TMI Blog2016 (7) TMI 1643X X X X Extracts X X X X X X X X Extracts X X X X ..... 75 of 2015 - - - Dated:- 21-7-2016 - ANANT S. DAVE AND B.N. KARIA JJ. Mr. Kartik V Pandya, Advocate for the Appellant. Mr. Rajesh M Agrawal, Advocate and Mr. VO Joshi, Advocates for the Respondent. ORDER (PER : HONOURABLE Mr. JUSTICE ANANT S. DAVE) 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. Agarwal, 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 authorisiation etc. under Sections 41 and 42 of the Act and Section 52 is about Disposal of persons arrested and articles sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w the application. 4.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, revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id down by this Court in the case of State of Gujarat v. Jabbirsing Ratansing Indra Rajput, reported in [54 (3) GLR 1952]. 3. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, 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. 7. 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 Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atium. 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.71 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. 140. Lord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rat 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. 145. 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. 146. 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. 147. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 149. 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 mention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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