Dr. Ibrahimovic: Team Code-155

TheK.K.
LuthraMemorialMootCourt,2013
Team Code-155 ----------------------------------------------------------------------------BEFORE THE COURT OF APPEAL OF POLKRAINE
Dr. Ibrahimovic (Appellant) V. The Republic & Polkranian Times & Others. (Respondent) THE K.K. LUTHRA MEMORIAL MOOTCOURT 2013 Memorials for the Respondents (Counsels on behalf of the Respondents)
MemorialsfortheRespondents
TheK.K.LuthraMemorialMootCourt,2013
TABLE OF CONTENTS
INDEX OF AUTHORITIES.. 3
STATEMENT OF JURISDICTION. 6
STATEMENT OF FACTS... 6
STATEMENT OF ISSUES.. 8
SUMMARY OF ARGUMENTS... 9
WRITTEN PLEADINGS............................ 10
PRAYER. 26
INDEX OF AUTHORITIES
Precedents and Judgments
1. R v. Daye [1908] 2 KB 333 at 340. 2.Ziyauddin Burhanuddin Bukhari vs Brijmohan Ramdass Mehra & Ors, 1975 AIR 1778. 3. Yusufalli Esmail Nagree v. State of Maharashtra,(1967) 3 SCR 72. 4. N. Sri Rama Reddy v. state of Maharashtra, 1971 AIR 1162. 5. R. M. Malkani v. State Of Maharashtra AIR 1973 SC 157: (1973) 1 SCC 471. 6. Shri U. Sri Rama Reddy Etc. v. Shri V.V. Giri [1971] 1 S.C.R. 399. 7. K.S. Mohan vs Sandhya Mohan,: AIR 1993 Mad 59 8. Shri H.C. Pant vs Union Of India, (2001) 2 SCC 386): 9. Magraj Patodia v. R. K. Birla & Ors [1971] 2 S.C.R 10. Bank of England v Riley (1992) 1 All ER 769. 11. United States v. Moore, 423 U.S. 122, 12. United States v. Blanton, 730 F.2d at 1427-1428. 13. United States v. Fooladi, 746 F.2d 1027, 1032 (5th Cir.1984) 14. United States v. Neal, 78 F.3d 901, 906 (4th Cir. 1996) 15. United States v. Leopard, 936 F.2d 1138, 1141 (10th Cir. 1991) 16. United States v. Leopard, 936 F.2d 1138, 1141 (10th Cir. 1991) 17. United States v. Betancourt, 734 F.2d 750, 757 (11th Cir.1984) 18. Indian Express v. Union of India(1985) 1 SCC 641 19.Jacobson v. United States, 112 S.Ct. 1535, 1540 (1992).
MemorialsfortheRespondents 3
20. Kott v. United States, 5 Cir., 163 F.2d 984, 987 21.Jindra v. United States, 5 Cir., 69 F.2d 429, 431 22.Gargano v. United States, 5 Cir., 24 F.2d 625 23. Newman v. United States 9 Cir., 28 F.2d 681 24. Maneka Gandhi v. Union of IndiaAIR 1978 SC 597 25 RomeshThapar v. State of MadrasAIR 1950 SC 124 26. Narain Das Vs. Government of Madhya Pradesh and Ors. AIR 1974 SC 1252 27.Pennekamp v. Florida(328 US 331 : 90 L Ed 1295 (1946)) 28. S. Rangarajan Vs. P. Jagjivan Ram (1989) 2 SCC 574
Conventions
1. United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. 2. Single Convention on Narcotic Drugs, 1961. 3. Convention on Psychotropic Substances, 1971. 4. Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, 1931.
Legislations and Acts:

1. Controlled Substances Act, 1970. 2. Methamphetamine Precursor Controlled Act. 3. Narcotic Drugs and Psychotropic Substances Act, 1985. 4. Contempt of Courts Act, 1981. 5. Controlled Substances Penalties Amendments Act, 1984. 6. Narcotic Drugs Act,1967 7. Criminal Attempts Act,1981
8. Information Technology (Amendment) Act, 2008 9. Electronic Communications Privacy Act of 1986 10. The Indian Evidence Act, 1982 11. Code of Criminal Procedure, 1973
Miscellaneous:
1. The Constitution of Polkraine 2. The Constitution of India, 1950
Bodies:
1. International Narcotics Control Board. 2. United Nations Office on Drug and Crime. 3. Australian Drug Law Reform Foundation.
Books Referred:
1. Law of Evidence, Vol. 1 and 2, by Sarkar. 2. Investigation and Examination of Digital Evidence, by Stephen Mason. 3. Phipson in Evidence; 16th Edition. 4. The Modern Law of Evidence, Adrian Keane. 5. Drugs and the Criminal Justice System. 6. Law of Drugs, by SN Katju. 7. Narcotic Drugs and Psychotropic Substances Act, 1985.. 8. Press Act, by Durga Basu. 9. Arlidge, Eady & Smith On Contempt.
STATEMENT OF JURISDICTION The appellants humbly approach the Honourable Court of Appeal under section 385 (1AA) and 385 (2A) of The Polkranian Criminal Procedure 2006. The Respondents humbly submits to the jurisdiction of this Honourable Court. STATEMENT OF FACTS 1-Polkraine, a landlocked nation, got independence from Gortatovich in 2005. It has successfully established rule of law and public order, adopted the common law system as a judicial model with its constitutional democracy. Torresnik, the capital of Polkraine has become the hub of global jetsetters and A-list celebrities. However, the Government has had to deal with an escalating drug problem, cracking down on trafficking, manufacture, sale, possession and use of narcotics and hallucinogens. 2-Polkraines true sense of pride lies in its scientists which are leading every scientific field from the front. One such luminary, Dr. Ibrahimovic, a chemist of repute who has developed new organic compounds to combat ailments affecting the sinuses, nasal passage and respiratory system. 3-The black mark in his illustrious career has been an internal enquiry conducted in 2009 by Breathwell, the company which funds his research and provides him with laboratory space, in respect of allegations regarding use and possession of marijuana in the workplace. The inquiry, however, proved inconclusive. 4- Dr. Ibrahimovics used to be one of the regular feature in the leading English daily, Polkranian Times. The Polkrainian Times is a newspaper which is 90% state owned. Polkranian Times Inc. is the entity controlling the Polkranian Times, which also owns a news channel by the name of Torresnik Today. 5. On 19th January 2012, on the eve on Polkrainian Independence Day, Dr. Ibrahimovic threw a lavish party at his suburban villa on the outskirts of Torresnik. In the course of the evening, other guests noticed a man having a forty five minute conversation with Dr. ibrahimovic at a secluded spot near the swimming pool. Unknown to Ibrahimovic or anybody else, this man was an
undercover journalist from Torresnik Today who had slipped into the party, armed with a hidden camera concealed in the button of his blazer. 6. On 21st January 2012, at 10:30 AM, the police, accompanied by a video journalist from Torresnik Today and a chemicals expert attached to the police department, raided Dr. Ibrahimovics laboratory. They found Ibrahimovic at his workbench, where he seemed to be working with red phosphorus. They also found that a nearby vat contained the ingredients for the production of pseudoephedrine, through yeast fermentation of dextrose in the presence of benzaldehyde. Dr. Ibrahimovic was arrested on the spot, and was given the reason that the CEO of Polkrainian Times Inc. had informed them the previous day that Dr. Ibrahimovic was involved in the manufacture and sale of methamphetamine in its crystal form, better known as crystal meth, a prohibited substance and had sent the police video clips of alleged conversations which demonstrated this. 8. Next evening Torresnik Today ran video clips titled Ibrahimovic: Meth Man which contained random clips ending in a 28 minute long isolated conversation between two individuals, one of whom was Dr. Ibrahimovic. In the clip, they both talked about the grass incident which took place in Ibrahimovics office. Towards the end, the audio is unclear for 30 seconds after which Ibrahimovics voice reappears saying, know where you can get some. The journalist then asks Ibrahimovic to get some for him as he is willing to pay good money to which Ibrahimovic responds positively. The news channel claimed that the police had been informed of this sting operation in advance. Therefore, information, along with video footage, had been passed on to the police through proper channels. Dr. Ibrahimovic later admitted to the police that he, indeed, was the 2nd man who could be seen and heard in the footage. However, he claimed that the footage was pieced together to deliberately portray him as a drug peddler. 11. Dr. Ibrahimovic was indicted and tried for attempt to manufacture and sell a controlled substance, i.e., methamphetamine. His trial began on 10th February, 2012 . 12. When the journalist was called to the witness box, he recounted the entire chain of events that happened that night. He also said that Dr. Ibrahimovic had been seen using and distributing these substances before; which is why the sting operation had been conducted.
13. On 17th February 2012, prosecution started their arguments and using video graphic evidence, testimony of the journalist and the report drawn up by the police showed how Dr. Ibrahimovic had attempted to manufacture and sell methamphetamine. 14. Meanwhile, Torresnik Today and Polkranian Times had been running daily shows on Ibrahimovics case. And one among them was featuring the prosecutions case. After this the Judge abruptly recused himself from the case stating that it would be inappropriate for him to deliver judgment as he has been compromised. 16. A new Judge was appointed on the morning of 23rd February 2012. The Council of Accused started by moving an application for initiating criminal contempt of court against Polkrainian Times Inc., its CEO and its Managing Editors. The Judge delivered his verdict and convicted the accused of attempt to manufacture and sell a controlled substance, thus, sentencing him to 9 years imprisonment along with a fine of 40,000 Polkrainian dollars. He dismissed the application for initiating contempt of court proceedings against the Polkrainian Times Inc. as being without basis and substance.
STATEMENT OF ISSUES
1. Whether the video recording is competent and admissible in evidence so as to prove that Dr. Ibrahimovic is guilty of attempting to manufacture and sell a controlled substance. 2. Whether Dr. Ibrahimovic is guilty of attempt to manufacture and sell methamphetamine in contravention to Polkrainian Law? 3. Whether entrapment defense is applicable?
4. Is this a case of contempt of court?
SUMMARY OF ARGUMENTS
1. The video recording is competent and admissible in evidence so as to prove that Dr.
Ibrahimovic is guilty of attempting to manufacture and sell a controlled substance:

The videotape is not only admissible in evidence but can also be relied upon to return a finding of guilt of the accused. It is itself the primary and direct evidence of the conversation which took place between the accused and the reporter on 19th January 2012, and should be thus, considered as evidence in light of its admissibility as well as genuineness.
2. Whether Dr. Ibrahimovic is guilty of attempt (Sec.321, Polkrainian Penal Code 2006) to manufacture and sell methamphetamine (a controlled substance) in contravention to Polkranianlaw, the Narcotic Drugs Act 2006) Dr. Ibrahimovic is already known for producing generic drugs is caught red-handed working with Red-Phosphorous which is the last element to be added for the production of methamphetamine,hence its is acts by no means amount to mere preparation . 3. Whether the entrapment defence is not applicable in the present case? The two elements laid down in Jacobson v. United States i.e. (1) government inducement of the crime, (2) a lack or predisposition on the part of the defendant to engage in criminal conduct are not satisfied by the present case. 4. Whether this is a case of contempt of court? The Pokaranian Times Inc. and Torresnik Today merely reported the merits of the case, which does not constitute contempt. Simply making remarks against Judges in press does not amount to Contempt of Court .
TheK.K.LuthraMemorialMootCourt,2013 Written Pleadings Issue 1: The video recorded evidence is competent and admissible in evidence so as to prove that Dr. Ibrahimovic is guilty of attempting to manufacture and sell a controlled substance. As far as the video recordings are concerned, the same is sufficient to establish the guilt of the accused. The video clips are admissible in evidence in this particular case since all the required and established prerequisites are being fulfilled as elaborated below: Admissibility of Video Recording in Evidence First, admissibility of video recorded/tape recordings in evidence is no longer a grey area. The courts have since R v. Daye 1 , maintained that courts can no longer remain confined to conventional parameters of evidence amidst the ground breaking advances in science and technology and therefore have permitted the same very much by enlarging the definition of evidence to include video/ tape recorded evidence. And this is a common trend in evidence nowadays since todays equivalent of paper is often a disc, tape or film. 2 Also in almost all leading cases 3 , the Supreme Court has held that tape records of speeches are documents under evidence and thus admissible in evidence 4 . It is res gestae 5 . In Hopes v. H.M. Advocate, the learned judge held that new techniques and new devices are the order of the day and thus such evidences are admissible and sufficient 6 . As Wigmore observes; for evidentiary purposes they have a human credit to support to them, they become media of communication as a superior substitute for words. Also, as it has been observed by an Australian court, If it be established that the electronic recorder did accurately record sound then it is properly admissible inevidence 7 . In the leading case of R. M. Malkani v. State Of Maharashtra 8 and R.K.Anand v. Registrar, the courts have elaborated the following guidelines as conditions for admissibility of a tape
R v Daye [1908] 2 KB 333 at 340. Darling J any written thing capable of being evidence is properly described as Kajala v Noble (1982) 75 Cr App R 149, CA. Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra & Ors,1975 AIR 1778 : 1975 SCR 453,Yusufalli a document and.it is immaterial on what the writing may be inscribed.
2 3
Esmail Nagree v. State of Maharashtra,(1967) 3 SCR 720, N. Sri Rama Reddy v. state of Maharashtra, 1971 AIR 1162, R. v. Maqsood Ali, 1966 1 QB 686, K.S.Mohan v.Sandhya Mohan, AIR 1993 Mad. 59.
4
Civil Evidence Act 1995,s.13 and the Criminal Justice Act 2003,s.134(1), document is defined as anything in R. M. Malkani vs State Of Maharashtra 1973 AIR 157, 1973 SCR (2) 417 The Statue of Liberty (1968) 1 WLR 739, R v Dodson; R v Williams (1984) 79 Cr App r 220, CA. Holt, Ch. Of Q.S. in Travers, (1958) SR (NSW) 87 at p.96. AIR 1973 SC 157: (1973) 1 SCC 471.
which information of any description is recorded.

5 6 7 8
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TheK.K.LuthraMemorialMootCourt,2013 recorded statement: Tape recorded conversation is admissible provided, first, the conversation is relevant to the matters in issue; Secondly, there is identification of the voice. 9 Thirdly, the recorded cassette must be carefully sealed and kept in safe or official custody. Fourthly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. In the present case, all of these requirements would be proceeded to be fulfilled, thus the contemporaneous tape record of a relevant conversation will be relevant fact and admissible evidence. First, the conversation between Dr. Ibrahimovic and the journalist which took place on 19th January 2012 is not only relevant to the issue but is sufficient proof that Dr. Ibrahimovic did attempt to sell methamphetamine to the journalist. Secondly, as regards to the identification of the voice, there is no dispute since the facts clearly state that the accused has admitted the voice on the tape to be his 10 . Thirdly, The Chain of Custody: In a criminal matter, as already well established, the chain of custody has to be considered very carefully with respect to digital evidence 11 . In this respect, the record should address such issues as: Who collected the evidence? The protection afforded to the evidence whilst in storage 12 ; also, in Shri U. Sri Rama Reddy Etc. v. Shri V.V. Giri 13 , the court has given two grounds for considering the tape records to be reliable and authentic: firstly, the tape records had been prepared and preserved safely by an independent authority, second, the transcripts from the tape records, shown to have been duly prepared under independent supervision and control. Now, in the present case, all these requirements, which are also the general features in common law, are indeed being satisfied, as the facts are clear that the police had been beforehand informed about the sting operation and thereafter the video footage had also been passed on to the police through proper channels 14 . Thus, there leaves no room for any kind of doubt or presumption or an allegation that the video recording evidence was in wrong hands, or not in proper custody, so there can be no possiblity of distortions or tampering of the same, as the facts are clear regarding this matter. Therefore, there is no ambuigity. This is an irrebuttable presumption, thus the court is bound to draw this certain conclusion.When the original tapes are placed in proper custody 15 ; they can be considered to be authentic and thus admissible 16 .
9
In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a Fact sheet Philip Turner unification of digital evidence from disparate sources (digital evidence bag ) (2005) vol2, no 3. Warren G Kruse and Jay G Heiser computer forensics incident response essentials, (2002) pp 6-11. [1971] 1 S.C.R. 399 Fact sheet K.S. Mohan vs Sandhya Mohan,: AIR 1993 Mad 59
statement is to identify the voice of the speaker. (BMW case)

10 11 12 13 14 15
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TheK.K.LuthraMemorialMootCourt,2013 Fourthly, Evidence obtained illegally is irrelevant: This sting operation had been conducted for a greater good, so as to expose the reality of an eminent scientist, who under the garb of his position is was violating the law. As contained in NBAs Code of Ethics and Broadcasting Standards and Specific Guidelines Covering Reportage, a sting operation may be conducted in conformity, with the following guidelines: 1. A sting operation may be conducted only if warranted in public interest; 2. A sting operation should be conducted only for exposing a wrong-doing 3. A sting operation may be resorted to only if there is no other effective overt means of collecting or recording the same information or news; A good citizen when something in national interests his self-interest is of no consequence, as the larger interest of the country is paramount 17 . Also, as it has been held in the case of R. M. Malkani v. State Of Maharashtra 18 , that the although the tape recorded conversation was obtained by illegal means but even such evidence illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence 19 . This Court in Magraj Patodia v. R. K. Birla & Ors. 20 held that a document which was procured by improper or even by illegal means could not bar its admissibility provided its relevance and genuineness were proved 21 .
Fifthly, PRIVELEGE AGAINST SELF-INCRIMINATION NOT APPLICABLE: Pursuant to a variety of status and statutory instruments, this defense cannot be made available in specified circumstances to specified persons 22 . The claim to this privilege will not succeed in the present case, since this defense can only be invoked in case of an oppressive admission 23 . There is no
16

Shri H.C. Pant vs Union Of India, (2001) 2 SCC 386):It is appropriate to note that the Inquiry Officer has
considered the issue of production of original tapes and noted that since the original tapes were in the custody of the Commission, the documents would be treated as authentic document for the purpose of her inquiry.
17 18 19 20 21 22 23
R.D. Bohet S/O Sh. Bhoop Singh, v. Lt. Governor Of Delhi, Govt. Of Nct on 24 November, 2006 1973 AIR 157, 1973 SCR (2) 417 Jones v.Owen,(1870) 34 JP at 759. [1971] 2 S.C.R. Pushpadevi M. Jatia v. M.L. Wadhawan (1987) 3 SCC 367 R v Scott (1856) Dears & B 47. Per French J in Overseas programming co ltd v. Cinematographische Commerz-Anstalt and Iduna film
Gmbh(1984) The Times,16 May, QBD and per Ralph Gibson LJ in Bank of England v Riley (1992) 1 All ER 769 at 777, CA.
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scope for holding that the appellant was made to incriminate himself as at the time of the conversation there was no case against the appellant. He was not compelled to speak or confess 24 .Also, in Shri H.C. Pant vs. Union of India 25 with regard to the same question, it was held that the appellant's conversation was voluntary since the attaching of the tape recording instrument was unknown to the appellant 26 . Lastly, Authencity of the Evidence: The accused had alleged that the video recordings had been distorted to give an incomplete picture so as to portray him as a drug peddler. But the fact of the matter is that, the supreme court has stated itself in a case that there is possibly no piece of evidence which could not be tampered with, but that certainly would not be a ground on which courts would reject evidence as inadmissible or refuse to consider it. Merely, on the basis on an allegation that the video clips are tampered with, their admissibility in evidence cannot be rejected outright 27 . Also, as the principle of common law prescribes, a digital document may be authenticated by direct or circumstantial evidence 28 and circumstantial evidence includes a range of factors, including, but not limited to, the proceeding events and the testimony of the witness as well. In the present case, the fact that, on the night of the party, i.e. 19th January, the accused had offered to sell meth to the undercover journalist and when the police raided his lab on 21st January he was in fact, involved in the production of crystal meth. Plus, the testimony of the journalist corroborates and validates the video evidence. It has to be considered here that the journalist had no prior dealing or connection with the accused, which negates any kind of malicious intent on his part to distort or tamper with the evidence 29 . In the words of Sir Jocelyn Simon P, the films, the relevance of which can be
Raja Ram Pal v Hon'ble Speaker, Lok Sabha(2007) 3 SCC 184 (2001) 2 SCC 386 That fact does not render the evidence of conversation inadmissible. There is no scope for holding that the
24 25
26
appellant was made to incriminate himself. At the time of the conversation there was no case against the appellant.
27 28
As the court had proceeded in R.K.Anand vs Registrar. Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence,
direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record Ziyauddin Burhanuddin Bukhari vs Brijmohan Ramdass Mehra & Ors 1975 AIR 1778,
29
As regards the credibility of the witnesses it is observed that the witnesses had at no prior dealing with the CO and
there is no reason to suspect any malicious intent on their part against the CO, also, this does not in any way imply
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established by the testimony of someone with personal knowledge of the circumstances, are admissible as items of real evidence 30 . Similarly, in Hopes v. H.M. Advocate, the court held that the inspectors testimony along with the tape recordings was primary evidence 31 . Therefore, in light of these circumstances the testimony of the journalist along with the evidence afforded by the video clips should be considered in light of its admissibility as well as genuineness. Issue 2: Dr. Ibrahimovic is guilty of attempt to manufacture and sell methamphetamine in contravention to Polkranian law. In enacting any Controlled Substances Act, any statute is particularly concerned with the diversion of drugs from legitimate channels to illegitimate channels 32 . The Act is an attempt to limit this diversion by strict requirements for all persons who are authorized to legitimately work with controlled substances in order to closely monitor the flow of controlled substances from manufacturer to consumer. 33 Practitioners, such as physicians, pharmacists and chemist, who legally can dispense controlled substances can be convicted under the Act when their actions fall outside the scope of legitimate professional practice. 34 Indeed, Government of Polkraine is not so naive as to fail to recognize that registrants, who invariably have the greatest access to controlled substances and therefore the greatest opportunity for diversion, were responsible for a large part of the illegal drug traffic. 35 It seems eminently clear that the Government meant to prohibit all activities, legitimate or otherwise, of all manufacturers of controlled substances and intended that their conduct be

that the basic conversation and oral and documentary evidence has been manipulated/doctored. Shri H.C. Pant vs Union Of India on 23 December, 2011
30 31
The Statue of Liberty (1968) 1 WLR 739 R v. Mills, S. Pratap Singh vs The State Of Punjab,1964 AIR 72, 1964 SCR (4) 733. United States v. Moore, 423 U.S. 122, 135, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975). United States v. Blanton, 730 F.2d at 1427-1428. The Supreme Court affirmed a conviction of a physician under section 841(a)(1) because he exceeded the bounds Same was held in United States v. Moore, 423 U.S. at 135, 96 S.Ct. at 342
32 33 34
of legitimate medical practice. United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975).
35
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punishable under Sec. 29 of the Narcotics Drug Act 2006. 36 Moreover, the Supreme Court in United States v. Moore 37 interpreted 21 U.S.C. Sec. 841 38 and held that even individuals who are registered are not beyond the reach of Sec. 841 simply because of their status (e.g., a physician). A registered physician violates Sec. 841 when he exceeds the usual course of professional practice. 39 The legislative history indicates that Congress was concerned with the nature of the drug transaction, rather than with the status of the defendant. Now, the question which arises is whether Dr. Ibrahmovich is guilty of Attempt or Preparation? Looking at the four stages in the commission of an offence i.e. (i) Intention (ii) Preparation (iii) Attempt (iv) Actual commission of the offence. It is clearly understood it is somewhat arduous to comprehend the thin line between preparation and attempt, where former being punishable and the latter lets you be unscathed. What we need to understand is that an attempt to commit offence begins where preparation to commit it ends. I-Attempt (specific intent crime) a. Rule: A criminal attempt occurs when a person, with the intent to commit an offense, performs any act that constitutes a substantial step toward the commission of that offense i.e. any conduct that has reached the 5th step below. 40 b. Stages of criminality: i) D conceives the idea of committing a crime ii) D evaluates the idea, in order to determine whether he should proceed iii) D fully forms the intention to go forward (mens-rea) iv) D
36
See United States v. Fooladi, 746 F.2d 1027, 1032 (5th Cir.1984) (convictions of unregistered chemist for
manufacturing and attempting to manufacture controlled substances under Secs. 841(a)(1) and 846 in a home laboratory upheld).
37 38
423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), 841. Prohibited acts A
(a) Unlawful acts Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
39 40
See United States v. Betancourt, 734 F.2d 750, 757 (11th Cir.1984) Criminal Law outline at page 22
https://docs.google.com/viewer?a=v&q=cache:CEfWo088R88J:www.law.umaryland.edu/studentorg/sba/documents /outlines/crimlaw/crimlaw_colbert.doc
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prepares to commit the crime, e.g. by obtaining any instruments necessary v) D commences commission of the offense (actus-reus) vi) D completes actions, thereby achieving criminal goal. To prove an attempt to manufacture methamphetamine, it is to be shown (1) intent to manufacture methamphetamine, and (2) commission of an act which constitutes a substantial step towards commission of the substantive offense. 41 Intent and knowledge, however, can be inferred from surrounding circumstances. 42 If, with intent to commit an offence, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence. Intent ordinarily may not be proved directly because there is no way of fathoming or scrutinizing the operations of the human mind, but you may infer the defendant's intent from the surrounding circumstances.43 You may consider any statement made and done and all of the facts and circumstances in evidence which indicate his state of mind. It is ordinarily reasonable to infer that a person intends the natural and probable consequences of acts knowingly done. Notion of attempt, unlike the notion of killing or stealing does not always require that the object in question should exist; it need require only that the offender believed that it did or might exist 44 Secondly, the "substantial step" question appears is that of a factual one, or at least one regarding the application of the guidelines to a particular set of facts. 45 Whether conduct represents a substantial step depends on the surrounding factual circumstances and, therefore, such determinations are necessarily fact specific.46 The "substantial step" required to establish an attempt must be something beyond mere preparation. It must be an act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime. A substantial step is an appreciable fragment of a crime and
41
United States v. Becker, 230 F.3d 1224, 1234 (10th Cir. 2000), cert. denied, 121 S. Ct. 1666 (2001);United States
v. Montanye,996 F.2d 190, 191 (8th Cir.1993) (en banc), cert. denied, 519 U.S. 938, 117 S.Ct. 318, 136 L.Ed.2d 233 (1996).
42 43 44 45 46
Leopard, 936 F.2d at 1141. United States v. Smith, 264 F.3d 1012, 1015 (10th Cir.2001) H.L.A. Hart See United States v. Neal, 78 F.3d 901, 906 (4th Cir. 1996) United States v. Montanye, 996 F.2d 190, 191 (8th Cir. 1993) ("Whether a defendant's conduct amounts to a
substantial step necessarily depends on the facts of each case.").
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an action of such substantiality that, unless frustrated, the crime would have occurred. The step must be strongly corroborative of the firmness of the defendant's criminal intent and must unequivocally mark the defendant's acts as criminal. It should evidence commitment to the criminal venture. However, it is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt. Making of Methamphetamine: Through a number of chemical reactions, the pseudoephedrine is extracted from the binding material of cold medicines, then chemically altered to become meth. Other chemicals are also employed at each stage of the reactions (including methanol, acetone, muriatic acid, lye, etc.), but Iodine, Phosphorous and Pseudoephedrine are the key components necessary to the ephedrine reduction method. 47 Dr. Ibrahimovics preparatory acts are closely linked with the last act, he has taken preparatory steps to execute his plan that shows he is finished with his preparatory stage and embarked almost on completion of the offence. He has performed the preparatory acts immediately preceding the attempted commission of an intended offence. This is corroborated by the fact that he was caught with a vat containing the ingredients to manufacture pseudoephedrine and was working with red phosphorous, which is the last ingredient to be added to manufacture methamphetamine. 48 Ibrahimovic has done acts which are more than merely preparatory and amount to attempts within the current law. With approval the line separating stage 1 from last stage is to be drawn at the point where D embarks upon the crime proper. The last acts should not be understood to extend only to the very last act that was required on Ibrahimovic part to complete his attempt to commit the offence. It is sufficient that the attempt is all-but completed as well as when it is completed. So, if one is using a hammer to break into a house in order to steal, but still needs a few more blows to effect entry, he or she may be convicted of attempted burglary at that point. From this example, it seems clear that Dr. Ibrahimovic is engaged in one of the last acts needed to achieve the commission of the offence. The facts clearly demarcate that Ibrahimovic was a step away from penultimate stage, caught working with red phosphorous as a last substance to be added to pseudoephedrine to manufacture Methamphetamine a controlled substance, the defendant possessed the ingredients for
47
United States v. Hollingsworth, 257 F.3d 871, 873 n.2, (8th Cir. 2001); The Eighth Circuit summary of this Fact sheet.
method.
48
17
manufacture, together with some other drug paraphernalia, and this possession is an affirmative step towards the completion of the crime of manufacturing, and the defendant intended to complete the crime, and would have done so had he not been interrupted by a search.49 In United States v. Becker 50 , the defendant possessed a recipe for the "hot" method of making methamphetamine and some (but not all) of the ingredients for that process, as well as most of the ingredients (but not a recipe) for the "cold" method. The evidence founded was considered sufficient to support a conviction for attempting to manufacture methamphetamine, because "many of the materials necessary for manufacturing methamphetamine were present, and it is not necessary for every chemical matching each recipe to be present." In United States v. Leopard, 51 it was stressed that a defendant need not possess a full "working lab" to be convicted of attempting to manufacture methamphetamine. Thus, in Leopard, conviction for attempting to manufacture methamphetamine was affirmed even though the defendant did not have heat, aluminum foil, and distillation equipment, "items that are relatively generic and easily available when compared to the extensive array of sophisticated chemicals and equipment" that the defendant did have. It further stated; we hold only that it is not necessary as a matter of law to show that the defendant actually possessed all the needed precursor chemicals and that the district court did not err in finding a substantial step on the facts of this case. In R v. Cheeseman, Lord Blackburn said: There is no doubt a difference between the preparation antecedent to an offence and the actual attempt. But if the actual transaction had commenced which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime 52
Issue 3: Entrapment defense is not applicable in the present case. On an analysis of the principles usually followed in entrapment cases 53 ; a valid entrapment defense has two elements: (1) government inducement of the crime, (2) a lack or predisposition
49 50 51 52 53
272 F.3d 581 (8th Cir. 2001) UNITED STATES OF AMERICA 230 F.3d 1224 (10th Cir. 2000), United States v. Leopard, 936 F.2d 1138, 1141 (10th Cir. 1991). [(1862) 5 LT 717] Jacobson v. United States, 112 S.Ct. 1535, 1540 (1992). v. JEFF SWEESY
18
on the part of the defendant to engage in criminal conduct. For any entrapment defense; this laiddown two-tier test has to be fulfilled. The present case at hand is identical to a long list of cases, namely, Kott v. United States 54 , Jindra v. United States 55 , Gargano v. United States 56 , Newman v. United States, 57 where time and again it has been held that if a person is induced to commit a crime by a private citizen, he cannot use the plea for entrapment defense.58 The doctrine of entrapment can be invoked only where the Government, acting through some of its own officers, is chargeable with inducing the commission of the offense.[ 59 ][ 60 ] In the present case, the sting operation has been conducted by a journalist; an independent third party. Therefore, there can be no presumption of a government inducement of the crime. Unless there is some kind of criticism to be leveled specifically at the police or at the Government; relating to how the evidence was obtained, then any argument regarding exclusion of evidence or an abuse of process is bound to fail. This is a case where the authority is simply presenting the evidence as obtained by a third party in line with their duty to prosecute criminal offences. In this case of private entrapment, the Government has become involved only after the offence, and indeed after the so called entrapment, has taken place. And even if such an allegation is entertained that there is somehow an inducement on the part of the Government, so alleged, the journalist being an agent of the government, a very reasonable argument has to be considered that the Government agents 'merely afford opportunities or facilities for the commission of the offense which does not in any way constitute entrapment. Entrapment occurs only when the criminal conduct was "the product of the creative activity" of law-enforcement officials. To determine whether entrapment has been established a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal 61 .
54 55 56 57 58
5 Cir., 163 F.2d 984, 987 5 Cir., 69 F.2d 429, 431 5 Cir., 24 F.2d 625 9 Cir., 28 F.2d 681 Polski v. United States, 8 Cir., 33 F.2d 686, 687; Beard v. United States, 8 Cir., 59 F.2d 940, 941. United States v. Sherman, 2d Cir.,200 F.2d 880, 882 United States v. Russell (411 U. S. 423 (1973)), 356 U.S. at 372
59 60 61
19
Citing the precedence of United States v. Manzella 62 a DEA agent convinced a man named Rizzo, who had no connection to the government, to sell him some cocaine. Rizzo brought the deal to the defendant, Manzella, who sold the cocaine to the agent; Manzella claimed that he was entrapped. The court rejected the defense on the grounds that Rizzo was not working for the Government. At present, the law regarding private entrapment appears to remain as Lord Fraser described it in Sang, when Eve, taxed with having eaten the forbidden fruit, replied the serpent beguiled me, her excuse was, at most, a plea in mitigation and not a complete defense. Also, if one reviews the speech given by Lord Nichollss applied to individuals claiming to be entrapped by undercover reporters: 1. Whether or not the undercover reporter did more than present an unexceptional opportunity to commit a crime; 2. The reason for the particular sting operation. Is the reporter/newspaper acting in good faith and not, for example, as part of malicious vendetta against a particular suspect; 3. The nature and extent of the reporters participation. The greater the inducement and the more forceful or persistent his overtures, the more likely that the conduct might have brought about commission of crime by a suspect who would normally avoid crime of that kind; 4. The suspects criminal record. This will only be relevant if it can be linked to other factors grounding reasonable suspicion that the defendant is currently engaged in criminal activity. Now in the present case, it is nowhere evident from the facts of the case that the reporter did present an unexceptional opportunity to commit a crime, he merely proposed to buy the drugs which Dr.Ibrahimovic was willing to sell. He did not in any way induce the accused to sell him the drugs. This was more of a mutually agreed transaction between them. Also, the journalist had no malicious vendetta against the accused. He has testified before the court that the accused had been seen at other parties, both using and distributing hallucinogens and psychotropic substances 63 . And an enquiry had been conducted against him earlier in this connection, not by the government but by his own company Breathe well in 2009 64 to which he owns in the tape. It is humbly contended that the test should not be that of the supposed intention of the government
62 63 64
791 F.2d 1263 (1986 U.S. App. Fact sheet Ibid
20
or of the creative activity of the agent, but whether such conduct falls below the proper standard for
the exercise of Governmental power.
Issue 4: This is not a case of contempt of court, the Pokaranian Times Inc. and Torresnik Today merely reported the merits of the case, which does not constitute contempt. Torresnik Today and Polkranian Times both reported the incident that happened unerringly. They were merely exercising their right to freedom of speech and expression, by letting the public know about the proceedings of the case. 65 The mere newspaper write up raising the grievance and giving the opinion does not by itself amount to trial by media. The right to speech and expression envisaged under the Indian constitution also includes right to express the opinion in media. The times have changed and the media has very active role to play in the country. There are cases of more heineous nature and of utmost importance wherein the media tries to delve into the areas which the parties litigating may find objectionable. But it would be incorrect to draw the inference that the said thing would amount to trial by media by itself or the court is going to be influenced by such things. 66 Freedom of the media, which is an integral part of freedom of expression, is essential in a democratic society. It is the responsibility of judges to recognize and give effect to freedom of the media by applying a basic presumption in their favor 67 . "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference, and impart information and ideas through any media regardless of frontiers 68 " In Indian Express v. Union of India 69 , it has been held that the press plays a very significant role in the democratic machinery. Freedom of press has three essential elements. They are: 1-Freedom of access to all sources of information 70 2. Freedom of publication, and 3. Freedom of circulation. AP Sen J, (as he then was) described the right to freedom of press as a
65 66 67
Ibid [Nehru Memorial Museum & Library Society v. Dr. N. Balakrishnan 2010 (174) DLT 12] In 1994, a group of 39 distinguished legal experts and media representatives, convened by the International
Commission of Jurists, its Centre for the Independence of Judges and Lawyers, and the Spanish Committee of UNICEF, met for three days in Madrid, Spain.
68 69 70
Universal Declaration of Human Rights, 1948 (1985) 1 SCC 641 M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395.
21
pillar of individual liberty, which has been unfailingly guarded by the Courts. But why the "mother" is acting like a step-mother to judiciary is baffling. In a landmark judgment of the case Maneka Gandhi v. Union of India 71 , the Supreme Court held that the freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad also. In Romesh Thapar v. State of Madras 72 , Patanjali Shastri, CJ observed: Freedom of speech and of the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible. Also, the video clips in question had been telecasted much before the trial had commenced, which tells us that the emphasis was on letting the public know about the happening, rather than the alleged interference with due course of administration. 73 In Cox and Griffiths, Petitioners 74 this court considered a petition to the nobile officium against a finding of contempt made against the petitioners in respect of an article published in the Daily Record newspaper. The report in question, which appeared a week before eleven prisoners faced trial in the High Court of Justiciary, stated that they had been moved from one jail to another under a massive armed police guard, that they were heavily guarded and security was tight, that they were "heavy duty guys" and that they were facing "a lot of heavy charges". The trial judge made a finding of contempt against the duty editor and the reporter. Among the reasons for granting the petition, the court held that although the article might have created a risk of some prejudice to the course of justice, there was no risk of the course of justice being "seriously impeded or prejudiced" and, accordingly, that no contempt of court had occurred. Mr. F. S. Nariman, the noted jurist, had once observed, A responsible Press is the handmaiden of effective judicial administration. The Press does not simply publish information about cases and trials but, subjects the entire Justicehierarchy (police, prosecutors, lawyers, Judges, Courts), as well as the judicial processes, to public scrutiny. Free and robust reporting, criticism and
71 72 73 74
AIR 1978 SC 597 AIR 1950 SC 124. Factsheet 1998 JC 267
22
debate contribute to public understanding of the rule of law, and to a better comprehension of the entire Justice system. It also helps improve the quality of that system by subjecting it to the cleansing effect of exposure and public accountability. One of the objects of a newspaper is to understand the popular feeling and give expression to it, another is to arouse among the people certain desirable sentiments, and the third is the fearlessness to expose popular defects. Reporting of a case by media to the public, and asking their opinion does not amount to contempt of court. In Sushil Sharma v. State (Delhi Administration) & Ors. 75 , has repelled the charge of contempt with respect to media reports based on the charge-sheet praising prosecution witnesses and referring to the public desire to hang the offender as also publishing results of the DNA test results which were part of the police investigation. This Court held that in all these news items press has stated as a matter of fact what has been placed on court record by the prosecution and what is happening in the society after the murder of Naina Sahni. By publishing the news items including reporting of demonstrations, views of some of the people and the evidence filed on record including DNA expert report the press has stated what has come on record. There is no criticism of any of the evidence in any manner. It is more a case of propriety than contempt. In fact people at large have a right to know in order to be able to take part in such like proceedings. The right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age. In Narain Das v. Government of Madhya Pradesh and Ors. and did not amount to contempt. Simply making remarks against in press does not amount to Contempt of Court. On 21st February 2012, the trial judge questioned the prosecutor in such a manner, which suggested that he was skeptical of her case. On 22nd February,2012, the Polkranian Times ran a short editorial, the last line of which read- Will the judge continue to question the prosecutor, or will he do what his conscience tells him to do? 77 This was just a personal remark against the judge. There has been no interference with the course
75 76 77
76
, ruled that an unfavorable
projection of one of the parties in a pending litigation merely affected the reputation of that party
1996 Crl. LJ 3944 AIR 1974 SC 1252 Factsheet
23
of administration, which is an essential ingredient to constitute a contempt of court. Lord Viscount Dilhorne in Attorney-General v. B.B.C 78 : It is sometimes asserted that no judge will be influenced in his judgment by anything said by the media and consequently that the need to prevent publication of matter prejudicial to the hearing of a case only exists where the decision rests with laymen. This claim to judicial superiority over human frailty is one that I find some difficulty in accepting. Every holder of a judicial office does his utmost not to let his mind be affected by what he has seen or heard or read outside the court and he will not knowingly let himself ne influenced in any way by the media, nor in my view will any layman experienced in the discharge of the judicial duties. Nevertheless, it should, I think, be recognized that a man may not be able to put that which he has seen, heard or read entirely out of his mind and that he may be subconsciously affected by it. Lord Salmon in Attorney-General v. BBC: I am and always have been satisfied that no judge would be influenced in his judgment by what may be said by the media. If he were, he would not be fit to be a judge. In Pennekamp v. Florida 79 in which the United States Supreme Court observed: If men, including judges and journalists, were angels, there would be no problem of contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is given to the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise. In Reliance Petrochemicals Ltd v. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd and Ors 80 , the broadening and deepening dimensions of the Right to Freedom of expression were recognized 81 . In Re Lonrho Plc and others 82 , and Schering Chemicals Ltd v. Falkman
78 79 80 81
(1981) AC 303 (328 US 331 : 90 L Ed 1295 (1946)) AIR 1989 SC 190 as was the case in S. Rangarajan Vs. P. Jagjivan Ram81, Institutions cannot be hypersensitive about comment even (1989) 2 All ER 1100
pertaining to pending proceedings.

82
24
Ltd. 83 , the possibility of a professional judge being influenced was held to be far more remote. Also, In the United States, because of the broad protections granted by the First Amendment, with extremely limited exceptions, unless the media outlet is a party to the case, a media outlet cannot be found in contempt of court for reporting about a case because a court cannot order the media in general not to report on a case or forbid it from reporting facts discovered publicly 84 . Newspapers cannot be closed because of their content 85 .
PRAYER
(1981) 2 All ER 321 (Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976) .( Near v. Minnesota, 283 U.S. 697 (1931))
83 84 85
25
WHEREFORE, in the light of the issues raised, arguments advanced and authorities cited it is most humbly and peacefully requested that this Honourable Court may adjudge and declare that: 1- The video recorded evidence is competent and admissible in evidence to prove that Dr. Ibrahimovic is guilty of attempting to manufacture and sell a controlled substance i.e. Methamphetamine. 2- Dr. Ibrahimovic is guilty of attempt to manufacture and sell methamphetamine in contravention to Polkranian law. 3- The entrapment defense is applicable in this case as journalist acted as an agent provocateur. 4- The acts of the two media entities, Polkranian Times and Torresnik Today amount to Contempt of Court. Therefore the Judgment of the trial court should be upheld.
All of which is humbly prayed Counsels for the Respondents
26

Dr. Ibrahimovic: Team Code-155

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Dr. Ibrahimovic: Team Code-155

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Team Code-155 ----------------------------------------------------------------------------BEFORE THE COURT OF APPEAL OF POLKRAINE

Legislations and Acts:

4. Is this a case of contempt of court?

Ibrahimovic is guilty of attempting to manufacture and sell a controlled substance:

which information of any description is recorded.

statement is to identify the voice of the speaker. (BMW case)

substantial step necessarily depends on the facts of each case.").

791 F.2d 1263 (1986 U.S. App. Fact sheet Ibid

AIR 1978 SC 597 AIR 1950 SC 124. Factsheet 1998 JC 267

, ruled that an unfavorable

1996 Crl. LJ 3944 AIR 1974 SC 1252 Factsheet

pertaining to pending proceedings.

All of which is humbly prayed Counsels for the Respondents

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