2016 (7) TMI 1643 - HC - Indian Laws

Interpretation about applicability of Section 52A of NDPS Act, 1985 - narcotic drugs and psychotropic substances - HELD THAT - The decisions particularly in case of State of Punjab v. Makhan Chand 2004 (2) TMI 663 - SUPREME COURT 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. There are no hesitation in declaring that the observations made therein must be construed to be per incuriam - these Criminal Appeals are required to be heard on merits, and accordingly fixed for final hearing on 2nd August 2016.

Summary

Issues Involved:
1. Interpretation and applicability of Section 52A of the NDPS Act, 1985.
2. Compliance with procedural requirements under Section 52A and Section 55 of the NDPS Act, 1985.
3. Binding nature and implications of prior judgments, including the concept of per incuriam.

Detailed Analysis:

1. Interpretation and Applicability of Section 52A of the NDPS Act, 1985:
The court examined Section 52A of the NDPS Act, which deals with the disposal of seized narcotic drugs and psychotropic substances. The provision mandates that the Central Government may specify the manner of disposal of such substances by notification in the Official Gazette. The court referred to the decision in the case of State of Gujarat v. Jabbirsing Ratansing Indra Rajput, which held that the prosecution must follow the procedure prescribed under Section 52A during the seizure of contraband. However, the court noted that Section 52A was amended by Act 2 of 1989, and its interpretation needs to be reconsidered in light of subsequent legal developments.

2. Compliance with Procedural Requirements under Section 52A and Section 55 of the NDPS Act, 1985:
The court discussed the procedural requirements under Section 52A, which include preparing an inventory, taking photographs, and drawing representative samples of the seized substances in the presence of a Magistrate. The court highlighted that Section 55 requires the officer-in-charge of a police station to take charge of and keep in safe custody all articles seized under the Act, pending the Magistrate's orders. The court referred to various judgments, including State of Punjab v. Makhan Chand, which clarified that Section 52A does not empower the Central Government to lay down the procedure for the search of an accused but only deals with the disposal of seized substances.

3. Binding Nature and Implications of Prior Judgments, Including the Concept of Per Incuriam:
The court addressed the issue of whether the decision in State of Gujarat v. Jabbirsing Ratansing Indra Rajput was per incuriam, meaning it was rendered in ignorance of a binding precedent. The court referred to several judgments, including Siddharam Satlingappa Mhetre v. State of Maharashtra, which discussed the concept of per incuriam. The court concluded that the decision in Jabbirsing Ratansing Indra Rajput did not consider the binding precedent set by the Supreme Court in State of Punjab v. Makhan Chand, and thus, the observations made in the former case must be construed as per incuriam. Consequently, the court decided that the appeals should be heard on merits, considering the correct interpretation of Section 52A.

Conclusion:
The court concluded that Section 52A of the NDPS Act deals with the disposal of seized narcotic drugs and psychotropic substances and does not prescribe the procedure for their seizure. The decision in State of Gujarat v. Jabbirsing Ratansing Indra Rajput was deemed per incuriam as it did not consider the binding precedent set by the Supreme Court. The appeals were scheduled for final hearing to address the issues on merits.