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TMI Blog2016 (7) TMI 1643X X X X Extracts X X X X X X X X Extracts X X X X ..... edure 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 prepare the seizure panchnama at the spot itself. 4. According to the learned Asstt. Solicitor General of India, the above decision never fell for consideration of earlier Bench ie., 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 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. 8. 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." 9. Thus, according to the learned Asstt. Solicitor General, at the time of seizure, at the first instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 141. 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." 142. 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, besid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngth. 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 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 predictabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 150. 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." 13. 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 as to be held per incuriam. 14. 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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