+ M.D.

University,Rohtak,2010, Summer Intra-class Moot Court Competition

PROPOSITION

Robert smith v. State of Maharashtra

with
Ram Singh Sabharwal v. Union of India & Anr.
with
XYZ Party v. State of Maharashtra & Anr.

1. Robert smith is a citizen of Netherlands. He used to run a drug racket whereby he smuggled narcotic
drugs such as Opium and Hashish into Netherlands. Robert himself was a habitual drug consumer;
although his consumption was limited to ‘soft drugs’ allowed by the Dutch Drugs Policy. Robert is
the son of John, a political leader in Netherlands, who had been elected as the Mayor of Amsterdam
in 2001. John was very popular in Netherlands, the reason being that he had played a vital role in
harmonizing relations between the Christian and Muslim communities, particularly in the aftermath
of the 9/11 terrorist attacks. Due to his efforts, the rift between the two communities was narrowed
and John was praised for making Amsterdam a wonderful city.
2. John’s son Robert was a constant problem for his father. In 2002, Robert was arrested by the Dutch
Police for committing an offence under Article 2(A) of the Dutch Opium Act, 2002 whereby he
tried to smuggle 20 Kgs. of Opium and 25 Kgs. of Hashish into the Dutch territory. He was
convicted and sentenced under Article 10 of the said Act and was sentenced for 2 years of
imprisonment. The maximum penalty prescribed under Article 10 was that of 12 years. However,
due to John’s considerable influence, as well as the fact that it was Robert’s first offence under the
Opium Act, the court was inclined to award him a lesser sentence.
3. On his release from prison in 2004, Robert was treated shoddily by John due to his indulgence in
drugs and his subsequent imprisonment. Consequently, Robert left Netherlands and went to
Malaysia. John, who had been highly active in his public life, was about to contest the 2006
elections for the Prime Minister’s post as a candidate of the Democrat Party. Another Democrat
Party candidate by the name of Peter was opposing John’s candidature due to Robert’s involvement
in criminal activities. However, considering John’s impeccable credentials as well as the fact that
Robert’s case was over, the Democrat Party chose John as their candidate.
4. In Malaysia, Robert smith had once again engaged in the narcotics business. On 12th December, 2005
he tried to smuggle 30 Kgs. of Opium and 25 Kgs. of Hashish from Malaysia to India. He was
arrested by Indian Custom Officials along with officials from the Narcotics Control Bureau
[“NCB”]. He was prosecuted under Section 31A of the Narcotic Drugs and Psychotropic Substances
Act, 1985 [“NDPS Act”]. The news that John’s son had been arrested for an

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offence carrying Capital Punishment (death sentence) was given wide coverage by all Dutch news-
channels and was the front page headline in many Dutch newspapers.
5. Due to the controversial arrest of Robert smith, the Democrat Party chose Peter as their Prime
Ministerial candidate instead of John. However, an arrangement was worked out between Peter and
John as a result of which John continued to support Peter. Peter won the 2006 elections and became
the Prime Minister of Netherlands.
6. In India, the prosecution of Robert smith progressed. Considering that it was a subsequent offence of
import of drugs (as Robert had already been convicted once under Dutch law), Robert was awarded
death sentence under section 31A of the NDPS Act on 30th August, 2006. Aggrieved by the said
decision of the Special Tribunal, Robert filed an appeal before the Bombay High Court on 10th
September, 2006.
7. In the meantime, in return for John’s support during the 2006 elections, Peter Belkende appointed
John as Netherlands’ Ambassador to India on 15th September, 2006. The Indian Government
accepted the appointment of John as the Head of the Mission. The Dutch Embassy in India declared
that the appointment of John would be treated retrospectively with effect from 5th November, 2005
as no Ambassador had been appointed since then. The said stipulation was also approved by the
Indian Government. In pursuance of the Ambassador’s power to appoint members of the Mission,
John appointed Robert smith as a member of the Dutch Embassy on 30th September, 2006 with
retrospective effect from 5th November, 2005.
8. In appellate proceedings before the Bombay High Court, Robert smith pleaded that he was a member
of the Netherlands Mission with effect from 5th November, 2005, hence due to diplomatic immunity
he could not have been prosecuted in India. Moreover, Netherlands had abolished the death penalty;
hence Robert contended that he could not have been prosecuted in India for a death penalty offence.
On 3rd December, 2006, the Bombay High Court after considering all the contentions of Robert
upheld the decision of the Special Tribunal and confirmed his sentence. The High Court stated that
Robert’s appointment as a member of the Dutch Embassy was a colorable exercise of power in
order to accord protection to a habitual drug offender; hence diplomatic protection under the Vienna
Convention on Diplomatic Relations, 1961 was not applicable. The High Court further stated that
Netherlands was a party to the Single Convention, 1961 and therefore Robert’s conviction as a
habitual drug offender was in conformity with Dutch policy as well. Aggrieved by the Bombay
High Court’s decision, Robert smith filed a SLP before the Supreme Court on 15th December, 2006.
9. Ram Singh Sabharwal is a retired I.P.S. officer residing in Nasik. Sabharwal had recently lost his
wife and two kids in a road accident as a result of his rash driving. Blaming himself for the death of
his family, Sabharwal took to consumption of narcotic drugs to overcome his guilt. However, during
his illustrious career in the Police force, Sabharwal had made a number of adversaries in political
and professional circles, who tipped off the police regarding Sabharwal’s possession and
consumption of narcotic drugs. On 15th June, 2006, when Sabharwal was returning home after
consuming opium, he was arrested by NCB officials. Upon his requisition to be searched by a
Gazetted officer, 50 gms. of opium was found from Sabharwal’s person and 1.5 kgs. of opium was
seized from his vehicle. Consequently, Sabharwal was prosecuted under Section 8 (read with
Section 18) and Section 27 of the NDPS Act.

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10. Sabharwal’s trial started on 15th July, 2006. His bail application was rejected by the Special
Tribunal, and the same was confirmed by the Bombay High Court. However, the Supreme Court
granted bail to Sabharwal imposing certain conditions. Menawhile, Sabharwal had already spent 2
months and 13 days in incarceration. During the course of the trial, Sabharwal admitted to
consuming narcotic drugs and since Sabharwal’s possession of opium was proved beyond doubt, the
Special Tribunal sentenced him for 2 years of rigorous imprisonment under Section 18 of the NDPS
Act and 2 months under Section 27 of the NDPS Act. On 19th October, 2006 Sabharwal filed an
appeal before the Bombay High Court and also filed an application under Section 389 Cr.P.C. The
High Court granted him relief under Section 389 Cr.P.C. However, the High Court refused to
interfere with the Special Tribunal’s decision on merits. Although the High court conceded to the
fact that Sabharwal had a great career and consumed drugs due to personal reasons and as such was
not a threat to society nor had he ever indulged in selling drugs etc., keeping in mind the strict
liability regime operating under the NDPS Act and the objective of the statute, the Court refused to
interfere with the sentence pronounced by the Special Tribunal. On 15th December, 2006, Sabharwal
preferred a Special Leave Petition before the Supreme Court. The said SLP was dismissed at the
preliminary stage itself on 2nd January, 2007 and hence his sentence became final.
11. Meanwhile, it was suggested to John by certain influential politicians belonging to the ruling party
in India that looking at the very strong case against Robert and the stringent provisions of S.31A of
NDPS Act, it was futile to expect relief from the Supreme Court. He was advised to file a mercy
petition before the President of India, in which case, these influential leaders may play a role.
Therefore, John filed a mercy petition before the President of India on 5th January, 2007. Reading
this news item, Sabharwal also filed a mercy petition before the President of India on the 10th
January, 2007 seeking his kind indulgence.
12. The President of India thus received two mercy petitions – one from John and the other from
Sabharwal. He referred both the matters to Council of Ministers for their advice. On the basis of the
advice of Council of Ministers, the President granted Robert full pardon and the mercy petition of
Sabharwal was rejected. Both the orders were declared on the 1st of June, 2007. The news that was
coming off-the-record in newspapers was that Robert was granted pardon because John had used his
political clout to the maximum. John’s pardon became a source of daily news and various channels
reported that drug trafficker had been saved by the President of India.
13. At this stage, the Supreme Court noted that the SLP filed by Robert smith on 15th December, 2006,
which had been kept pending till the President’s order was released, had now become infructuous.
At the same time, the Court also observed that the case, nonetheless, involved certain important
questions of law. Therefore, on 3rd June, 2007 the Court declared the SLP filed by Robert as
admitted and to be posted for hearing on merits [Appeal (Criminal) No. 263/07].
14. In the interim, claiming that the President had acted arbitrarily in granting full pardon to a drug
trafficker like Robert smith and rejecting his petition, Sabharwal filed a writ petition before the
Supreme Court of India on 10th June, 2007 [Writ Petition No. 169/07]. Sabharwal contended that
the President did not exercise the constitutional powers granted to him properly. The Court clubbed
this writ with the above matter and directed a rule nisi to be issued to the Union of India and Robert
smith.

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15. Meanwhile, the ABC party, which Sabharwal had supported during his stint as an I.P.S. officer,
came to power in the Maharashtra Assembly Elections. Sabharwal approached the party chief
through a friend of his who was a political leader. On assurance from the political leader, Sabharwal
applied for clemency to the Governor on 10th July, 2007, in spite of his mercy petition being rejected
by the President and his writ pending in the Supreme Court. This time, his petition was successful
and the Governor granted him full pardon. In a short order issued by the Governor, the Governor
cited Sabharwal’s past record, the circumstances of his case and good conduct in custody as the
factors weighing in Sabharwal’s favor.
16. The opponents of Sabharwal influenced the XYZ party, the political opponents of ABC party, to
challenge this decision by a writ in the Supreme Court on 20th July, 2007 [Writ Petition No.
432/07]. The Supreme Court issued a similar rule nisi to the State Government and this petition was
clubbed with the previous matters for hearing.
Instructions to Participants:
1. Students appearing “For” shall have to prepare arguments and submit a combined Memorial
on behalf of Robert smith in Appeal (Criminal) No. 263/07; Union of India in Writ Petition
No. 169/07; and XYZ Party in Writ Petition No. 432/07
2. Students appearing “Against” shall have to prepare arguments and submit a combined
Memorial on behalf of State of Maharashtra in Appeal (Criminal) No. 263/07 and Writ
Petition No. 432/07; and Ram Singh Sabharwal in Writ Petition No. 169/07