Zenith 2019-moot Problem.docx

MOOT PROPOSITION

MR. NIXON V.

UNION OF GANARAJYA & ORS. AND MR. SL COOPER V.

PTP PARTY

1. The Union of Ganarajya which got its independence from the Great Britain in the early 1900s is a South Asian democratic nation and follows Common Law System. Ganarajya has a quasi federal structure and is divided into 13 states. 2. The Constitution of Ganarajya has been as a result of debates and discussions spanning over 6 years and was adopted only after a referendum where every citizen over the age of 18 participated and an overwhelming majority of Citizens voted in favour of its adoption. The Constitution of Ganarajya has been widely regarded as one of the world’s bulkiest constitution and as one that is easily adaptable to changing times. Several nations subsequently have adopted and borrowed several principles from the Ganarajyan Constitution.

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3. As per the Constitution, Union of Ganarajya is a Quasi-Federal Country with a parliamentary form of government, with the President as its figurative head and the Prime Minister as the head of the Executive. and the Constitution is considered to be the ‘Grundnorm’. 4. The SMS Party, an age old political party played a very crucial role in the independence struggle of Ganarajya. Infact, Mr. JL Cooper the founder of the Party along with Mr. SH Holmes & PA Jane have been widely recognised across the globe as the men responsible for Independence of Ganarajya and lovingly known as the Founding Fathers of Ganarajya. 5. Subsequent to the independence of Ganarajya, it was the SMS Party that had formed the government at the Centre level, with Mr. JL Cooper as its first Prime Minister. Since then Ganarajya has been continuously ruled by SMS Party at the Centre barring a couple of instances when the Government was formed by the PTP party, which was founded after independence by Mr. SH Holmes. 6. Though SMS Party claims to be a democratic party with a democratic setup for election of its office bearers, including the President, Vice President, Secretary and the Treasurer, the President of the Party has always been a member of the Cooper Family. Pertinently, as per the governing document of the SMS Party, the President has been vested with enormous powers and is widely considered by the public as the person who calls all the shots within the Party. 7. Being a vast nation in terms of both population and resources though the growth of the Ganarajya initially was very slow the growth rate gradually increased in late 20th century mainly due to the ‘LPG’ (Liberalisation, Privatisation and Globalisation) policy adopted by the then Central Government.

The

focus

had

shifted

socioeconomic development.

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from

social

development

to

8. In the early 2000s, the technology was growing at a fast rate in the state. The private sector economy was on an unprecedented rise due the Technological

advancements

in

the

country.

However

the

then

Governments both at the Centre and the States were very reluctant to accept and adopt Technology in governance. Ganarajya was a signatory to many conventions and treaties including UN Convention on Civil and Political Rights, 1966 and UN Convention against Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment. 9. In the year 2009, upon the death of Mrs. KD Cooper the grand-daughter of Mr. JL Cooper and the then President of SMS Party, her son Mr. SL Cooper was elected as its President. The Party was then in opposition and one of the initial challenges of the newly sworn President was ensuring the victory of the Party in the General Elections to be held in the year, 2010. 10.

Mr. SL Cooper with a view to ensure the victory of the SMS Party,

decided to forge alliances with several regional parties and accordingly formed an alliance of 20 parties by the name, SMSES alliance with SMS Party being the major partner. SMSES alliance managed to gain majority by a very slender margin by winning 202 seats out of the total 400 seats to the Parliament across the nation. 11.

Subsequent to the massive victory, contrary to the popular opinion,

Mr. SL Cooper declined to the Prime Minister of Ganarajya and instead nominated Mr. CN Ray as the Prime Minister. Mr. SL Cooper clarified that he had consciously decided against becoming Prime Minster since he wanted to focus on increasing the popularity of the SMS Party and work towards uplifting its image. Despite the refusal and subsequent clarification, several people not just within Ganarajya but across the globe believed that Mr. SL Cooper was the most powerful individual in Ganarajya and that he remote - controlled the newly formed Government.

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12.

Meanwhile, in the year 2014 there was large scale worldwide break

out of a fatal disease popularly known as Elisicoma. The symptoms of the disease were quite unique, which included disorientation and any person effected by the said disease was expected to die within 1 to 1.5 years. After

months

of

intense

research,

HealingHumans,

a

company

incorporated in Italy invented the cure to the said disease, a drug by the name of ‘Elisica’ and filed an application for patent of the said drug on 25th May, 2014. The cure so invented required any effected patient to be administered with the said drug for three times a day for a period of 15 days to 1 month. However the cost of the drug was very high and was valued at approximately 15,000 Ganarajya Rupees per tablet. 13.

By May, 2014 Eliscoma had spread across Ganarajya and as per the

then WHO report, Ganarajya was among the 3 most affected nations across the globe. Ganarajya government was under immense pressure to provide its people with a cheaper cure or provide Elisica at a cheaper cost. Several cabinet meetings and emergency parliamentary sessions were held and the government was facing a crisis. 14.

While so, Dhanvantri Co., a public company incorporated under

the Ganarajya Companies Act, 1956 and listed under Ganarajya National Stock Exchange claimed to have invented a much cheaper cure for Eliscoma. The Company had already invented several life saving drugs in the pasted and had almost 30 registered patents. The said cure was also submitted to the Government by Dhanvantri Co.. Upon several rounds of examination by several independent agencies within Ganarajya it was declared that the cure invented by Dhanvantri Co. was indeed very effective in treatment of Eliscoma. A patent under the name of ‘Dhanras’ was also granted for the tablet. The production of ‘Dhanras’ required a major chemical “2-Amino-6-(trifluoromethoxy) benzothiazole” commonly called as “Riluzole” and also required a special cooling agent “M. Ascria”.

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15.

There was however still one concern. Even though the cost of Dhanras

was much less in comparison to Elisica, it was still not affordable by most of the citizens of Ganarajya. Each tablet costed Rs. 5000 approximately. Dhanavantri Co. in its report to the Government submitted that the high cost was mainly attributable to the high cost of one of the raw materials, Riluzole. It was also submitted that that the said raw material was abundantly available in Italy and that if the Government could provide the same at a subsided cost, Dhanras could be manufactured and sold at substantially lower cost. 16.

Meanwhile there were country wide protests being held against the

government for its failure to provide effective cure for Eliscoma which had resulted in death of thousands of people. Having been under immense pressure from all stakeholders and citizens, Mr. SL Cooper announced in a press conference that he would forthwith persuade the Government to attend to the problem. 17.

Immediately consequent to the said press conference, Mr. CN Ray

announced that the government would be procuring Riluzole from Italy and providing the same at a very subsidised price of Dhanvantri Co. for production of Dhanras. Accordingly, Union of Ganarajya entered into a bilateral treaty with Italy, popularly known as treaty of AYUSH. 18.

Under the said treaty it was understood that Ganarajya would

purchase Riluzole from either the Government of Italy or its state owned corporations and that each such purchase would be given effect to by executing separate agreements accordingly between the relevant parties. The treaty also indemnified the Government of Italy as well as the its state owned corporations from any individual claims under such agreements and the Government of Italy would only be liable to Union of Ganarajya who would espouse any such claims on behalf of the companies of Ganarajya before the International Court of Justice.

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19.

Mr. T. Nixon, the then Health Minister and a veteran of the SMS party

was very instrumental in the execution of the treaty and was appreciated and celebrated across Ganarajya for his efforts. He had in-fact become the most popular leader in Ganarajya after Mr. SL Cooper.

To

commemorate his success, SMS Party had held an honouring ceremony. In the ceremony, while addressing the party leaders, Mr. Nixon had stated that his entire success had to be in-fact credited to Mr. Cooper since Cooper was equally responsible as well. Pertinently Mr. Cooper was not present at the ceremony since he was in United States of America at that time getting his sister treated for Cancer. 20.

Thereafter, the Government of Ganarajya commenced procurement of

Riluzole by entering into several agreements with Government of Italy and its state owned corporations for the said purpose and the same was subsequently provided to Dhanvantri Co. at a highly subsidised rate. It was estimated that Government of Ganarajya had almost spent Rs. 100 crore for the said procurement and sold the same at a meagre sum of Rs. 10 crores. Dhanvantri Co. then commenced production and sale of Dhanras on a large scale basis from November, 2014. 21.

Despite the above efforts of the Government of Ganarajya, it was

reported by WHO in January 2015 that Ganarajya was still among the 3 most affected nations and that Dhanras has had no effect on patients suffering from Eliscoma. Alarmed by the above report the Government of Ganarajya set up various independent committees consisting of doctors and other experts for ascertaining the credibility of the report. Dhanvantri Co. had also set up internal committee for similar purposes. All the committees reported in unison that the report of the WHO was indeed true and that Dhanras had failed miserably in curing Eliscoma. Some these reports were leaked to the media as well. 22.

This led to widespread protests and violence across Ganarajya and the

government was constrained to import Elisica from HealingHumans and

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subsequently

sell

the

same

at

subsidised

rates

to

its

citizens.

Government of Ganarajya. This had a huge impact on the Government treasury as it had to spend a whooping Rs. 10,000 crores on the same. Government of Ganarajya also terminated that the various agreements and the treaty of AYUSH with the Government of Italy. This act of termination opened Ganarajya to several claims of damages from Government of Italy and its state owned corporations amounting to crores of Rupees. 23.

In June 2015, few weeks before the general elections in Ganarajya,

Dhanvantri Co. released a press statement that the reason behind failure of Dhanras was actually supply of incorrect raw material. It was stated that the Government had provided Pilozule instead of providing Rilozule. It was further stated that the chemical properties of Pilozule were extremely similar to that of Rilozule and that it was almost impossible to differentiate between the two, except that Pilozule was not solvent in blood as opposed to Rilozule which would easily dissolve in blood. Pilozule was also stated to be way cheaper than Rilozule. 24.

The Government of Italy also invoked Arbitration and initiated

arbitration proceedings against Government of Ganarjaya before the Hong-Kong Arbitration Centre. The Government of Italy had filed a claim statement of Rs. 50 crores before the Arbitral Tribunal in lieu of the unilateral termination of the AYUSH treaty. 25.

Around the same time, Mr. Watson Holmes a descendent of Mr. SH

Holmes and an investigative journalist published a blog wherein it was reported that exchange of Pilozule with Rilozule was actually a huge scam that was committed by several official of Ganarajyan Government and the Italian Government at the instance of ‘HealingHumans’. It was reported that one Mr. Keefee, who was also an additional secretary to the Health Minster along with some officials in Italian Government had swapped the

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two chemicals at the airports at Italy before they were transported to Ganarajya. 26.

A major conspiracy was further elaborated by suggesting that the

entire

exchange

of

materials

was

actuated

at

the

instance

of

HealingHumans since HealingHumans would have been severely affected by the effective sale of Dhanras. It was further reported that Directors of HealingHumans feared that if Dhanras was proved effective then it would be imported by nations across the globe and that the same would damage the sale of Elisica and therefore the Directors wanted Dhanras to fail at all costs. 27.

Another startling revelation made was that Mr. Nixon was also

involved in the entire scam and it was alleged that he had received kickbacks in a very unique form. Mr. Michel, one of the promoters of HealingHumans had purchased the 200,000 preference shares of one company by name ‘Noxin India Co. Ltd.’ at Rs. 20,000 whereas the market value of the shares were only at Rs. 20 per share with no voting rights at all. Noxin India Co. was in-fact a fully owned subsidiary of Noxin Co. Ltd. which was incorporated in Australia. Mr. Nixon and his family members owned 77.7% of the shares in Noxin Co. Ltd. The entire scam was coined as the ‘Dhanras’ scam. 28.

This blog sent ripples across the nation and the political circles. The

entire Government was rattled. The Prime Minister Mr. CN Ray and Health Minister Mr. Nixon immediately released press statements that the contents of the blogs were blatantly false and incorrect and that were manufacture by the PTP party only for political gains. 29.

In the general elections that ensued thereafter, PTP party came to

power and formed the Government on 10th December, 2015. Amongst several reasons for PDP, one of the main ones was the incumbent government’s failure to curb corruption and black-money apart from the

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entire debacle of Eliscoma. Several international rating agencies had rated Ganarajya as one of the most corrupt nations and one with most tax evaders. Therefore one of the biggest challenges in front of PTP Government was the curbing of corruption and decrease the number of Tax evaders. 30.

Immediately after forming the government and swearing in as the

Prime Minister Mr. Smith (the leader and the President of PTP party) launched a full fledged investigation into the so called Dhanras Scam by forming and appointing a Special Investigative Team and he also assured the citizens that he would personally monitor the said investigation. Mr. Jacques Clouseau, an Assistant Commissioner of Police in the state of Bhojarajya (one of the 13 states of Ganarajya) and internationally renowned white collar crime expert was appointed as the head of the Special Investigative Team (hereinafter ‘SIT’). 31.

Interestingly though, immediately after the loss of SMS Party in the

elections, where most of its leader even lost their security deposits, several of its leaders including the ex. Prime Minister Mr. Ray and Mr. Nixon flew to foreign nations on some pretext or the other. 32.

On 21st June, 2016, the SIT submitted its report wherein it was stated

that Mr. Keefe had swapped the two materials at the Italian Airports and the same was confirmed by the CCTV footages available at some of the Airports. It was also confirmed that Rilozule was never received by the Ganarajyan Government and that only Pilozule was received by them and since it was almost impossible to differentiate the two, the swap was undetected. Further the investigation had also revealed that Mr. Keefe had also involved Mr. Bancroft in commission of the said crime. Mr. Bancroft was actually an employee of Dhanvantri Co. and was responsible for receiving Rilozule from the Government of Ganarajya. He was roped in by Mr. Keefe to ensure that Pilozule was received by Dhanvantri Co. without any hassle or doubt.

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33.

Acting on the report, SIT also filed a complaint before the concerned

Court of Metropolitan Magistrate and registered the FIR as per the Magistrate’s directions. Simultaneously a nationwide man hunt for Mr. Keefe and Mr. Bancroft was also launched. The SIT also filed its chargesheet on 31st July, 2016 and Mr. Keefe and Mr. Bancroft were declared as absconders in the Charge-sheet and were charged under the relevant sections of IPC. Pertinently, there was no mention of either Mr. Nixon or HealingHumans or Mr. Michel in both the Charge-sheet or in the initial report dated 19th June, 2016. 34.

While the man hunt for Mr. Keefe and Mr. Bancroft was still on, on 7th

September, 2016 both of them voluntarily surrendered before the Court of Metropolitan Magistrate, stating that they had been falsely implicated in the case. They were arrested and remanded to police custody, and supplementary charge-sheet was filed against them. But when brought before the Court, they submitted that they wanted to make a confession, and also turn as Approvers. They prayed for tender of pardon u/s 306 CrPC. Subsequently, they were produced before the concerned Court of Special Metropolitan Magistrate, where their confessions were recorded. 35.

In their confession statements, the two accused stated that the entire

act of swapping of material was committed by them at the instance of Mr. Nixon. Mr. Keefe further stated that Mr. Nixon had offered him Rs. 50 Crores for the said job and also provided details of transfer of Rs. 25 crores from some foreign offshore bank accounts to his bank accounts in Royale Bank of Switzerland. He further confessed that he had several times overheard Mr. Nixon speak over the phone to the Directors of HealingHumans in relation to the incident. He also stated that during a small get together hosted at Mr. Nixon’s house which was attended by several officials of HelaingHumans, Mr. Nixon had mentioned that his family’s company had benefited immensely from HealingHumans and its

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promoter. Upon such confession, the Prosecution also reported no objection for tender of pardon under Section 306. 36.

Acting upon such startling revelations made by Mr. Keefe and Mr.

Bancroft, the SIT continued its investigation and submitted another supplementary charge-sheet on 10th January, 2017 adding Mr. Nixon and HealingHumans as accused by charging them under relevant sections of IPC and Prevention of Corruption Act. It was clearly stated that Mr. Michel had in 2015 purchased 200,000 preference shares of Noxin India Co. Ltd. a wholly owned subsidiary of Noxin Co. Ltd., at a greatly inflamed cost of Rs. 15,000 per share as opposed to its then prevailing market rate of Rs. 20 to Rs. 50 per share. It was further stated that during the course of investigation SIT came to know that Noxin India Co. Ltd. was shut down and all its assets (mostly current assets) were transferred to its parent company Noxin Co. Ltd. in Australia and that 77.7% shares of Noxin Co. Ltd. was owned by Mr. Nixon and his family members. Mr. Nixon was also declared as an absconder. The FIR was also amended accordingly. 37.

In March, 2017 SIT received information that Mr. Nixon was in

Australia and immediately initiated the process of his extradition. However the extradition process was hampered by the non-availability of any extradition treaty of Ganarajya with Australia. These revelations led to nationwide agitations and protests. It was the hot-topic for all the media channels and papers. The entire nation seemed to have been engrossed in the scam and its related news. 38.

Taking advantage of the situation, some of the party workers of PTP

party published on their social networking pages that the entire scam actually happened at the instance of Mr. SL Cooper since he was the head of the SMS party. In-fact in June 2017 the ‘Weekly-Post’ a newspaper owned by PTP party published an article about Mr. SL Cooper being the King-pin of the scam. It was reported that it was well known

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that Mr. SL Cooper remote controlled the government and that there was no way that such a huge scam was committed without the knowledge and approval of Mr. SL Cooper. The said article was also published on the website of PTP Party and later taken down within a day. 39.

Mr. SL Cooper immediately issued a press statement that he was in

no aware or connected with the Dhanras Scam and that in fact he was not even in Ganarajya from 2014 December to 2015 June since he was in USA getting his sister treated. He also initiated a defamation suit against the PTP party before the appropriate district court in Bhojarajya since the Party headquarters of PTP were located in Bhojarajya and sought a relief of preventive injunction as immediate interim relief. The plea of interim relief was rejected by the district court. Against the said orders Mr. Cooper preferred an appeal to the High Court of Bhojarajya 40.

The PTP government as part of fulfilling its election promises and

having come under criticism for having failed to get back Mr. Nixon, enacted the Ganarajya Fugitive Economic Offenders Act, 2017 in June 2017 and declared Mr. Nixon as the first Fugitive Economic Offender under the act. Government also initiated appropriated actions under the Prevention of Money Laundering Act against Mr. Nixon for attaching the proceeds of Crime. 41.

Upon learning of these developments in Ganarajya, Government of

Italy also initiated criminal actions against its officials involved in the incident and Mr. Keefe and Mr. Nixon. Government of Italy also sought extradition of Mr. Nixon from Australia and Mr. Keefe from Ganarajya. 42.

Immediately thereupon Mr. Nixon issued statements to Press in

Australia that he had not fled Ganarajya and that he had flown to Australia only on health grounds for getting himself treated and that he had also obtained the citizenship of Australia since he would have to stay in Australia for foreseeable future for his treatment. He also revealed that

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he had given up his Ganarajyan citizenship and that the same had been accepted by the Government of Ganarajya in Januar, 2016. He also said that he would initiating appropriate legal steps. 43.

Accordingly, Mr. Nixon filed a Writ Petition before the High Court of

Bhojarajya seeking for quashing the FIR, the Charge-sheet filed, the proceedings initiated under Prevention of Money Laundering Act against him and the declaration under the Fugitive Offender Act, on the ground that the courts of Ganarajya had no jurisdiction either over him or the alleged crime committed. He also stated that no FIR or Charge-sheet could be filed only on the basis of the statements of Mr. Keefe and Mr. Bancroft. 44.

On hearing the counsel of Mr. Nixon and the State Public Prosecutor,

the High Court of Bhojarajya dismissed the Writ Petition filed by Mr. Nixon. On the same day the High Court also dismissed the appeal filed by Mr. SL Cooper against the orders of the district court. 45.

Aggrieved by the order of the High Court, Mr. Nixon preferred a

SLP(Cr.) No. 572/2019 before the Supreme Court of Ganarajya and apart from the grounds pleaded before the High Court, Mr. Nixon also challenged the Constitutional validity of Section 306 of CrPC. Mr. SL Cooper also filed an appeal (Civil Appeal No. 8209/2019) against the orders of the High Court dismissing his appeal. 46.

Responding to the SLP preferred by Mr. Nixon, the State contended

that constitutional validity of a law cannot be raised for the first time in a SLP proceeding. 47.

The Hon’ble Supreme Court has admitted the SLP and the Appeal and

decided to hear them together. The Hon’ble Court also clarified that the challenge to maintainability of SLP may be challenged on only on a limited ground locus of Mr. Nixon to challenge the constitutional validity

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for the first time in a SLP proceeding. The Hon’ble Court has posted the matters for final hearing after having framed the following issues:

SLP (Cr.) No. 572/2019: I

Whether the Petitioner is entitled to challenge the constitutional validity of Section 306 of CrPC for the first time in a SLP proceeding.

II Whether Section 306 of CrPC is ultra-vires the Constitution of Ganarajya. III Whether the FIR and Charge-sheet, proceedings under the Prevention of Money Laundering Act and Fugitive Offenders Act against the Petitioner are liable to be quashed.

Civil Appeal No. 8209/2019: I

Whether the Appellant is entitled for the interim relief of Preventive Injunction.

NOTE: 

The laws of Ganarajya are paramateria to the Laws of India, including the judgments delivered by Supreme Court of India and the various High Courts of India. However all ‘Common Law’ Precedents have equal persuasive value.



Participants are expected to bring to the court’s attention the relevant jurisprudence. It may include judgements and opinions delivered by Courts of Common Law Nations.



Participants have to demonstrate with cogent reasons as to why a principle of law derived from precedent or otherwise is logical and the most applicable one.

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

The SLP and Civil Appeal are being heard together and not being clubbed together.



Participants are required to address the court only on the issues framed above.

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