ILYAS KHAN - INAYATKHAN BISMILLAH KHAN PATHAN V. UNION OF INDIA

SCR.A/2909/2014

AI Insights

The case involves Ilyas Khan, an accused in a NDPS case, who challenged the jurisdiction of the Narcotics Control Bureau (NCB) to investigate and initiate proceedings against him. The applicant argued that the NCB, being under the Ministry of Home Affairs and not the Ministry of Finance, lacked the legal authority to act under the NDPS Act. The NCB countered that it was empowered to act under the NDPS Act following amendments to the Allocation of Business Rules in 2003. The court examined these legal frameworks and found that the NCB had the requisite authority to conduct the investigation and proceedings.

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 721980 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 19-06-2015
• Assessment Year: misc
• Other Referred Cases: State v. Kulwant Singh (AIR 2003 SC 1599), Roy V.D. v. State of Kerala (2000(8) SCC 590)
• Laws Referred To: Narcotic Drugs and Psychotropic Substances Act, 1985
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: DEVANG VYAS; K T DAVE; PUBLIC PROSECUTOR
• Assessee Lawyers: HASHIM QURESHI; EKRAMA QURESHI
• Keywords: Constitutional challenge; Jurisdiction; Narcotics Control Bureau; NDPS Act; Illegal investigation
• Section: 41(2); 226; 4(3); 42(1); 36(a)

Judgement Text

"R/SCR.A/2909/2014 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 2909 of 2014 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? NO ========================================================== ILYAS KHAN - INAYATKHAN BISMILLAH KHAN PATHAN....Applicant(s) Versus UNION OF INDIA & 3....Respondent(s) ========================================================== Appearance: MR HASHIM QURESHI, ADVOCATE for the Applicant(s) No. 1 MR. EKRAMA H QURESHI, ADVOCATE for the Applicant(s) No. 1 MR DEVANG VYAS, ADVOCATE for the Respondent(s) No. 1 - 2 MR KT DAVE, ADVOCATE for the Respondent(s) No. 3 PUBLIC PROSECUTOR for the Respondent(s) No. 4 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 19/06/2015 Page 1 of 14 R/SCR.A/2909/2014 CAV JUDGMENT CAV JUDGMENT 1. By this writ­application under Article 226 of the Constitution of India, the applicant­accused of an NDPS case has prayed for the following reliefs:­ “A) Be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ direction quashing and setting aside the action taken by the respondent No.3 purporting to be acting under the Home Ministry 9respondent no.2) by holding that the same is having no powers under the Act and relevant notification in force. B) Be pleased to issue a writ of certitorari or writ in the nature of certiorari or any other appropriate writ or direction quashing and setting aside the proceedings initiated against the petitioner as the same are against the provision of law and in not consonance with the ruling laid down by the Apex Court. C) During the pendency and final disposal the further proceedings and investigation my kindly be stayed.” 2. The case of the applicant­accused may be summarized as under:­ 3. The applicant herein is an accused in a NDPS Case No.1/2004 instituted by the respondent No.3 in the Court of the learned Special Judge, Nadiad. The case of the Department is that on 15th July 2003, two persons, namely Anwarbaig @ Raju and Hidayat Khan (brother of applicant), came on a motorcycle at the Sevalia College Bus stand to hand over a bag of “charas” to one Ganibhai of Page 2 of 14 R/SCR.A/2909/2014 CAV JUDGMENT Vadodara, who had come at that place in a Maruti Car. The Officers of the respondent No.3 rushed at the sight and were successful in arresting all the three persons. 4. In the course of the investigation, the name of the present applicant came to be revealed as the main accused. He remained absconding for a period of almost eleven years. The applicant, thereafter, was arrested. He prayed for bail before this Court and the same was refused. 5. He has now come forward with a case that the entire trial is without any authority of law as the respondent No.3 had no jurisdiction to investigate the case. 6. The sum and substance of the challenge is that the respondent No.3 is falling under the Ministry of Home Affairs, Department of Internal Security, instead of Department of Revenue, Ministry of Finance. The respondent No.3 has no legal competence and authority under the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act for short). Therefore, the investigation and proceedings instituted by the respondent No.3 are illegal and unconstitutional. 7. Mr.Ekrama Qureshi, the learned advocate appearing for the applicant, while making Page 3 of 14 R/SCR.A/2909/2014 CAV JUDGMENT submissions placed reliance on the following averments made in the petition:­ “1. By way of the present petition the petitioner has challenged the investigation initiated by Respondent No.3 (Narcotics Control Bureau) which is a subject matter of NCB/AZU/Cr­03/2003, (NDPS case no.2 of 2014) as being illegal, unconstitutional as the said respondent no.3 is not having legal competence and authority under the Narcotic Drugs and Psychotropic Substances Act 1985. As evidence from Pg no.77 and 78 of the petition the respondent no.3 is falling under the Ministry of Home affairs, Department of Internal Security instead of Department of Revenue, Ministry of Finance. Therefore the investigation and proceedings initiated by the respondent no.3 is illegal and unconstitutional and requires to be quashed and set aside. 2. This petition was filed on 18.07.2014 and this Hon’ble Court vide order dated 14.08.2014 (Coram: R.M. Chhaya, J.) directed the respondent Union of India to respond to the petition by next date. Again by order dated 01.10.2014 this Hon’ble Court again directed to Union of India to file a reply on or before 30.10.14. Again by order dated 24.03.2015 the time for reply was given but no reply was filed. And ultimately after almost eight months the reply was handed over by respondent no.3, NCB, on 07.04.2015 to the Hon’ble Court during the course of hearing, and a copy of the same was given to the petitioner on the same day. But no reply by respondent no.1 and 2 comes on record despite repeated orders of this Hon’ble Court as stated above. The reply filed by respondent no.3, NCB, contains a notification which is the amendment carried out in Government of India (Allocation of Business) Rules and by virtue of that it is claimed by the respondent no.3 that they are acting under the Respondent no 2 w.e.f. 18th February 2003 and hence competent to carry out the investigation. It is pertinent to note that they are claiming the competence by solely relying upon the changes made in the Allocation of Business Rules by no other supporting orders issued under the NDPS Act. 3. The section 4(3) of the Narcotic Drugs and Psychotropic Substances Act 1985 provides that the Central Government by order, published in the official Gazette, constitute an authority....The Ministry of Finance, Department of Revenue has constituted the Narcotics Control Bureau vide order dated, dated 17th march 1986. Page 4 of 14 R/SCR.A/2909/2014 CAV JUDGMENT 4. The Central Government i.e. Minstry of Finance, Department of Revenue has notified an order dated 27th September 1989 (pg 85 to the petition), empowering the certain authorities including the Narcotics Control Bureau under the Ministry of Finance, Department of Revenue, Government of India, for filing the complaints relating to the offences under the NDPS Act before the special Court. 5. Reading the above said provisions of the NDPS Act and the notifications stated above, it is crystal clear that there has to be an order empowering the officers of Narcotics Control Bureau to act under the NDPS Act, by the central government which is in this case, Department of Revenue, Ministry of Finance. The respondents have not placed any order, much less any notified order, issued by the Department of Internal Security, Ministry of Home affairs empowering the said officers of respondent no.3 to carry out the investigation or filing the complaint under the NDPS Act. Therefore, the order dated 27th September, 1989 issued by the department of Revenue, Ministry of Finance, being not subsequently suppressed by any other notified order is still in force and thus the respondent no.3 admittedly not being falling under the Ministry of Finance, is not at all competent to act under the NDPS Act and thus the proceedings initiated by it against the present petitioner is required to be quashed and set aside. 6. The respondent no.3 has filed an affidavit at pg 86, in which it has tried to justify its position by annexing a notification dated 18th February 2003 at pg 89 and contending that after the said date certain powers have been transferred from Ministry of Finance to the Ministry of Home affairs. The same is neither any order nor notification issued under the relevant provision of the NDPS Act but merely an amendment in the Government of India (Allocation of Business Rules) 1961. The petitioner humbly submits that the said notification dated 18th February 2003 is of no avail to the respondents on the following counts:­ a) That it is a settled position of law that the rules like Government of India Allocation of business Rules 1961 which are framed under the Article 77 (3) of the Constitution are merely for the administrative convenience of the ministries and for internal working of the government. The same is not and can never be a substitute for statutory duties and mandates. If the NDPS Act requires that an express order notified in the official gazette is required to be issued then it is no defence for the respondents to contend that amendment in the Government of India (allocation of Business Rules) 1961 is suffice. Page 5 of 14 R/SCR.A/2909/2014 CAV JUDGMENT Unless the express orders passed by the Department of Revenue, Ministry of finance are suppressed by subsequent order issued by the Ministry of Home Affairs, Department of Internal Security, the respondent no.3 will have no locus and competenceto carry out the proceedings under the NDPS Act. The order dated 27th September 1989 expressly says “Narcotics Control Bureau under Ministry of Finance”. Therefore to come out from this specific order there has to be an order by Ministry of Home affairs to the effect that “Narcotics Control Bureau under Ministry of Home Affairs”. And no such order being produced by any of the respondents, the respondent no.3 now clearly having no locus, the proceedings initiated by it against the present petitioner is required to be quashed and set aside. It is a settle position of law that when an Act(Statute) requires a particular thing to be done in a particular manner then it must be done in that manner only because an Act is conclusive as to what it says and what it forbids. b) Without prejudice, even if the said notification dated 18th February 2003, is perused, then bare perusal of the same clearly manifests that it do not bestows any powers qua investigation, search and seizure, filing complaints in special courts, under the NDPS Act on the Ministry of Home affairs. It just talks about “all matters relating to Narcotics Control Bureau set up under the Provisions of section 3(3) of the Narcotics Drugs and Psychotropic Substances act 1985......(clause58)”. It not at all talk about powers u/s41, 42, 56 and 36­A of the NDPS Act. c) Clause 59 (at pg90), of the notification dated 18th February 2003, says that “All matters relating to the internatinal conventions, agreements, protocols etc..in respect of illicit traffic in narcotic drugs, phychotropic substances and precursor chemicals which the ministry of home affairs and organizationsunder it are authorosed to deal with except matter allocated to the Ministry of Finance and Company affirs, Department of revenue”. This shows that powers are still reserved with the ministry of finance, department of revenue and the respondents have not clarified in the Court despite expressly being asked by the Hon’ble Court to the Respondents, as to what powers are reserved with Ministry of Home affairs and what with the Ministry of finance under the Allocation of Business Rules. Thus the petitioner humbly submits that such a vague reply filed by the respondent no.3 is of no avail to the respondents. 7. The narcotics control bureau is not an independent authority. It is neither having any perpetual seal of Page 6 of 14 R/SCR.A/2909/2014 CAV JUDGMENT succession not a distinct legal entity. In the case of State v. Kulwant Singh (AIR 2003 SC 1599), the Hon’ble S.C. In para 25 concluded that:­ “25.....All this leads us to conclude that the NCB is merely a wing or branch of Department of Revenue of the Government of India. As we held earlier, it is not constituted as a distinct legal entity, and therefore has no independent existence, except as a branch or wing of the Department of Revenue dealing with matters entrusted to it by the notified order constituting it”. Thus NCB not being an independent distinct legal entity, requires a fresh lease of life and authority if it is no more functioning under the Department of Revenue, Ministry of Finance after 18th February 2003. 8. In the case of Roy V.D. v. State of Kerala (2000(8) SCC 590) (citing from MANU/SC/0693/2000), Hon’ble Apex Court held (para7, 16 and 20) as under:­ “7. The life and liberty of an individual is so sacrosanct that it cannot beallowed to be interfered with except under the authority of law. It is a principle which has been recognized and applied in all civilized countries. In our constitution, Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to aliens. 16.Now, it is plain that no officer other than an empowered officer can resort to section 41(2) or exercise powers under section 42(1) of the narcotic Drugs and psychotropic Substances Act or make a complaint under clause (d) of sub section (1) of section 36­A, of the Narcotic Drugs & psychotropic Substances Act. It follows that any collection of material, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorised officer under section 41(2) of the Narcotic drugs & psychotropic substances Act, lacks inherent sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under chapter IV of the Narcotic Drugs and Psychotropic Substances Act and use of such a material by the prosecution vitiates the trial. 20.....If the proceedings in the instant case are not quashed, the illegality will be perpetuated resulting in grave hardship to the appellant by making him to undergo the ordeal of hardship which is vitiated by illegality and which cannot result in conviction and sentence. It is in our view a fit case to exercise Page 7 of 14 R/SCR.A/2909/2014 CAV JUDGMENT powers under Section 482 of Cr.P.C. to quash the impugned proceedings”. In light of what is stated above, the petitioner humbly submits to this Hon’ble Court that the respondents are unable to meet with the contents of the petition and have failed to produce any single order issued under the NDPS Act which empowers the respondent no.3 to act and function under the aegis and supervision of the Ministry of Home affair, department of Internal Security and thus the petition may please be allowed and the investigation/proceedings initiated by the respondent no.3 against the present petitioner which is now the subject matter of NDPS case no.2 of 2014 in the Court of Hon’ble district and Sessions Judge, Nadiad, be quashed and set aside in the interest of justice.” 8. On the other hand, this application has been vehemently opposed by Mr. Devang Vyas, the learned Assistant Solicitor General of India, appearing on behalf of the respondent Nos. 1, 2, and 3. He submitted that the challenge is totally misconceived and misleading. He submitted that since the applicant herein was absconding for a period of eleven years, his trial was separated from the trial of the other three co­accused. The other three co­accused have already been convicted by the trial Court and their respective appeals are pending before this Court. He has drawn the attention of the Court to an affidavit­ in­reply filed by the independent officer, i.e. NCB, Ahmedabad, on behalf of the respondent No.3. The reply reads as under:­ “3. I say and submit that the present petition is required to be dismissed on the preliminary objection that the petitioner has file this petition under Article 226 and 227 of the Constitution of Page 8 of 14 R/SCR.A/2909/2014 CAV JUDGMENT India for quashing and setting aside the proceedings initiated under the NDPS Act in which the 40.05 kgs charas was seized and all the co accused of the petitioner were convicted after the trial and their appeals are pending before the Hon’ble Division Bench of the Gujarat High Court hence the petitioner who had absconded for long time about 13 years cannot invoke the discretionary powers in such a serious case and this petition my be rejected on this ground alone. It is submitted that one of the co accused is awarded capital sentence. It is further submitted that the petitioner is also facing the 3 cases of the IPC filed by the police which shows the criminal antecedents against him and he is habitual offender and therefore does not deserve any discretionary relief. 4. It is submitted that it is not correct that the respondent no 3 is having no authority of law to initiate proceedings and have wrongly exercised the powers not vested in it as contended by the petitioner. It is submitted that the petitioner is arrested in a case involving commercial quantity under the UDPS Act by the officer of the NCB and by the notification dated 18/8/2003 of the Government of India, Ministry of Home Affairs, the amendment has taken place in the Government of India (Allocation of Business) Rules 1962 and by such amendment under the heading MINISTRY OF HOME AFFAIRS under the sub­heading “ A. DEPARTMENT OF INTERNAL SECURITY “ after entry no.57 entry no.58 was added and hence there is no substance in the contention raised by the petitioner and the petition is meritless and is required to be rejected at the admission stage with heavy cost. The copy of the notification dated 18/02/2003 by the Government of India Ministry of Home Affairs is annexed herewith as “Annexure – R1” to this reply affidavit. 5. it is submitted that the petitioner’s involvement in the case is corroborated by the statement recorded under section 67 of the NDPS Act of the petitioner and as held by the HON’BLE Apex Court the conviction can be based solely on the statement of accused u/s 67 hence there is no substance in the petition which may be dismissed considering the nature of offences which are serious. 6. Under the above mentioned facts and circumstances the petition deserves to be dismissed in the interest of justice and petitioner is not entitled to any relief as per prayers made in the petition.” Page 9 of 14 R/SCR.A/2909/2014 CAV JUDGMENT 9. Having heard the learned counsel for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether the applicant has been able to make out any case as pleaded by him. 10. To appreciate the submission canvassed by the learned counsel appearing for the petitioner, it is necessary for me to look into some of the notifications issued by the Central Government. “Ministry of Finance (Department of Revenue) Order New Delhi, the 17th March, 1986 S.O. 96(E) – Whereas the Central Government considers it necessary and expedient to constitute an authority for the purpose of effectively preventing and combating abuse of narcotic drugs and psychotropic substances and illicit traffic therein; Now, therefore, in exercise of the powers conferred by sub­section (3) of section 4 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby constitutes an authority to be known as the “Narcotics Control Bureau” which shall, subject to the supervision and control of the Central Government and the provisions of this order, exercise the powers and functions of the Central Government for taking measures with respect to the following matters referred to in sub­ section (2) of the said section, namely:­ (1) Co­ordination of actions by various officers, State Governments and other authorities under the principal Act, the Customs Act, 1962 (52 of 1962), the Drugs and Cosmetics Act, 1940 (23 of 1940) and any other law for the time being in force in connection with the enforcement of the provisions of the principal Act. (2) Implementation of obligations in respect of counter­measures against illicit traffic, under :­ Page 10 of 14 R/SCR.A/2909/2014 CAV JUDGMENT (a) this Single Convention on Narcotic Drugs, 1961; (b) the Protocol of 1972 amending the aforesaid Convention; (c) the Convention of Psychotropic Substances 1971; and (d) any other international convention or protocol or other instrument amending an international convention relating to narcotic drugs or psychotropic substances which may be ratified or acceded to by India hereafter. (3) Assistance to the concerned authorities in foreign countries and concerned international organizations with a view to facilitating co­ ordination and universal action for prevention and suppression of illicit traffic in narcotic drugs and psychotropic substances. (4) Co­ordination of actions taken by the Ministry of Health and Family Welfare, the Ministry of Welfare and other concerned Ministries, Departments or organizations in respect of matters relating to drug abuse. 2. The Narcotics Control Bureau shall have its headquarters at New Delhi with five zonal offices at Bombay, Calcutta, Delhi, Madras and Varansi. 3. The Bureau shall be headed by a Director General who will be assisted at the Headquarters and in the zonal offices by such officers as may be appointed by the Central Government from time to time. [No.2/86­F.N. 664/18/86­OPIUM] M.M.SETHI, Add. Secy.” MINISTRY OF FINANCE (Department of Revenue) ORDER New Delhi, the 27th September, 1989 S.O. 763(E):­ In exercise of the powers conferred by clause (d) of sub­section (1) of section 86A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby authorises the officers of and above the rank of Inspector in the Department of Customs, Central Excise, Narcotics, Revenue Intelligence, Central Economic Intelligence Bureau and the Narcotics Control Bureau under the Ministry of Finance, Government of India for filing of complaints relating to an offence under the said Act before Special Courts.” Page 11 of 14 R/SCR.A/2909/2014 CAV JUDGMENT No.1­12014/104/2003NCB Government of India/Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya Copy of the Gazette Notification No.I/22/1/2003­CAB dated the 18 th February, 2003 S.O.193(E) – IN exercise of the powers conferred by clause (3) of article 77 of the Constitution, the President hereby makes the following rules further to amend the government of India (Allocation of Business) Rules, 1961 namely:­ 1. (1) These rules may be called the Government of India (Allocation of Business) (Two hundred and sixty eight Amendment) Rules, 2003. (2) They shall come into force at once. 2. In the Government of India (Allocation of Business) Rules. 1961, in the Second Schedule, (A) Under the heading “MINISTRY OF FINANCE AND COMPANY AFFAIRS (VITTA AUR COMPANY KARYA MANTRALAYA)” under the sub­heading “C DEPARTMENT OF REVENUE (RAJSWA VIBHAG)”, for entries 9, 11 and 15, the following entries shall be substituted respectively, namely:­ “9. All matters relating to cultivation of opium poppy, manufacture of opium derivatives from such opium, sale of such opium and opium derivates and exercise of control thereon 11. All matters relating to international conventions, agreements, protocols etc. in respect of narcotic drugs, psychotropic substances and precursor chemicals which the Department of Revenue and Organizations under it are authorised to deal with except matters allocated to the Ministry of Home Affairs. 15. Subordinate Organizations:­ (a) Income Tax Department; (b) Customs Department; (c) Central Excise Department; and (d) Narcotic Department (excluding Narcotics Control Bureau) (B) Under the heading “MINISTRY OF HOME AFFAIRS (GRAH MANTRALAYA)” under the sub­heading “A. DEPARTMENT OF INTERNAL SECURITY (ANTRIK SURAKSHA VIBHAG)” after entry 57, the following entries shall Page 12 of 14 R/SCR.A/2909/2014 CAV JUDGMENT be added, namely:­ “58. All matters relating to Narcotics Control Bureau set up under the provisions of Section 4(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and co­ordination of all measures for preventing and combating abuse of and illicit traffic in narcotic drugs and psychotropic substances. 59. All matters relating to international conventions, agreements, protocols, etc. in respect of illicit traffic in narcotic drugs, psychotropic substances and precurso chemicals which the Ministry of Home Affairs and Organisations under it are authorized to deal with except matters allocated to the Ministry of Finance and Company Affairs. Department of Revenue”. 11. The notification dated 18th February, 2003 makes it abundantly clear that matters relating to illicit traffic in NDPS Act are to be dealt with by the Ministry of Home Affairs and Organization. 12. I am not impressed by the submission of the learned counsel appearing for the applicant that the necessary changes effected in the allocation of business rules would not save the situation in the absence of any supporting orders issued under the NDPS Act. The submission that there has to be an order empowering the officer of the Narcotics Control Bureau under the NDPS Act by the Central Government is too technical. 13. It is true that the NCB is no longer functioning under the Department of Revenue, Page 13 of 14 R/SCR.A/2909/2014 CAV JUDGMENT Ministry of Finance after 18th February 2003, but the amendment in the Government of India (Allocation of Business) Rules, 1961 makes the picture abundantly clear. Therefore, it is not necessary to confer specific powers relating to investigation, search and seizure, filing complaints in special courts under the NDPS Act on the Ministry of Home Affairs. 14. The application, being devoid of any substance, the same deserves to be rejected and is hereby ordered to be rejected. Notice is discharged. (J.B.PARDIWALA, J.) Manoj Page 14 of 14 "