Narcotic Control Bureau vs Haiderbeg Rahimbeg Mirza

Anant S. Dave, J. (Oral)—On 6th June, 2016, this Court took up the case and upon hearing learned advocates for the respective sides, passed the following order :

"Heard learned advocates for the parties.

Mr. R.M. Agrawal, learned advocate, for the respondent has brought to our notice a decision in the case of State of Gujarat v. Jabbirsing Ratansing Indra Rajput [54 (3) GLR 1952] about interpretation of Section 52A read with Section 55 of NDPS Act, 1985, whereby in paras 18, 19, 20 and 21 it is held that in the matter of seizure, the prosecution is required to follow the procedure prescribed under Section 52A of the Act (amended by Amendment Act No. 2 of 1989).

That, Chapter V is about procedure pertaining power to issue warrant and authorisation, power of entry, search, seizure and arrest without warrant of authorisation etc. under Sections 41 and 42 of the Act and Section 52 is about Disposal of persons arrested and articles seized. Section 53 invest officers of certain departments with powers of an in-charge of a police station. However, Section 52A reads as under :

52A. Disposal of seized narcotic drugs and psychotropic substances. - (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.

(2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances of conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of -

(a) certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such Magistrate, photographs of [such drugs, substances or conveyances] and certifying such photographs as true; or

c. allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.

Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence].

Section 53. Power to invest officers of certain departments with powers of an officer-in-charge of a police station.

- (1) The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of Central Excise, narcotics, customs, revenue intelligence [or any other department of the Central Government including para-military forces or armed forces] or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under this Act.

(2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise [or any other department] or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of offences under this Act.

Section 55. Police to take charge of articles seized and delivered. - An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.

There is no doubt, Section 52A was inserted by Act 2 of 1989 w.e.f. 29-5-1989. While, sub-section (1) of Section 52A substituted earlier provision vide S.O. 1183(E), dated 30-4-2014. Thus, question arise whether law laid down by the Division Bench in the above case State of Gujarat v. Jabbirsing Ratansing Indra Rajput reflect correct interpretation about applicability of Section 52A under Chapter V of the Act 1985 at the time of seizure of the contraband is correct interpretation or not is to be considered since the heading of Section 52 is about disposal of persons arrested and articles seized and of Section 52A is about disposal of seized narcotic drugs and psychotropic substances. Having seized articles/contra-bands a question arise about disposal of such contra-bands, for which, procedure is envisaged of preparing inventory and such list of articles, for which, an application is to be made to the Magistrate for the purpose mentioned in (a), (b) and [c] of sub-section (2) of Section 52A. Thus, seizure having affected, first, next stage would be procedure to be followed for disposal of seized articles.

For further argument and production of S.O. 1183(E), dated 30-4-2014, the matter is stand over to 9-6-2016."

Thereafter, on 21st July, 2016, this Court passed the following order, after having heard learned Asstt. Solicitor General of India.

"Heard Mr. Devang Vyas, learned Assistant Solicitor General of India, for Union of India.

Stand over to 22-7-2016, on the point of applicability of Section 52A of the NDPS Act, 1985, in the matter of seizure in the context of law laid down by this Court in the case of State of Gujarat v. Jabbirsing Ratansing Indra Rajput, reported in [54 (3) GLR 1952]."

Apropos Oral Order dated 6th June, 2016, Shri Devang Vyas, learned Asstt. Solicitor General of India for Union of India & Narcotic Control Bureau - appellant in one of the Criminal Appeals, being Criminal Appeal [For Enhancement] No. 1233 of 2014 has addressed the Court at length and relied on decision of Apex Court rendered in case of State of Punjab v. Makhan Chand, 2004 (3) SCC 453 and submitted that the Apex Court in no uncertain terms held that Section 52A(1) of the Narcotic Drugs & Psychotropic Substances Act, 1985 does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances. According to him, even the standing orders and standing instructions issued by the Central Government under Section 52A of the Act are merely intended to guide the officers to see that a fair procedure is adopted by the Officer-in-charge of the investigation. They are not inexorable rules, as there could be circumstances in which it may not be possible for the seizing officer to prepare the panchnama at the spot, if it is a chance recovery, where the officer may not have the facility to prepare the seizure panchnama at the spot itself.

According to the learned Asstt. Solicitor General of India, the above decision never fell for consideration of earlier Bench i.e., Division Bench of this Court, who deliberated and decided the case on the very issue viz. State of Gujarat v. Jabbirsing Ratansing Indra Rajput, 2013 (3) GLR 1952. In addition to the above, according to learned Asstt. Solicitor General, the above case namely State of Gujarat v. Jabbirsing Ratansing Indra Rajput (supra) was decided in context of contentions raised about non-compliance of provisions not only of Section 52A but also Section 55 of the Narcotic Drugs & Psychotropic Substances Act, 1985. Therefore, what is held in Para 18 of the above decision that, "..In the matter of seizure, the prosecution is required to follow the procedure prescribed under Section 52A of the Act..." is not a ratio decedendi and to be treated as not binding since the same is per incuriam, having not considered authority on the very issue and declaration of law by the Apex Court in case of Makhan Chand (supra).

Reliance is placed by learned Asstt. Solicitor General on other decisions of our High Court and Division Bench of Calcutta High Court where Section 52A of NDPS Act came into consideration in one or the other context. In case of Abdul Kader Jusab Sandhi v. State of Gujarat, 2002 (2) GLR 1212, in the context of contention raised by learned counsel for the defence based on Section 102 CrPC which mandates a Police Officer not only to report about the seizure but to produce the contraband material before the Magistrate, the Division Bench of this Court answered in negation the contention about the procedure to be followed under Section 52A which refers to disposal of seized narcotic drugs and psychotropic substances, having regard to the hazardous nature of such substance; including that of its vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, after their seizure. It was further held that, "..disposal of narcotic drugs or psychotropic substances in accordance with Section 52A, for want of seized material before the trial Court, the prosecution will not suffer."

In case of Govinda Prosad Verma v. State, reported in 2004 (4) Cal. H.N. 544, the Division Bench of High Court of Calcutta in Para 43 of its decision, by referring to the legislative impact of Section 52A of the Act in the statute book and recitals in the said section, which the Parliament included in the Act w.e.f. 29th May, 1989, its object and reasons proposed behind bringing such section into the Statute book, it was held that, "... it is simply accentuation of a process in an enquiry or an investigation." Breach of the same, in our view, cannot affect the credibility of the prosecution case and affect its merit once we have found that the appellant have been found in possession of contraband articles which have been tested positive as heroin and he could not account for the same and along with the entire procedure of search and seizure which was quite believable and acceptable to the Court.

Likewise, reference to two other important decisions in case of Mundruddin Wajiruddin Kazi v. State of Gujarat, 2003 (4) GLR 3549; and Tej Bahadur Singh & Anr. v. Narcotic Control Bureau & Anr., 2000 (1) Cal HN 803 interpreting Section 52A of the Act in a different context of actual scenario and held that the provision of Section 52A of the NDPS Act is a mandatory provision, since it was inserted with a definite purpose.

One more decision of our High Court in case of Mahamad Parvezkhan Mahamad Faruqkhan Shaikh v. State of Gujarat, reported in 2006 (2) GLR 925 was relied upon wherein our attention was invited to Para 20 of the judgment where it is held that merely because some mistake has been committed by the officer while maintaining Anamati Register, whether would affect the case of prosecution and on the fact, it was held that, ".. Section 52A of the Act provides as to how seized narcotic drugs and psychotropic substances should be disposed of. Sub-section (2) of the said Section, which would be applicable to the facts of the case, makes it clear that several steps have to be taken and several records have to be maintained before disposal of seized narcotic drugs and psychotropic substances."

Thus, according to the learned Asstt. Solicitor General, at the time of seizure, at the first instance, no such procedure as envisaged under Section 52A of the Act, since the binding decision of the Apex Court and the earlier Division Bench of this Court was neither cited nor fell into consideration in case of Jabbirsing Ratansing Indra Rajput (supra), this Court can very well consider the same and take a view accordingly.

Learned advocate Shri R.M. Agrawal appearing for the defence would contend that this Division Bench of equal strength, however, would be precluded from taking a different view then the one taken in case of Jabbirsingh Ratansing Indra Rajput (supra), and therefore, the case is required to be considered by the Larger Bench.

Before we deal with the contentions of learned advocate Mr. R.M. Agrawal appearing for the defence, it is necessary to consider and examine the issue of per incuriam raised by the learned advocates for the parties.

In Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors., reported in AIR 2011 SC 312, the issue of per incuriam was considered and discussed at length in Paras 139 to 150, which are aptly reproduced thus -

"139. Now we deem it imperative to examine the issue of per incuriam raised by the learned counsel for the parties. In Young v. Bristol Aeroplane Company Limited (1994) All ER 293 the House of Lords observed that ''Incuria'' literally means ''carelessness''. In practise per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The ''quotable in law'' is avoided and ignored if it is rendered, ''in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.

"... In Halsbury''s Laws of England (4th Edn.) Vol. 26 : Judgment and Orders : Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been elucidated as under :

"A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300.)

In Huddersfield Police Authority v. Watson, 1947 KB 842 : (1947) 2 All ER 193; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force."

Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All ER 193 observed that where a case or statute had not been brought to the court''s attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.

This court in Government of A.P. and Another v. B. Satyanarayana Rao (dead) by LRs. and Others, (2000) 4 SCC 262 observed as under :

"The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue."

In a Constitution Bench judgment of this Court in Union of India v. Raghubir Singh, (1989) 2 SCC 754, Chief Justice Pathak observed as under :

"The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court."

In Thota Sesharathamma and another v. Thota Manikyamma (Dead) by LRs. and others, (1991) 4 SCC 312 a two Judge Bench of this Court held that the three Judge Bench decision in the case of Mst. Karmi v. Amru, (1972) 4 SCC 86 was per incuriam and observed as under :

"...It is a short judgment without adverting to any provisions of Section 14(1) or 14(2) of the Act. The judgment neither makes any mention of any argument raised in this regard nor there is any mention of the earlier decision in Badri Pershad v. Smt. Kanso Devi. The decision in Mst. Karmi cannot be considered as an authority on the ambit and scope of Section 14(1) and (2) of the Act."

In R. Thiruvirkolam v. Presiding Officer and Another (1997) 1 SCC 9 a two Judge Bench of this Court observed that the question is whether it was bound to accept the decision rendered in Gujarat Steel Tubes Ltd. v. Mazdoor Sabha (1980) 2 SCC 593, which was not in conformity with the decision of a Constitution Bench in P.H. Kalyani v. Air France, (1964) 2 SCR 104. J.S. Verma, J. speaking for the court observed as under :

"With great respect, we must say that the above-quoted observations in Gujarat Steel at P. 215 are not in line with the decision in Kalyani which was binding or with D.C. Roy to which the learned Judge, Krishna Iyer, J. was a party. It also does not match with the underlying juristic principle discussed in Wade. For the reasons, we are bound to follow the Constitution Bench decision in Kalyani, which is the binding authority on the point."

In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and others, (2001) 4 SCC 448 a Constitution Bench of this Court ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness.

A Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673 has observed that the law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.

A three-Judge Bench of this court in Official Liquidator v. Dayanand and Others, (2008) 10 SCC 1 again reiterated the clear position of law that by virtue of Article 141 of the Constitution, the judgment of the Constitution Bench in State of Karnataka and Others v. Umadevi (3) and Others, (2006) 4 SCC 1 is binding on all courts including this court till the same is overruled by a larger Bench. The ratio of the Constitution Bench has to be followed by Benches of lesser strength. In para 90, the court observed as under :-

"We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grassroots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed."

In Subhash Chandra and Another v. Delhi Subordinate Services Selection Board and Others, (2009) 15 SCC 458, this court again reiterated the settled legal position that Benches of lesser strength are bound by the judgments of the Constitution Bench and any Bench of smaller strength taking contrary view is per incuriam. The court in para 110 observed as under :-

"Should we consider S. Pushpa v. Sivachanmugavelu, (2005) 3 SCC 1 to be an obiter following the said decision is the question which arises herein. We think we should. The decisions referred to hereinbefore clearly suggest that we are bound by a Constitution Bench decision. We have referred to two Constitution Bench decisions, namely, Marri Chandra Shekhar Rao v. Seth G.S. Medical College, (1990) 3 SCC 139 and E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394. Marri Chandra Shekhar Rao (supra) had been followed by this Court in a large number of decisions including the three-Judge Bench decisions. S. Pushpa (supra) therefore, could not have ignored either Marri Chandra Shekhar Rao (supra) or other decisions following the same only on the basis of an administrative circular issued or otherwise and more so when the constitutional scheme as contained in clause (1) of Articles 341 and 342 of the Constitution of India putting the State and Union Territory in the same bracket. Following Official Liquidator v. Dayanand and Others, (2008) 10 SCC 1 therefore, we are of the opinion that the dicta in S. Pushpa (supra) is an obiter and does not lay down any binding ratio."

The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or three judges of this court. These judgments have clearly ignored a Constitution Bench judgment of this court in Sibbia''s case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under section 438 of Cr.P.C. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam.

In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the court doubts the correctness of the judgments by two or three judges, then the proper course would be to request Hon''ble the Chief Justice to refer the matter to a larger Bench of appropriate strength."

After considering and discussing various case laws, the Apex Court found that in case a Bench considering the question of law has either ignored a Constitution Bench judgment or a judgment of the Larger Bench either of the Apex Court or the High Court, the decision rendered by a Bench has to be held per incuriam.

The decisions, as above, particularly in case of State of Punjab v. Makhan Chand (supra) by the Apex Court in no uncertain terms declares that Section 52A of the NDPS Act does not empower the Central Government to lay down the procedure for search of an accused, but it only deals with disposal of the seized narcotic drugs and psychotropic substances. Even the Standing Orders and Standing Instructions issued by the Central Government under Section 52A of the NDPS Act are guidelines to the officers to see that a fair and transparent procedure is adopted by the Officers-in-charge of the investigation. The above decision was neither brought to the notice nor fell for consideration of the Division Bench of this Court in case of State of Gujarat v. Jabbirsing Ratansing Indra Rajput (supra) and to that extent, we have no hesitation in declaring that the observations made therein must be construed to be per incuriam, and therefore, these Criminal Appeals are required to be heard on merits, and accordingly fixed for final hearing on 2nd August, 2016.