Mobin vs The State Of Madhya Pradesh
2021 Latest Caselaw 3947 MP

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 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
                     M.Cr.C. No.28804 of 2021
                     Mobin Vs. State of M.P.



Indore, Dated:- 04/08/2021

      Heard through video conferencing.

      Shri Abhishek Rathore, Counsel for the applicant - Mobin S/o

Abdul Rasheed Mansuri.

      Shri Shashwat Seth, Counsel for the respondent/State.

They are heard. Perused the case-diary.

This is the third application under Section 439 of Criminal

Procedure Code, 1973, as he is implicated in connection with Crime

No.01/2019 registered at Police Station Narcotics Cell, District -

Neemuch (MP) for offence punishable under Sections 8/21 and 29 of

N.D.P.S. Act.

The applicant is in custody since 02.01.2019.

Earlier both the bail applications have been dismissed as

withdrawn.

The allegation against the applicant is that he was found in

possession of 260 grams of heroin.

Counsel for the applicant submits that the applicant has been

falsely implicated in the case and as has been held by the Supreme

Court in the case of Arif Khan alias Agha Khan Vs. State of

Uttarakhand reported as (2018) 18 SCC 380 the mandatory

provisions of Section 50 of N.D.P.S. Act has not been followed as the

applicant was not examined in the presence of a Gazetted Officer or a

Magistrate.

Counsel for the applicant has drawn the attention of this Court

to a memo prepared under Section 50 of N.D.P.S. Act to substantiate

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.28804 of 2021 Mobin Vs. State of M.P.

his argument.

Counsel for the respondent/State, on the other hand, has

opposed the prayer and it is submitted that so far as the decision

rendered by the Hon'ble Supreme Court in the case of Arif Khan

alias Agha Khan (supra) is concerned, the aforesaid case has already

been considered by the coordinate benches of this Court in Cr.A.

No.799 of 2016 as also in Cr.A. No.5610 of 2019 wherein the

aforesaid order has already been distinguished. In the case of Arif

Khan alias Agha Khan (supra) the Supreme Court has held that the

contraband "charas" allegedly recovered from the appellant, was not

made in the presence of any Magistrate/Gazetted Officer, which is the

non-compliance of Section 50 of the N.D.P.S. Act and this Court, in

both the aforesaid decisions has distinguished the aforesaid case.

In Criminal Appeal No.799 of 2016, this Court, while discussing case

of Arif Khan alias Agha Khan (supra) has distinguished the same as

under:-

"11. In the Judgment of Arif Khan (supra), the Constitution Bench judgment of Vijaysingh (supra) and Baldev Singh (supra) have been discussed.

12. In case of diversion of opinion between the larger and smaller Bench of Hon'ble the Supreme Court, the Supreme Court in the case of Union of India vs. K.S. Subramanian [AIR 1976 SC 2433] observed as under:-

"The proper course for a High Court, in such a case, is to try to find out and follow the opinions expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court. That is the practice followed by this Court itself. The Practice has now crystallized into a rule of law declared by this Court."

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.28804 of 2021 Mobin Vs. State of M.P.

13. In Bharat Petroleum Corporation Limited vs. Mumbai Shramik Sangh [(2001) 4 SCC 448] a five Judge Constitution Bench of Supreme Court observed as under:- "We are of the opinion that while it is true that if a subsequent smaller bench of the Supreme Court has referred to a larger bench of the Supreme Court we can not ignore the smaller bench decision, but at the same time we have to interpret the smaller bench decision in a manner so as to make it consistent with the larger bench decision of the Supreme Court. Surely a smaller bench decision can not overrule a larger bench decision of the Supreme Court."

16. This Court will be required to adhere to the directions provided in the judgment of Vijaysingh's case (supra). Acting beyond such directions would be running contrary to judicial discipline, decorum and propriety."

So far as the decision rendered by this Court in Criminal

Appeal No.5610 of 2019 is concerned, this Court in para 22 has held

as under:-

"22. In the case of Innocent Ozoma (supra), Delhi High Court has considered the judgment of Supreme Court in the case of Arif Khan and Ashok Kumar Sharma (supra). The Delhi High Court considered its previous judgment delivered in Criminal Appeal No.676/17 (Ramgopal vs. State) decided on 16.10.2018. It was held that in Arif Khan (supra) on the facts of that case, the Court found that mandatory procedure under Section 50 of the Act had not been satisfied. The said case was peculiar on its facts and, therefore, is distinguishable from the facts of the present case. Since in the case in hand, the prosecution was able to establish its case through the testimony of the witnesses and documents, no benefit of Arif Khan (supra) was given. The Delhi High Court referred this previous judgment with profit in Innocent Ozoma (supra). Hence, Innocent Ozoma was not found to be innocent and his appeal was dismissed." In view of both the aforesaid decisions, this Court is of the

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.28804 of 2021 Mobin Vs. State of M.P.

considered opinion that reliance placed by the Counsel for the

applicant in the Judgment of Arif Khan (supra) is of no avail to the

applicant. Thus, in the facts and circumstances of the case where

commercial quantity of heroin has been seized from the applicant and

prima facie there appears to be compliance of Section 50 of N.D.P.S.

Act, this Court is not inclined to accept the contentions raised by

Counsel for the applicant.

Thus, the application stands dismissed.

(SUBODH ABHYANKAR) JUDGE Pankaj Digitally signed by PANKAJ PANDEY Date: 2021.08.09 17:34:08 +05'30'