measurements.
53. It is humbly submitted that in the case of The State of Punjab v. Barkat Ram, it was held
that the word “police” in common parlance means a civil force whose main aim is to
prevent and detect crimes and to maintain the law and order of the nation. 59 Furthermore,
in Raja Ram Jaiswal v. State of Bihar it had been concluded that when a person is vested
with the powers of investigation, he is said to be a police officer, as he prevents and
detects crime.60 It is humbly submitted that Section 19(b) of IPC reads that a Magistrate
exercising jurisdiction in respect of a charge on which he has the power to sentence to
fine or imprisonment, with or without appeal, is a Judge.61
54. The COUNSEL for the PETITIONERS humbly submits that in Barkat Ram, it was held that
“Customs Officer under the Land Customs Act is not a police officer within the meaning
of Section 25 of the Evidence Act as according to the preamble of The Police Act,
1861(Act V of 1861) it indicates that the police is the instrument for the prevention and
detection of crime which can be said to be the main object and purpose of having the
police. In that, the main object of the Customs Officer is to safeguard goods and customs
duty and detection and prevention of crime is an ancillary function”62. Similarly, in the
case of Badaku Joti Savan, the Constitution Bench of this Court held that a Central Excise
Officer exercising power under Central Excise and Salt Act, 1944 is not a police officer
as he does not possess the power to submit a charge sheet under Section 173 of the 1973
Code.63 Another Constitution Bench of this Court in Chandra Mehta concluded that a
Customs Officer under the Sea Customs Act, 1878 could not be coined as a police
officer.64
55. The COUNSEL for the PETITIONERS humbly submits that in the case of Directorate of
Enforcement v. Deepak Mahajan, the Apex Court stated that “no doubt, it is true that
there are a series of decisions holding the view that an Officer of Enforcement or a
Customs Officer is not a police officer.”65
56. Moreover, it was held in Vakamulla Chandrashekhar vs Enforcement Directorate that
“the authorities for the purposes of PMLA referred to and appointed under Sections 48
58
The Criminal Procedure (Identification) Act, 2022, §5, No. 11, Acts of Parliament, 2022(India).
59
The State of Punjab v. Barkat Ram, (1962) 3 SCR 338.
60
Raja Ram Jaiswal v. State of Bihar, (1964) 2 SCR 752.
61
The Indian Penal Code, 1860, §19, No. 45, Acts of Parliament, 1860(India).
62
Id at 59.
63
The Code Of Criminal Procedure, 1973, §17, No. 02, Acts of Parliament, 1974(India).
64
Ramesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940.
65
Directorate of Enforcement v. Deepak Mahajan, 1994 AIR 1775 1994 SCR.

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 Memorial for PETITIONER

and 49 of the said Act are not police officers”.66 The rationale given behind the same was
that Section 54(f) of PMLA states that officers of Police are empowered and required to
assist the authorities in the enforcement of the Act. It is submitted that if the authorities
under the Act, who are authorised to carry out an investigation under the Act, were
considered by the Parliament to be police officers, there was no need to empower and
oblige the officers of police to assist the authorities under the Act in the implementation
of the Act, therefore, it is apparent that the officials of ED are not police officers.
57. The COUNSEL for the PETITIONERS humbly submits that in Vijay Madanlal Choudhry &
Ors. v. Union of India & Ors. it was further concluded that the authorities under the
PMLA, 2002 Act are not Police Officers as a regular police officer is not competent to
take cognizance of the offence of money laundering, as it can be investigated only by the
authorities referred to in Section 48 of the 2002 Act and the provision inserted in 2005 as
Section 45(1A) is not to empower the regular police officers to take cognizance of the
offence. The Court upheld the constitutional validity of section 50 of the Act thereby
declaring that ED officers are not police.67
58. It is the submission of the COUNSEL for the PETITIONERS that after perusal of the sections
and rationale behind the cases mentioned above, it is to be noted that this Act does not
authorize anybody other than a police officer, prison officer and a Magistrate to take
measurements, finger-impressions in the case at hand, of an arrested person.

3.2. It is Violative of Mr Sukh’s Right Against Self- Incrimination under Art. 20(3) of
the Constitution of India.
59. It is humbly submitted that the utilization of Mr Sukh’s fingerprints by ED is a violation
of his right against self – incrimination under Art. 20(3) of the Constitution of India 68. It
provides a right against self-incrimination to an accused in a criminal case. Through this
fundamental right, an accused is protected from giving any self-incriminatory testimony
to the police, on being compelled to do so. The Art. makes the compelled testimony 69
inadmissible in court under Section 24 of the Indian Evidence Act70.
60. The right against self-incrimination can be traced back to the medieval law of the Roman
church, as expressed in the Latin maxim "Nemo tenetur seipsum accusare," which means
"No man is obliged to accuse himself." This right developed over time in common law, as
66
Directorate of Enforcement v. Vakamulla Chandrashekhar, 2018 SCC OnLine SC 3800.
67
Vijay Madanlal Choudhary v. Union of India, 2021 SCC OnLine SC 1048.
68
INDIA CONST. art. 20, cl. 3.
69
Ram Jethmalani & D.S. Chopra, The law of Evidence: Commentary on Evidence Act,1872 253 (1st ed. 2013).
70
The Indian Evidence Act,1872, §24, No. 01, Acts of Parliament, 1872(India).

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 Memorial for PETITIONER

a response to the inquisitorial and unjust methods of interrogating accused individuals,

which were prevalent in England during the Middle Ages.71
61. The Supreme Court in Sharma v. Satish gave the broad import to Art. 20(3) as it was held
to cover not only oral testimony or statements in writing of the accused but also the
production of a thing or of evidence by other modes.72 V.R Krishna Iyer stated in the case
of Nandini Satpathy case that “Art. 20(3) is a human Art., a guarantee of dignity
and integrity and of inviolability of the person refuses to convert an adversary system into
an inquisitorial scheme in the antagonistic ante-chamber of a police station”73.
62. It is humbly submitted that all three essentials that must be proved to claim protection
under Art.20(3) are determined in the case of Sharma v. Satish are fulfilled. These
essentials are firstly (3.2.1), it is a right available to the person accused of an offence,
secondly (3.2.2), it is a protection against compulsion to be a witness, thirdly (3.2.3), it is
a protection against such compulsion resulting in his giving evidence against himself.74

3.2.1. It is a right available to the person accused of an offence.

63. It is humbly submitted that in the case of Sharma v. Satish, it was held that a person
accused of any offence means a person against whom a formal accusation has been
filed.75 A formal accusation was admitted to be in the form of a First Information Report.
However, in the case of Ramesh Chandra Mehta, it was held that it is not necessary that a
formal accusation is made against the person in the form of
FIR/ECIR/chargesheet/complaint to invoke protection under Art. 20(3) of the
Constitution and that protection is available even to a suspect at the time of
interrogation.76
64. It is humbly submitted that the ED had framed charges under Section 406 and 420 read
with Section 3 of the PMLA against Mr Sukh and Ms Janice and had subsequently
arrested them both on the same grounds. 77 It is humbly submitted that the term “accused
of any offence” refers to an accusation made in a criminal prosecution against an
individual charged with having done any act which is punishable under IPC or any special
or local law before the court or a judicial tribunal.78 Mr Sukh’s arrest made by the ED

71
Brown v. Walker 40 L Ed 819.
72
Sharma v. Satish, 2016 SCC Online HP 3517.
73
supra note 51.
74
Id at 71.
75
Id at 71.
76
Ramesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940.
77
MOOT PROP, ¶ 6.
78
Amin And Anr. vs The State, AIR 1958 All 293.

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 Memorial for PETITIONER

made him an accused person. Therefore, the first essential to claim the right under Art.
20(3) has been fulfilled in the present case.

3.2.2. It is a protection against the compulsion to be a witness.

65. It is humbly submitted that a witness is a person who furnishes evidence and such
evidence can be furnished through the lips or by the production of a thing or of a
document or in other modes. In Nandini Satpathy, Iyer J advocated an expensive
interpretation of the phrase compelled testimony according to him it is evidence procured
"not nearly by physical threats or violence but also buy psychic torture, atmospheric
pressure, environmental coercion, tiring interrogative prolixity, overbearing and
intermediary method and the like any mode of pressure "subtle or crude, mental or
physical, direct or indirect but sufficiently substantial applied by the police to obtain
information from an accused strongly suggestive of guilt becomes a compulsion.79
66. It is humbly submitted that by seizing the fingerprints of Mr Sukh in order to unlock his
mobile phone which contains the recording between him and Ms Janice, Mr Sukh is being
compelled to be a witness against himself because by doing so, he is furnishing evidence
to the ED. Mr Sukh’s unwillingness to provide the ED with his fingerprints is evident
from the fact that when the ED seized his phone and summoned him to provide his
passcode or fingerprint for unlocking his phone, Mr Sukh denied the same and moved to
the Supreme Court of Kesi. 80 However, after ED had arbitrarily assumed the powers of
the Police Officer without any authorization to do so under the CPI Act, ED arrested Mr
Sukh and used his fingerprints to unlock his phone. There is a clear violation of his right
not to be a witness against himself and therefore, it satisfies the second condition to claim
protection under Art. 20(3).

3.2.3. It is a protection against such compulsion resulting in his giving evidence against
himself.
67. It is humbly submitted that in Nandini Satpathy v. P.L Dani, it was held that “any giving
of evidence, any furnishing of information, if likely to have an incriminating impact,
answers the description of being a witness against oneself.”81 As stated in Selvi v. State of
Karnataka, “Art. 20(3) aims to prevent the forcible “conveyance of personal knowledge
that is relevant to the facts in issue”.82

79
supra note 51.
80
MOOT PROP, ¶ 13.
81
supra note 51.
82
Selvi v. State of Karnataka, (2010) 7 SCC 263.

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 Memorial for PETITIONER

68. It is humbly submitted that in the present case, the seizure of Mr Sukh’s fingerprints by
the ED in order to unlock his mobile phone would call for protection under Art. 20(3)
because fingerprints in this instance serve as a “link in the chain of evidence” 83. The ED
obtained Mr Sukh’s fingerprints in order to retrieve the recorded conversation between
Mr Sukh and Ms Janice, which would serve as evidence against them in the Court of law.
Justice Jagannadhadas had stated that ‘the right against self-incrimination would extend
to any compelled production of evidentiary documents which are ‘reasonably’ likely to
support a prosecution against the accused.84 Therefore, it is humbly submitted that the
seizure of Mr Sukh’s fingerprints satisfies the third essential to claim the right under Art.
20(3).
69. It is humbly submitted that even though it was held in the case of Kathi Kalu Oghad v.
State of Bombay that the investigative authority is allowed to take physical evidence
(including fingerprints, handwriting samples, hair strands etc.) from the accused, which
does not come from the volition of the accused, for the purpose of identification and
corroboration of evidence.85 It is pertinent to note the aforementioned judgment allows the
police to take biometrics, only for the purpose of investigation and corroboration of the
evidence that is already within its possession and they are not legally permitted to take the
fingerprints of an accused person.
70. It is submitted that in the present case, the fingerprints taken by the ED are neither to
investigate nor to corroborate any evidence but to retrieve the evidence of the recording
between Mr Sukh and Ms Janice. This was done in order to prove the charges framed
against them.
71. Therefore, considering the above-stated arguments, the COUNSEL for the PETITIONERS
humbly submits that in the present case, the ED has violated Mr Sukh’s fundamental right
under Art 20(3) of the Constitution of India.

3.3. It is violative of Mr Sukh’s Right to Privacy.

72. The COUNSEL for the PETITIONERS humbly submits that the utilization of Mr Sukh’s
fingerprints in order to unlock his phone violates Mr Sukh’s fundamental Right to Privacy
guaranteed under Part III of the Constitution of India.
73. It is humbly submitted before the Court that in the case of Gobind v. State of M.P. 86, the
Supreme Court recognized the Right to Privacy as a part of an individual's right to life
83
Id.
84
M.P. Sharma v. Satish Chandra, 1954 SCR 1077.
85
State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10.
86
Gobind v. State of M.P., (1975) 2 SCC 148.

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 Memorial for PETITIONER

and personal liberty. It was asserted that the Constitution guaranteed the rights and
freedoms of citizens, ensuring that the individual and their fundamental characteristics
should be free from infringement by other individuals or the state. 87 The American
Constitution guarantees the Right to Privacy under the Fourth Amendment, this
amendment prohibits searches and seizures that are unreasonable and requires warrants to
be supported by probable cause and approved by a judge.
74. It is humbly submitted that K.S Puttaswamy v. Union of India laid down three
requirements which apply to all restraints on privacy. It must be noted that all three
requirements need to be fulfilled in order to justify a violation of the Right to Privacy and
the failure to meet one or more requirements leads to unjustifiable breach of privacy.
These requirements include: (i) there must be a law in existence to justify an
encroachment on privacy is an express requirement of Art. 21, (ii) the requirement of a
need, in terms of a legitimate state aim, ensures that the nature and content of the law
which imposes the restriction falls within the zone of reasonableness mandated by Art.
14, which is a guarantee against arbitrary state action and (iii) the means which are
adopted by the legislature are proportional to the object and needs sought to be fulfilled
by the law.88
75. Additionally, the Hon’ble Court also described the various categories/facets of 'individual
privacy under which the Informational Privacy of an individual was also determined
“which reflects an interest in preventing information about the self from being
disseminated and controlling the extent of access to information.”
76. It is humbly submitted that while there exists a law to justify the encroachment of privacy
and the nature and content of the law falls within the zone of reasonableness, it is
imperative to note that the means adopted to encroach on privacy are disproportionate in
nature and therefore, violation Mr Sukh’s fundamental Right of Privacy is not justified.
77. It is humbly submitted that the ED only wanted the recording between Mr Sukh and Ms
Janice, to prove the charges against them. In order to do the same, ED took Mr Sukh’s
fingerprints under the CPI Act and unlocked his mobile phone. It is submitted that this
has led to the intrusion by the ED into Mr Sukh’s mobile phone. The triple test
determined in Maneka Gandhi v. Union of India of the Right to Privacy 89 fails here
because, by intrusion into Mr Sukh’s phone, the ED has access to unlimited data present
in it too.
87
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
88
supra note 86.
89
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

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78. It is humbly submitted that if the ED is permitted to access the data of the mobile phone
of the accused, it may interfere with his Right to Privacy since the said mobile phone may
contain some private data relating to his personal life, financial transactions, his business
and various other secret/confidential information or password which are stored in the said
system and it is alleged that with the help of such information, further data/information of
the accused can be accessed, misused and made public by the agency. This means that
they can be a valuable source of evidence about a person. Not only is it self-incriminatory
but it also breaches the privacy of an individual. In the case at hand as well, ED’s
encroachment on Mr Sukh’s Right to Privacy is disproportionate in nature as its quest for
retrieving the recording between Mr Sukh and Ms Janice has led to a greater intrusion on
Mr Sukh’s Right to Privacy by giving the ED complete access to the entire data present in
Mr Sukh’s phone.
79. In People's Union for Civil Liberties v. Union of India, the question of the intimate and
confidential nature of communications was brought under the scanner, and the Right to
Privacy was upheld.90 The security of one's privacy against arbitrary intrusion by the
police is basic to a free society.91
80. Therefore, it is the submission of the COUNSEL for the PETITIONERS that in the present
case, the mean adopted by ED to retrieve the recording between Mr Sukh and Ms Janice
is disproportionate. The same does not satisfy the third requirement laid down in K.S
Puttaswamy and therefore, ED has violated Mr Sukh’s Right to Privacy secured under
Art. 21 in Part III of the Constitution of India.

4. JANICE HAS THE RIGHT TO PRIVACY AGAINST BEING RECORDED IN A NON-

CONSENSUAL RECORDING DEVICE.

81. It is the humble submission of the COUNSEL for the PETITIONERS that Janice had a Right
to Privacy against being recorded by a non-consensual recording device because firstly
(4.1), the non-consensual recording does not fulfil the requirements of restraint on the
Right to Privacy under Art. 21 and 19 of the Indian Constitution, secondly (4.2), Janice
had a reasonable expectation of privacy against being recorded by the non-consensual
recording device and thirdly (4.3), the recording does not fulfil any condition mentioned
under Art. 6(1) of GDPR.

90
People's Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301.
91
Wolf v. Colorado, 338 U.S. 25 (1949).

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 Memorial for PETITIONER

4.1. The non-consensual recording does not fulfil the requirements of restraint on the
Right to Privacy under Art. 21 and 19 of the Indian Constitution.
82. It is the humble submission of the COUNSEL for the PETITIONERS that the non-consensual
recording does not fulfil the requirements of restraint on the Right to Privacy given under
Art. 2192 and Art. 1993 of the Indian Constitution.
83. It is humbly submitted that Privacy is a fundamental human right and is central to the
maintenance of democratic societies. It is essential to human dignity and it reinforces
other rights, such as freedom of expression and information, and freedom of association,
and is recognised under international human rights law.94 Similarly in K.S. Puttaswamy v.
Union of India, Justice Chandrachud, affirming the earlier judgements, held that privacy
is a constitutionally protected right which emerges primarily from the guarantee of the
right to life and liberty in Art. 21 of the constitution, thus expanding the scope of Art. 21
as done in various cases previously.95 Further, in R.M. Malkani v. State of Bombay it was
held that tapping phone lines or recording calls without consent is a breach of privacy,
Art. 21 of the Constitution demands that phone calls be not recorded.96
84. Elements of privacy also arise in varying contexts from the other facets of freedom and
dignity recognised and guaranteed by the fundamental rights contained in Part III. Justice
Sanjay Kaul held that since the Right to Privacy is embedded in the entire Part III and not
just Art. 21, any restriction on Right to Privacy must fulfil the requirements of Art. 21,
along with the requirements of the fundamental right to which it relates.
85. It is humbly submitted that any restraint on Right to Privacy with respect to Art. 21 must
fulfil the following requirements given under the triple test of personal liberty as
prescribed in Maneka Gandhi v. Union of India 97 and adapted to the Right to Privacy in
K.S. Puttaswamy: firstly, there should be a law in existence to justify an encroachment on
the Right to Privacy, secondly, there should be a legitimate state aim behind the law and
thirdly the nature and quality of restriction on the fundamental right should not be
disproportionate to the purpose of the law.
86. The first requirement is that we need a law, for no person can be deprived of his life and
personal liberty except in accordance with the procedure established by law. Since

92
INDIAN CONST. art. 21.
93
INDIAN CONST. art. 19
94
G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948); G.A. Res. 2200A (XXI);
International Covenant on Civil and Political Rights (Dec.16, 1996).
95
supra note 85.
96
R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471
97
supra note 89.

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 Memorial for PETITIONER

conversation recording is a form of surveillance, we need a surveillance law that

establishes the rules and procedures regarding recording a conversation by a private
entity. However, in India, there are limited laws regarding surveillance. The only two
surveillance laws of the country are the Indian Telegraph Act of 1885 98 which deals with

the interception of calls and the Information Technology Act, of 200099 which deals
with the surveillance of all electronic communication. Both these laws give the power
and procedure of surveillance to the Government and not to private entities. However, in
the present case, Janice was recorded by a non-consensual recording device called Calc
which is a private entity. Therefore, in the absence of any law on the issue of non-
consensual recording done by private entities in India, we can say that the triple test of
personal liberty fails at its inception. And that restraint on Janice’s privacy is
unjustified.
87. Further Justice Bobde held that the Right to Privacy is a travelling right which constitutes
the springboard for the exercise of the freedom guaranteed by Art. 19(1). Freedom of
speech and expression is always dependent upon the capacity to think, read and write and
is often exercised in a state of privacy, to the exclusion of those not intended to be spoken
of or communicated with.100
88. It is humbly submitted that in the present case, Janice’s right to freedom of speech and
expression was violated, as what she communicated to Mr Sukh was intended to be a
conversation just between them, to the exclusion of all others. However, this could not be
the case as it was recorded and capable of being heard by others.
89. But such restriction can be justified if it passes the test of reasonability according to
which a restriction is reasonable if it satisfies the grounds provided under Art. 19(2).101
90. According to Art.19(2), a restraint on Freedom of Speech and Expression is justified if
the speech includes instances of defamation, contempt of court, incitement to an offence,
decency and morality, public order, friendly relations with foreign states, security of the
state and public order.
91. However, none of these instances apply in the present case. The restraint on Right to
Privacy fails the test of reasonability and hence, the same cannot be justified.
92. Therefore, it is humbly submitted that since non-consensual recording does not fulfil the
requirements of restraint on privacy, it can be concluded that there exists no justifiable
98
The Telegraph Act, 1885, No. 31, Acts of Parliament, 1885(India).
99
The Information Technology Act, 2000, No. 21, Acts of Parliament, 2000(India).
100
supra note 86.
101
INDIAN CONST. art. 19

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 Memorial for PETITIONER

reason to breach privacy and Janice had a fundamental Right to Privacy against being
recorded by a non-consensual recording device.

4.2. Janice had a reasonable expectation of privacy against being recorded in a non-
consensual recording devise
93. It is the submission of the COUNSEL for the PETITIONER that Janice had a reasonable
expectation of privacy. The test of reasonable expectation of privacy was discussed for
the first time in the case of Katz v. United States 102
and discussed at length in K.S.
Puttaswamy v. Union of India.
94. Under the test, two requirements must be fulfilled to prove that an individual had a
reasonable expectation of privacy in a particular situation. First, a person has exhibited an
actual (subjective) expectation of privacy and, second, that the expectation be one that
society is prepared to recognise as “reasonable.”
95. It is humbly submitted that in Murray v. Big Pictures (UK) Ltd along with several other
cases; it was opined that, “question of whether there is a reasonable expectation of
privacy is a broad one, which takes account of all the circumstances of the case. They
include the attributes of the claimant, the nature of the activity in which the claimant was
engaged, the place at which it was happening, the nature and purpose of the intrusion, the
absence of consent and whether it was known or could be inferred and the effect on the
claimant.”103 Further in Minnesota v. Olson, it was held that, “Through the host’s
invitation, the guest gains a reasonable expectation of privacy in the home.”104
96. Privacy105 at a subjective level reflects those areas where an individual desire to be left
alone. On an objective plane, privacy is defined by those constitutional values which
shape the content of the protected zone where the individual ought to be left alone.106
97. In the present case, it is submitted that Janice and Mr Sukh were engaged in a heated
discussion at Mr Sukh's home. During this conversation, Ms Janice discussed financial
improprieties and misdealing with her seven-year co-founder. 107 Hence, she had a
reasonable expectation of privacy during a discussion inherently private in nature.
Further, it is asserted that Ms Janice had a reasonable expectation of privacy, which is
supported by both a subjective and objective test. Society generally recognizes the

102
Katz v. United States, 389 U.S. 347 (1967).
103
Murray v. Big Pictures (UK) Ltd, [2008] 3 WLR 1360.
104
Minnesota v. Olson, 495 U.S. 91 (1990).
105
BRYAN A. GARNER, BLACK'S LAW DICTIONARY 377 (10th ed. 2014).
106
supra note 86.
107
MOOT PROP, ¶ 6, 9.

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 Memorial for PETITIONER

expectation of privacy for individuals engaged in private discussions, particularly those

that are emotionally charged. Therefore, both requirements for the reasonable expectation
of privacy test stand fulfilled. It is humbly submitted that the facts and circumstances of
the case demonstrate that she had a reasonable expectation of privacy. The heated
discussion involved financial misdealing and improprieties, which is inherently a private
matter. The conversation took place at Mr Sukh's house, where individuals are given
privacy.
98. Furthermore, the intrusion was evident since Sukh had knowledge that the conversation
was being recorded, as he was "reminded" that the device would have recorded
everything. "Reminded" means "to bring back to memory”109 implying that he already
108

knew the conversation was being recorded. Furthermore, the Calc Policy explicitly states
that Calc had a recording feature that could record conversations if consented to by the
user. Thus, it was reasonable for Ms Janice to assume that the recording device present
would not record unless she had given her consent.
99. Therefore, it is humbly submitted that based on the above analysis of the facts and
circumstances, it is evident that Janice had a reasonable expectation of privacy against
being recorded in a non-consensual recording device.
4.3. The non-consensual recording does not fulfil any condition mentioned under Art.
6(1) of the GDPR
100. It is the submission of the COUNSEL for the PETITIONER that the non-consensual
recording does not fulfil any condition mentioned under Art. 6(1) of the GDPR. 110 It is
humbly submitted that since GDPR is considered to be the gold standard of data
protection laws, it has raised the bar for data protection laws around the world. 111 And in
the absence of a personal data protection bill in India, it becomes imperative to assess the
reasonability of such non-consensual recording from the rules prescribed in the GDPR. It
is humbly submitted before the Hon’ble Court that Art. 6 of the GDPR expounds
conditions regarding the lawfulness of the processing. The term processing has been

108
MOOT PROP, ¶ 10.
109
Cambridge Dictionary, 485 (4th ed. 2013)
110
Regulation (EU) 2016/679 of the European Parliament and of the Council on General Data Protection
Regulation, art. 6 and repealing Counsel Directive 95/46/EC (General Data Protection Regulation) (OJ L 119,
4.5).

111
Buttarelli, G. (2016) “The EU GDPR as a clarion call for a new Global Digital Gold Standard,”
International Data Privacy Law, 6(2), pp. 77–78. Available at: https://doi.org/10.1093/idpl/ipw006.

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 Memorial for PETITIONER

defined under art. 4(2)112 of the regulation as, “Operation or set of operation on personal
data or on sets of data, whether or not by automated means, such as collection,
recording….” hence recording has been covered under the definition of processing as per
the regulations.

101. It is humbly submitted that according to art. 6(1) of the regulation, processing
(previously referred to as a recording) is lawful if it satisfies any of the conditions
specified in sub-clauses 1-6. Art. 6(1)(1) mandates consent from the data subject for
recording for a specific purpose. However, in this case, Ms Janice did not provide such
consent for the recording. Art. 6(1)(2) permits recording if it is necessary to fulfil a
contract to which the participant in the call is a party. 113 However, Ms Janice is not a
party to any such contract.
102. It is humbly submitted that art. 6(1)(3) allows recording if it is necessary to fulfil a legal
obligation to which the recorder is subject. However, there is no such obligation that the
recorder needs to fulfil in this case.114 Art. 6(1)(4) permits recording if it is necessary to
protect the vital interests of one or more participants. However, in this case, there is no
such vital interest of Ms Janice that is being protected.115
103. It is humbly submitted that Art. 6(1)(5) allows recording if it is done in the public
interest or in the exercise of official authority vested in the recorder. 116 However, neither
is any public interest being served in this case nor has any authority been vested in the
recorder. Art. 6(1)(6) permits recording if it is in the legitimate interests of the recorder
unless those interests are overridden by the interests of the participants in the call which
require the protection of personal data. 117 However, in this case, the recording is not in
the legitimate interest of the recorder.
104. It is the humble submission of the COUNSEL for the PETITIONER that since the non-
consensual recording of Janice could not fulfil any of the conditions laid down under the
GDPR, it strongly implies that such recording was not justified. Hence, Janice had a
Right to Privacy against being recorded in a non-consensual recording device.

112
Regulation (EU) 2016/679 of the European Parliament and of the Council on General Data Protection
Regulation, art. 4(2) and repealing Counsel Directive 95/46/EC (General Data Protection Regulation) (OJ L 119,
4.5).
113
supra note 111.
114
supra note 111.
115
supra note 111.
116
supra note 111.
117
supra note 111.

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 Memorial for PETITIONER

PRAYER

It is hereby most humbly prayed before the Hon’ble Court that, in light of the facts
mentioned, arguments advanced and authorities cited, this Hon’ble Bench may be pleased to
adjudicate and declare that:

I. THE CONSTITUTIONAL VALIDITY OF THE PROHIBITION OF BENAMI TRANSACTIONS

ACT, 2016 DOES NOT APPLY RETROSPECTIVELY AND THE ANCESTRAL PROPERTY CANNOT

BE ATTACHED AS PROCEEDS OF CRIME.

II. THE RECORDING DEVICE I.E. CALC CANNOT BE SEIZED BY THE INVESTIGATING

AGENCY AND WOULD NOT BE ADMISSIBLE IN LAW.

III. ED CANNOT UTILISE THE FINGERPRINTS TAKEN UNDER THE CRIMINAL PROCEDURE
(IDENTIFICATION) ACT, 2022 TO UNLOCK THE MOBILE PHONE WITHOUT TAKING THE

CONSENT OF MR SUKH.
IV. MS JANICE HAD THE RIGHT TO PRIVACY AGAINST BEING RECORDED IN A NON-

CONSENSUAL RECORDING DEVICE.

And/or pass any such order or directions the Hon’ble Court deems fit and proper in the
furtherance of justice, equity and good conscience, all of which is respectfully submitted.

For this act of kindness, the Petitioner shall duty-bound forever pray.

S/d

Counsel on behalf of Petitioner

XIV