UNION OF INDIA versus ASHOK KUMAR SHARMA AND OTHERS

[2020] 10 S.C.R. 923

UNION OF INDIA

ASHOK KUMAR SHARMA AND OTHERS

(Criminal Appeal No.200 of 2020)

AUGUST 28, 2020

[SANJAY KISHAN KAUL AND K.M. JOSEPH, JJ.]

Drugs and Cosmetics Act, 1940 – ss.22(1)(d), 32 – Cognizableoffences under Chapter IV – Prosecution and arrest – Held: Inview of s.32 and the scheme of CrPC, Police Officers cannotprosecute offenders in regard to such offences – Only the personsmentioned in s.32 are entitled to do the same – Police Officercannot register FIR u/s.154, CrPC, investigate such offences underCrPC – In view of provisions of s.22(1)(d), an arrest can be madeby Drugs Inspector w.r.t such offences without any warrant andotherwise treating it as cognizable offence – Further directionsissued – Code of Criminal Procedure, 1973 – s.154 – Constitutionof India – Arts.142, 21, 22(1), (2).

Drugs and Cosmetics Act, 1940 – s.32, 18(a)(i), 27 – FIR foroffences u/ss.18(a)(i), 27 against respondent-owner of medical shop– Quashed by High Court holding that s.32 being the mechanismfor prosecuting offences must be scrupulously observed and noFIR can be registered under CrPC – Held: Impugned judgmentupheld – Code of Criminal Procedure, 1973.

Drugs and Cosmetics Act, 1940 – Object of – Held: 1940Act purports to achieve the object of regulating the import,manufacture, distribution, sale of drugs and cosmetics.

Drugs and Cosmetics Act, 1940 – Chapter III, IV, IV-A, V;ss.3(b), 3(e), 13, 18, 21, 22-27, 27A, 28, 28A, 28B, 29, 30-32, 32B,33H, 33M, 36, 36A, 36AB, 36AC, 36AD – Scheme of the Act –Discussed.

Code of Criminal Procedure, 1973 – Chapters V, XI, XII, XIV,XV, XVI – ss.4(2), 41, 154-162, 167, 169, 170, 173, 177, 178, 190,193, 195, 198A, 199, 200, 202-204, 207-209 – Interplay betweenprovisions of CrPC and 1940 Act – Discussed – Drugs and Cosmetics

AAct, 1940 – ss.22, 32, 34AA, 36AC – Drugs and Cosmetics Rules –rr.49, 51, 52.

Code of Criminal Procedure, 1973 – s.5 – Purport of – Held:Purport of s.5 is that if any special law or local law for the timebeing in force contemplates any special jurisdiction or power orBany special form of procedure, unless something contrary is found,it is the provisions of the special law or the local law which wouldprevail.

Drugs and Cosmetics Act, 1940 – s.2 – Purport of – Discussed– Dangerous Drugs Act, 1930 – Code of Criminal Procedure, 1973.

Drugs and Cosmetics Act, 1940 – Chapter IV, s.32 – Held:s.32 declares that prosecution under Chapter IV can be institutedonlyby an Inspector, any gazetted officerof Central Governmentor State Government authorised in writing by general or specialorder, the person aggrieved and recognised consumer associationDwhether such person is member of that association or not.

Drugs and Cosmetics Act, 1940 – Cognizance of offences –Comparison between s.32, 1940 Act and s.190, CrPC – Discussed– Code of Criminal Procedure, 1973 – s.190.

Code of Criminal Procedure, 1973 – Chapters XV, XVI –Held:EChapters XV and XVI must be followed in regard to even offencesfalling under Chapter IV, 1940 Act – Drugs and Cosmetics Act,1940 – Chapter IV.

Code of Criminal Procedure, 1973 – s.202(1), (2) – Effect of– Discussed.F

Drugs and Cosmetics Act, 1940 – Cognizable offences underChapter IV – Duty of police officer u/s.154, CrPC irrespective ofimpact of territorial jurisdiction – Discussed – Code of CriminalProcedure, 1973 – s.154.

Code of Criminal Procedure, 1973 – s.170 – Requirement forGinvoking – Held: Cardinal requirement to invoke s.170 is availabilityof power with the Magistrate to take cognizance upon policereport – This key requirement is absent in case of an offence fallingu/Chapter IV, 1940 Act– Drugs and Cosmetics Act, 1940.

Drugs and Cosmetics Act, 1940 – s.22 – Powers of inspector– Discussed.

Drugs and Cosmetics Act, 1940 – s.36AC – Held: Perusal ofs.36AC makes it clear that arrest is contemplated under the Act –Conditions have been imposed for grant of bail as enacted in s.36AC.

Code of Criminal Procedure, 1973 – Power of arrest and bailunder – Chapters V, XXXIII; ss.41, 41A, 41B, 41D, 42, 43, 436,437, 439 – Discussed – Code of Criminal Procedure (Amendment)Act, 2008.

Drugs and Cosmetics Act, 1940 – Offences u/Chapter IV notfalling u/s.36AC – Arrest – Held: In relation to such offences, thepower of arrest would depend upon the provision in the Scheduleto the CrPC – Code of Criminal Procedure, 1973.

Drugs and Cosmetics Act, 1940 – s.34AA – Arrest not groundfor visiting delinquent Officer with penalty – Held: There is aresiduary power in s.34AA and it would cover any act.

Drugs and Cosmetics Act, 1940 – Arrest by Drugs Inspectors– Requirement of reporting – Held: Drugs Inspectors must not onlyreport the arrests, as provided in s.58, CrPC, but also immediatelyreport it to their superior Officers – Code of Criminal Procedure,1973 – s.58.

Dismissing the appeal, the Court

HELD: 1.1 ANALYSIS

The Drugs and Cosmetics Act, 1940 (“the Act”) purportsto achieve the object of regulating the import, manufacture,distribution and sale of drugs and cosmetics. The word Drugshas been defined in Section 3(b). Section 3(e) defines Inspector.Chapter III contains provisions which provide for deemingdefinitions of misbranded drugs, adulterated drugs, spuriousdrugs, misbranded cosmetics and spurious cosmetics for thepurpose of Chapter III. Section 13 provides for offences arisingout of imports. Chapter IV falls under the chapter heading“Manufacture, Sale and Distribution of Drugs and Cosmetics”.Interestingly, misbranded drugs, adulterated drugs, spuriousdrugs, misbranded cosmetics and spurious cosmetics, adulteratedcosmetics are defined by provisions found in Chapter IV for the

Apurpose of Chapter IV. Section 18 contemplates that from suchdate as may be fixed by the State Government, manufacture forsale or distribution, or to sell, or stock or exhibit or offer for saleor distribution of drugs misbranded, adulterated, spurious drugsand cosmetics inter alia are prohibited. It is necessary to noticethe rules relevant in this regard. Rule (49) deals with qualificationsBof Inspectors. Rule (51) deals with duties of Inspectors in regardto sale. Rule (52) deals with duties of Inspectors in regard tomanufacturer. Section 22 deals with the powers of the Inspector.Section 23 provides for the procedure to be followed by theInspector. It includes the tendering of fair price when sample isCtaken of drug or cosmetic under the Chapter. There are variousother provisions regarding the procedure to be followed by theInspector which includes seizure of record/ register, documentsor other material objects and the need to notify judicialMagistrate [Section 23(6)]. Section 27 provides for penalty formanufacture, sale etc. of drug in contravention of Chapter IV.DSections 27A, 28, 28A, 28B and 29 provide for other offences.Section 30 contemplates penalty in the case of subsequentoffences. Section 31 deals with confiscation. Section 32B providesfor compounding of certain offences. [Paras 10-15][958-B-C, E-G; 959-D-E; 960-B, H; 961-E-F; 963-E-G; 966-B-C]

E1.2 Chapter IV-A provides for “Provisions relating toAyurvedic, Siddha and Unani Drugs”. It also contains provisionsfor the purpose of Chapter IV-A dealing with deemed definitionsof Misbranded drugs, Adulterated drugs, Spurious drugs and arecreated offences. Section 33G provides for appointment of

FInspectors by the Central Government or the State Government.Section 33H makes the provision of Section 22,23,24 and 25 andthe rules, if any, thereunder applicable in respect of Ayurvedic,Siddha and Unani drugs. The last Chapter of the Act is ChapterV. It bears the Chapter heading “Miscellaneous”. Section 36

declares that any Metropolitan Magistrate or Judicial MagistrateGof First Class may pass sentence in excess of the powers underthe CrPC. Section 36A provides that certain offences are to betried summarily. Section 36AB provides for Special Courts. Itdeclares that the Central Government or the State Governmentin consultation with the Chief Justice of the High Court, shall,Hfor certain offences designate one or more Court of Sessions as

Special Court or Special Courts. Sub-section (2) provides thatthe Special Court may try an offence other than the offencescovered by sub-section (1) which may be charged against theaccused at the same trial. Section 36 AD is also relevant whichprovides for application of Code of Criminal Procedure, 1973 toproceedings before Special Court. [Paras 16-18][966-G-H; 967-C-D; 968-E-F]

2.1 RELEVANT PROVISIONS OF THE CRPC

Section 2(a) defines “bailable offence” as offence shown assuch in the First Schedule, or which is made bailable under anyother law for the time being in force. “Non-bailable offence”means any other offence. ‘Cognizable offence’ is defined in Section2(c). Section 2(d) defines ‘complaint’. ‘Police report’ is definedin Section 2 (r) as meaning report forwarded by police officerto Magistrate under sub-section (2) of Section 173. ChapterXII comes under the heading ‘Information to the Police and theirPowers to Investigate’. Section 154 inter alia provides that everyinformation relevant to the commission of cognizable offencegiven orally to an officer in charge of Police Station shall bereduced to writing by him or under his direction, and be readover to informant. Every such information whether given in writingor reduced to writing as aforesaid shall be signed by the persongiving it. The substance of the same is to be entered in book tobe kept by such officer in such form as may be prescribed. Section155 deals with information as to non-cognizable cases and themanner of investigation of such cases. No police officer caninvestigate non-cognizable offence without the order of theMagistrate having power to try such case or commit such casefor trial. [Paras 19-23][969-C, E; 970-A, E-F]

2.2 Section 157 provides for Procedure for Investigation.The limitations for the use of the statement given under Section161 are spelt out in Section 162. Section 173 provides for thereport to be given on completion of investigation. Chapter XIVdeals with the “Conditions requisite for Initiation of Proceedings”.Section 190 provides for Cognizance of offences by Magistrates.Chapter XV deals with Complaints to Magistrates.Chapter XVIcomes under the chapter heading “Commencement ofProceedings before Magistrates”. Section 204 deals with “Issue

Aof Process” in case where the Magistrate taking cognizance isof the view that there is sufficient ground for proceeding in thematter. It may also be relevant to notice part II of the FirstSchedule to the CrPC. It must be remembered that cognizableoffence has been defined in terms of the classification of theoffences under the First Schedule. The first part of the FirstBSchedule deals with offences under the Indian Penal Code. Thesecond part, as it were, deals with classification of offences againstother laws. Section 4(2) of the CrPC declares that all offencesunder any law other than the IPC shall be investigated, inquiredinto and tried and otherwise dealt with according to the CrPC.CThis is however, subject to any enactment for the time being inforce which provides otherwise in the matter of, the manner orplace of investigation inter alia in regard to offences under anylaw other than the IPC. The purport of Section 5 is this: If anyspecial law or local law for the time being in force contemplatesany special jurisdiction or power or any special form of procedureDprescribed, unless there is something to the contrary, to be found,it is the provisions of the special law or the local law which wouldprevail. [Paras 24-28][971-C-D, G; 972-E-F; 973-D-F]

3. IMPACT OF SECTION 2 OF THE ACT

ESection 2 of the Act declares that the provisions of the Actshall be in addition to and not in derogation of the DangerousDrugs Act 1930 and any other law for the time being in force. Asfar as Section (2) of the Act is concerned if the attempt of theappellant is to contend that it imports the provisions in CrPCwhich tends to overwhelm, in particular, any special procedureFprovided under the Act, the Court has no hesitation in repellingthe same. The purport of Section 2 appears to be that Legislatureintended to keep alive the provisions of the Dangerous DrugsAct, 1930. It would continue to hold sway despite the enactmentof the Act. If there are any other provisions of cognate laws dealingGwith the subjects dealt with by the Act, the operation of thoseActs was to be preserved. The Act does not provide for anyexpress repeal of any enactment. [Para 29][973-G-H; 974-A-B]

4.1 SECTION 32 OF THE ACT

Section 32 of the Act falls in chapter IV. Inspectors areappointed by the Central Government or the State Governmentfrom persons possessing prescribed qualifications under anotification. Section 21 contemplates prescribing under rules thepowers which may be exercised by the Inspectors apart from theduties which may be performed by him inter alia. Section 22 ofthe Act provides for power of search by the Inspectors. Theyhave power to inspect any premise, take samples, powers ofsearch, examine any record, register, material object and seizethem. The Legislature has undoubtedly applied the provisions ofthe CrPC in regard to searches under the Act. Section 23elaborately provides for procedure to be adopted by Inspectors.[Para 30][974-C-D]4.2 Section 32 falling under section heading ‘Cognizanceof offences’ declares, in unambiguous words, that prosecution,under Chapter IV, can be instituted onlyby (1) an Inspector (2)any gazetted officerof the Central Government or StateGovernment authorised in writingby the respective Governmentby general or special ordermade in this behalf by thatGovernment (3) the person aggrieved (4) recognised consumerassociation whether such person is member of that associationor not. Section 32 further proclaims that unless it is otherwiseprovided, no court inferior to court of session shall try an offencepunishable under Chapter IV. Section 32(3) makes it clear thatnothing in chapter IV would stand in the way of the person beingprosecuted against under any other law for any act or omissionwhich constitutes an offence against this Chapter. Section 32was substituted by Act 22 of 2008. It will be noticed at once thatSection 190 of the CrPC also has title ‘Cognizance of Offenceby Magistrate’. Cognizance under Section 190 is contemplatedin three different modes. They are - (1) complaints of factsconstituting such offences, (2) police report of such facts, (3) uponany information received from person other than Police Officeror upon court being possessed of knowledge about thecommission of the offence. In other words, where the court takescognizance suo motu. comparison between Section 32 of theAct and 190 of the CrPC dealing with cognizance of offences,

Amakes it abundantly clear that the Law Giver has provided fordistinct modes in regard to prosecuting of the offences under thegeneral law, viz., the CrPC and the special provision, as containedin Section 32 of the Act. Section 193 of the CrPC provides forCognizance of offences by Courts of Session. Section 195prohibits the Court from taking any cognizance of the offencesBmentioned therein except on the complaint in writing by thepersons named therein. Section 198A and Section 199 likewisepermit the courts to take cognizance only upon the complaintmade by the persons mentioned therein. Similarly, Section 199taboos cognizance of offence of defamation except on theCcomplaint made by some aggrieved person. Section 36AD of theAct applies the provisions of the CrPC except where it isotherwise provided in the Act in regard to the proceedings beforethe Special Court and the Special Court is deemed to be the Courtof Sessions and the person conducting the prosecution is deemedto be the Public Prosecutor. No doubt, the proviso empowersDthe Central Government or the State Government to appoint forany case or class or group of cases, Special Public Prosecutor.The Scheme of the Act must be borne in mind when Section 32,which provides, inter alia, that an Inspector can set the ball rolling,is considered. The Inspectors, under the Act, are to possess theEprescribed qualifications. The qualifications bear nexus withthe performance of the specialised duties which are to beperformed under the Act. Apparently, knowledge about the drugsand cosmetics goes long way in equipping them to perform theirmultifarious functions. Section 22 clothing the Inspector withpowers must also be viewed thus in the context of the legislativeFvalue judgment that complaint is to be moved by the Inspectorunder the Act and not by Police Officer under the CrPC. TheInspector is expected to inspect premises where drugs andcosmetics are being manufactured, sold, stocked, exhibited,offered for sale or distributed. Samples are to be taken at theGpoints of manufacturing, selling, stocking and the points ofdelivery. He is expected also, where he has reason to believethat an offence under the Act has been committed, to search anyperson, enter any place, stop and search any vehicle, examinerecords, and documents and seize the same. Last but not theleast, Section 22(1)(d) declares that he may exercise other powersHas may be necessary for carrying the purposes of Chapter IV orany Rules made thereunder. The elaborate procedure to befollowed by the Inspectors is also provided by the law. [Paras 31-37][974-C-G; 975-C-H; 976-A-E]

4.3 perusal of Section 26 of the Drugs and CosmeticsAct, 1940 would indicate the role which is assigned to any personand recognized consumer association within the meaning ofSection 32. Section 26 of the Drugs and Cosmetics Act, 1940declares that on the application, any person or any recognizedconsumer association, in the prescribed manner and on paymentof prescribed fee, is entitled to submit for test or analysis, to aGovernment Analyst any drug or cosmetic purchased by theperson or the association and to receive report of such test oranalysis signed by the Government Analyst. There can be nogainsaying that armed with report which reveals the commissionof an offence under Chapter IV of the Act, they can invoke Section32 and prosecute the offender. Section 32 of the Act undoubtedlyprovides for taking cognizance of the offence by the court only atthe instance of the four categories mentioned therein. They are:(a) Inspector under the Act; (b) Any Gazetted Officer empoweredby the Central or the State Government; (c) Aggrieved person;and (d) Voluntary Association. It is clear that the Legislature hasnot included the Police Officer as person who can move thecourt. Before the matter reaches the court, under Section 190 ofthe CrPC, ordinarily starting with the lodging of the firstinformation report leading to the registration of the firstinformation report, investigation is carried out culminating in areport under Section 173. The Police Report, in fact, is the Reportsubmitted under Section 173 of the CrPC to the court. UnderSection 190 of the CrPC, the court may take cognizance on thebasis of the police report. Such procedure is alien to Section 32of the Act. In other words, it is not open to the Police Officer tosubmit report under Section 173 of the CrPC in regard to anoffence under Chapter IV of the Act under Section 32. In regardto offences contemplated under Section 32(3), the Police Officermay have power as per the concerned provisions. Being specialenactment, the manner of dealing with the offences under theAct, would be governed by the provisions of the Act. It is to benoted that Section 32 declares that no court inferior to the Court

Aof Sessions shall try offence punishable under Chapter IV. UnderSection 193 of the CrPC, no Court of Sessions can take cognizanceof any offence as Court of Original Jurisdiction unless the casehas been committed to it by Magistrate under the CrPC. Thisis, undoubtedly, subject to the law providing expressly that thatCourt of Sessions may take cognizance of any offence as the CourtBof Original Jurisdiction. There is no provision in the Act whichexpressly authorises the special court which is the Court ofSessions to take cognizance of the offence under Chapter IV.This means that the provisions of Chapters XV and XVI of theCrPC must be followed in regard to even offences falling underCChapter IV of the Act. Starting with Section 200 of the Act dealingwith taking of cognizance by Magistrate on complaint, includingexamination of the witnesses produced by the complainant, thedismissal of an unworthy complaint under Section 203 andfollowing the procedure under Section 202 in the case ofpostponement of issue of process are all steps to be followed. ItDis true that when the complaint under Section 32 is filed either bythe Inspector or by the Authorised Gazetted Officer being publicservants under Section 200, the Magistrate is exempted fromexamining the complainant and witnesses.[Paras 38-40][977-A-H; 978-A-B]

4.4 perusal of Section 202 would show that in regard toan offence falling under Chapter IV of the Act, being exclusivelytriable, by Court of Sessions, the proviso to sub-Section (1) toSection 202 prohibits the direction for investigation under Section202. The proviso to sub-Section (2) of Section 202 contemplates

Fthat when an offence is exclusively triable by the Court of Sessions,and the Magistrate proceeds under Section 202 of the CrPC, heis duty bound to call upon the complainant to produce all itswitnesses and examine them on oath. Thus, the effect of the twoprovisions in sub-Sections (1) and (2), respectively, is as follows:A Magistrate proceeding under Section 202 of the CrPC, isGsubjected to two conditions:

a. Unlike in an ordinary case, meaning thereby, an offencewhich is not exclusively triable by Court of Sessions, in casewhere it is an offence exclusively triable by Court of Sessions,the inquiry can be conducted only by Magistrate himself. It isH

not open to him to cause an investigation be it by Police Officeror any other person.

b. In regard to the inquiry so conducted by him, he mustcall upon the complainant to produce all his witnesses and theymust be examined not on the basis of any affidavit, and not withoutthe support of an oath but the examination must be under anoath. It is to be remembered that under the provisions existingunder the previous Code, an elaborate preliminary inquiry whereeven an accused had right of cross-examination of witnesses, wascontemplated at the hands of the Magistrate before the committalorder was passed. This no longer survives after the amendment.

Offences exclusively triable by Court of Sessions areordinarily pursued on the strength of Police Report. The PoliceOfficer examines witnesses under Section 161 of the CrPC,collects other evidence, arrives at satisfaction that indeed acase is made out to arraign person or persons and, accordingly,the charge-sheet is filed under Section 173. Section 207 of theCode contemplates making available statements of all thewitnesses examined among other documents to be made availableto the accused as provided therein. This prepares the accusedfor the case he is likely to be called upon to meet in the Court ofSessions. As far as complainant setting the criminal law in motionis concerned, what is contemplated is that by the mechanism ofcognizance under Section 200 read with Section 202, culminatingin the issuance of summons or warrant under Section 204, thereis material before the Magistrate and the court is assured thatthe case is not frivolous and wholly meritless going by primafacie view undoubtedly as contemplated in law at that stageregarding the commission of cognizance offence. Apart fromthis, reassuring aspect, as in prosecution launched under PoliceReport, the accused in trial by Court of Sessions to whichCourt case would stand committed under Section 209, wouldalso know beforehand the case he would have to meet havingregard to the materials which weighed with the Magistrate andwhich is also made available to him under Section 208 of the Act.In such circumstances, the Court need not consider further theargument that direction for investigation by the Magistrate underSection 202 would not be tabooed as the result of the investigation

Aby the Police Officer pursuant to direction would not amount toa report under Section 173. This is for the reason that beingoffences exclusively triable by the Court of Sessions, as noticedearlier, there is bar against the Magistrate directinginvestigation under Section 202 by the Police Officer or otherwise.[Paras 41-43][978-D-H; 979-A-G]B

4.5 The Act does contemplate arrest. Section 36AC clearlydeclares that certain offences are non-bailable. Section 36AC(b)proclaims that no person accused of the offences mentionedtherein shall be released on bail or on his own bond unless thePublic Prosecutor has been given an opportunity to oppose theCapplication of such release and where the Public Prosecutoropposes, the court is satisfied that there are reasonable groundfor believing that he is not guilty of such offence and that he isnot likely to commit any offence while on bail. This limitation onthe grant of bail is in addition to the limitations under the CrPCDor and under any other law for the time being in force on grant ofbail. The special powers, however, of the High Court regardingthe grant of bail under Section 439 of the CrPC, is preserved asfound therein. [Para 45][980-E-F]

5. Chapter XII of the CrPC carries the chapter headingE“Information to the Police and their Powers to Investigate”. TheChapter starts off with Section 154 carrying Section heading“Information in cognizable cases”. It declares that everyinformation relating to cognizable offence given to an officer incharge of the police station, if given orally, is to be reduced towriting and whether given in writing or reduced to writing it is toFbe signed by the informant. The key elements of Section 154CrPC can be noticed. Information in relation to cognizableoffence reaching the officer in charge of police station which isordinarily understood as first information statement concerningcognizable offences sets the ball rolling so far as the police officer,Gin charge of police station is concerned. The next provision tonotice in the Chapter is Section 156. It provides that any officerin charge of police station may without the order from aMagistrate investigate any cognizable offence within which acourt, having jurisdiction over local area within the limits ofsuch station, would have the power to enquire into or try underHthe provisions of Chapter XIII. In fact, Section 177 of the CrPC,which is the first Section in Chapter XIII dealing with jurisdictionof Criminal Courts Inquiries and Trial, proclaims that everyoffence shall ordinarily be enquired into and tried by court withinwhose jurisdiction, the offence was committed. Thus, ordinarily,it is the Police Officer, within whose jurisdiction the cognizableoffence is committed, would have the jurisdiction to investigatethat offence. Section 178 onwards provide for the exceptions toSection 177. Sub-section (2) declares the proceedings of policeofficer in case of cognizable offence shall not in any stage becalled in question on the ground that the case was one which hewas not empowered to investigate under the provision. Lastly,sub-section (3) provides that any Magistrate who is empoweredunder Section 190 may order such an investigation which theofficer is to undertake under sub-section (1). Section 157 CrPCcomes under the section heading ’Procedure for investigation’.The body of the Section can be split-up into the following parts -(i) An officer in charge of police station may from informationreceived have reason to suspect the commission of an offence.He may also have reason to suspect the commission of cognizableoffence not on the basis of any information but otherwise. (ii) Asfar as information is concerned, it is clearly relatable to theinformation which has been provided to him within the meaningof Section 154. Cases where he acts on his own knowledge wouldbe covered by the expression otherwise. (iii) The offences mustbe an offence which he is empowered under Section 156 toinvestigate. police officer is empowered to investigate acognizable offence without an order of the Magistrate. As far asnon-cognizable offence is concerned, he cannot investigate suchoffence without the order of the Magistrate having power to tryor commit the case for trial. (iv) However, police officer whoundertakes to investigate the matter is obliged to forthwith senda report of the same to the Magistrate empowered to takecognizance of an offence upon police report. It is at once relevantto notice in the facts of this case that this indispensable elementis not present. This is for the reason that under Section 32 of theAct, Magistrate is not competent to take cognizance of theoffences under Chapter IV of the Act upon police report. Section158 CrPC speaks about the manner of sending the report to the

DEF

AMagistrate under Section 157. It is matter governed by generalor special order issued by the State Government. Quite clearlyeven Section 158 cannot apply in the case of cognizable offencefalling under Chapter IV of the Act for the reasons adverted to.Section 159 enables the Magistrate on receiving such report todirect investigationor if he thinks fit at once to proceed or deputeBany Magistrate subordinate to him to proceed, to hold apreliminary inquiry or otherwise to dispose of the case in themanner provided in the Code. It is clear that the purpose ofSection 157 is to hold the police officer accountable to keepinformed the Magistrate. It acts as an assurance that the reportsCare not tampered, and that the rights of the accused are soughtto be secured. The purport of Section 159 is also to enable theMagistrate to exercise control over the investigation. All theseaspects are irrelevant and out of bounds both for the police officerand the Magistrate in respect of an offence falling under chapterIV of the Act. Section 160 refers to investigation under theDChapter, viz., Chapter XII. Section 161 speaks about theexamination of witnesses and how the statements are to bereduced to writing. Again, Section 161 speaks about aninvestigation carried out under Chapter XII. The use to whichstatements under Section 161 can be put and the limitation onEthe same are spelt out in Section 162 CrPC. Reverting back toSection 157, the Court has taken note of the requirement aboutthe police officer reporting to the Magistrate about the reason tosuspect entertained by the police officer about the commissionof cognizable offence on which the Magistrate is to takecognizance on report. Be it remembered that the MagistrateFcan take cognizance under Section 190 of the CrPC on complaint,a police report or information received from any person otherthan police officer or otherwise. Section 157 appears tocontemplate information received under Section 154 or knowledgegained otherwise about the commission of cognizance offenceGclothing the police officer with the power to investigate leadingto the sending of the report to the Magistrate being confined tocases where officer intends to send the police report which hasbeen defined as the report under Section 173 of the CrPC. Inregard to taking cognizance under Section 32 of the Act, it isunambiguously clear that there is no place for police reportHwithin the meaning of Section 173 of the CrPC in regard to offencesfalling under Chapter IV of the Act. Section 157 contemplatesthat the Officer proceeding either by himself or through hissubordinate Officer to investigate the facts and circumstances,and if necessary, to take measures for the discovery and the arrestof the offender. But on reading the provisions, the Court gathersthe unmistakable impression that the law giver has empoweredthe police officer to investigate in the case of cognizable offencewithout any order of the Magistrate where he ultimately in anappropriate case wishes the Court to take cognizance based onthe material he gathers and transmits police report. If thisimpression of the Court is not flawed, an inevitable corollary wouldbe that in the case of offence under Chapter IV of the Act thoughit be cognizable, police officer would not have the power toinvestigate the matter. Section 169 speaks about the duty torelease person in custody if it is found on investigation thatthere is no sufficient evidence or reasonable ground of suspicionto justify forwarding such person to the Magistrate. Section 170deals with cases where an officer conducting investigation findssufficient evidence or reasonable ground and the accused isforwarded to the Magistrate empowered to take cognizance ofthe offence upon report. Again, the cardinal requirement forthe officer to invoke Section 170 is availability of power with theMagistrate to take cognizance upon police report. This keyrequirement is absent in the case of an offence falling underChapter IV of the Act. The link therefore snaps. Section 173speaks about the report on completion of the investigation forthe police officer. Section 173 (5) is to be read with Section 170,that is to say, in case where there is sufficient material forprosecuting the concerned person, the documents and thestatements of witnesses are to be forwarded to the Magistrateas provided therein. Section 190 of the CrPC has already beennoted. Sections 154, 156, 157, 158, 159, 160, 161, 170 and 173are part of scheme of provisions geared to empower and requireinvestigation of cognisable offences which are to culminate in apolice report within the meaning of Section 190(b) of the CrPC.However, what is applicable in respect of offences under ChapterIV of the Act is not 190 of the CrPC but Section 32 of the Actwhich does not permit cognizance being taken on police report.

DEF

AThe entire exercise of police officer proceeding on basis of aFIR becomes futile. It is not contemplated in law. It thereforebecomes unauthorised. [Paras 62-64][993-E-H; 994-A-C; 995-A-H; 996-A-H; 997-A-D]

6. IMPACT OF LALITA KUMARI V. GOVERNMENT OFBUTTAR PRADESH AND OTHERS

This Court was not, in the said case, considering caseunder the Act or cases similar to those under the Act. Havingregard to the discussion made and on conspectus of theprovisions of the CrPC and Section 32 of the Act, the principleClaid down in Lalita Kumari is not attracted when an information ismade before Police Officer making out the commission of anoffence under Chapter IV of the Act mandating registration of aFIR under Section 154 of the CrPC. [Para 66][998-A-B]

Lalita Kumari v. Government Of Uttar Pradesh andDOthers (2014) 2 SCC 1 : [2013] 14 SCR 713 – heldinapplicable.

7. DUTY OF POLICE OFFICER UNDER SECTION 154

OF THE CRPC IRRESPECTIVE OF IMPACT OFTERRITORIAL JURISDICTION

EThere is practice of registering an FIR as Zero FIR, whenthe Police Station at which FIR is registered, does not haveterritorial jurisdiction, and then, it is made over to the PoliceStation which has jurisdiction in the matter. Could it, therefore,be said that when information is given to Police Officer, withinFthe meaning of Section 154 of the CrPC, in relation to thecommission of cognizable offence under Chapter IV of the Act,the Police Officer must register FIR and then make it over tothe Inspector. It is to be noted that the duty to register FIR,when information is received about cognizable offence fallingunder Chapter IV of the Act, it is clear from the very inceptionGthat Police Officer has no jurisdiction to investigate the offence.It is not case of absence of territorial jurisdiction.If aninformation is relatable only to cognizable offences under ChapterIV of the Act, the Police Officer would be out of bounds and hehas no role to play in the investigation as neither he nor anyother Police Officer has any role to play in the investigation. HisH

duty lies in referring the complainant to the concerned DrugsInspector. If he is in receipt of information about an offence underChapter IV of the Act, he must promptly notify the concernedDrugs Inspector. [Paras 70, 71][999-E-G; 1000-A-B]

8. POWER TO ARREST UNDER THE ACT

Perusal of Section 36AC of the Act makes it clear that arrestis contemplated under the Act. Conditions have been imposedfor grant of bail as enacted in Section 36AC. If the Inspectorunder the Act has no authority to carry out the arrest, there cannotbe situation where arrest is in the contemplation of the lawgiver and yet there is no person who can effectuate that arrest.The further question which would therefore arise is, the impactof finding that arrest can be effected by police officer in respectof cognizable offence under Chapter IV of the Act on the needto register an FIR under Section 154. Under Section 157 of theAct making report to the Magistrate who can take cognizanceof police report renders the provision as such inapplicable underChapter IV of the Act. [Paras 73, 74][1000-D-F]

9.1 THE POWER OF ARREST UNDER THE CRPC

Chapter V of the CrPC deals with the arrest of persons.Section 41 of the CrPC, vide the Code of Criminal Procedure(Amendment) Act, 2008 (Act 5 of 2009, Section 5) (w.e.f. 01-11-2010), deals with the power of the Police Officer to arrest withoutwarrant. Section 41A of the CrPC, inserted w.e.f. 01.11.2010,provides for issuance of Notice by the Police Officer in all thecases covered by Sub-Section (1) of Section 41 of the CrPC, wherethe arrest of person is not required, to appear before him. Aslong as person complies with the Notice, Section 41A(iii)prohibits arrest unless the Police Officer, for reasons to berecorded, is of the view that he is to be arrested. Section 41B ofthe CrPC, again inserted w.e.f. 01.11.2010, casts duty on PoliceOfficer, making an arrest, to bear an accurate, visible and clearidentification of his name. He is to prepare Memorandum ofArrest, which is, inter alia, to be countersigned by the personarrested. Section 41D of the CrPC confers right on the arrested

Aperson to meet an Advocate of his choice during the interrogation,though not throughout interrogation. Under Section 42 of theCrPC, if person commits non-cognizable offence in thepresence of Police Officer or he is accused of committing anon-cognizable offence, and the Police Officer, on demanding hisname and residence, is met with refusal or the giving of nameBor residence, which the Officer believes to be false, arrest canbe made but for the purpose of ascertaining the name andresidence. In fact, he is to be released immediately on executinga bond when the true name and residence is ascertained. If thereis failure to ascertain the address within twenty-four hours, interCalia, of arrest, no doubt, it is forthwith forwarded to the nearestMagistrate having jurisdiction. The Act contemplates arrest by aprivate person. The power and the procedure, is detailed inSection 43 of the CrPC. Section 46 of the CrPC provides for themanner of arrest. Section 47 enables the Police Officer to searchthe place entered by person sought to be arrested. The personDarrested is not to be subjected to more restraint than is necessaryto prevent his escape, declares Section 49 of the CrPC. EveryPolice Officer or other person, arresting person without awarrant, is bound forthwith to communicate to him all particularsof the offence for which he is arrested or other grounds for suchEarrest. This is provided for in Section 50 of the CrPC. PoliceOfficer, when he arrests person without warrant and he is notaccused of committing non-bailable offence, is duty-bound toinform him of his entitlement to be released on Bail. The PoliceOfficer is also under an obligation to inform, under Section 50Aof the CrPC, nominated person about the factum of arrest. ThisFcame into force on 23.06.2006. Section 51 deals with search ofthe arrested person. [Paras 82-85][1004-H; 1005-A; 1007-C-G;1008-E-H]

9.2 Section 54 of the CrPC declares that when any personis arrested, he shall be examined by Medical Officer. SectionG54A of the CrPC, inserted w.e.f. 23.06.2006, specifically providesfor identification of the arrested person. Section 55A of the CrPC,inserted w.e.f. 31.12.2009, makes it the duty of the person, havingthe custody of the person, to take reasonable care of the healthand safety. Section 56 of the CrPC makes it the duty of the PoliceHOfficer, arresting without warrant, to produce the person arrested

before Magistrate having jurisdiction without unnecessary delayor before the Officer In-charge of Police Station. The OfficerIn-charge of Police Station is to report about all persons arrestedwithout warrant to the District Magistrate or the Sub-DivisionalMagistrate as directed by the District Magistrate. Section 59 ofthe CrPC provides that no person, who has been arrested by aPolice Officer, shall be discharged, except on his own bond or onBail or under the Special Order of the Magistrate. Section 60Aof the CrPC provides that no arrest is to be made, except inaccordance with the provisions of the CrPC or any other law beingin force, providing for arrest. Chapter XI of the CrPC providesfor preventive action of the Police. Section 151 of the CrPC, interalia, empowers Police Officer, knowing of design by personto commit cognizable offence, to arrest him without orders froma Magistrate and without warrant. Section 157 of the CrPCprovides, inter alia, that the Police Officer, proceeding toinvestigate case, may take measures for the arrest of theoffender. Section 167 of the CrPC deals with case whereinvestigation is not completed within twenty-four hours, as fixedin Section 57 of the CrPC. It provides that in such situation, ifthere are grounds for believing that the accusation or informationis well founded, the person arrested, is to be forwarded to theMagistrate, inter alia. Section 167 empowers Magistrate to orderremand of the accused person, as provided therein. [Paras 86,87][1009-A-C, E-H]

10. THE PROVISIONS AS TO BAIL

Chapter XXXIII of the CrPC deals with Bail. Section 436of the CrPC deals with Bail in the case of an arrest of personaccused of bailable offence. There is Statutory Right to Bail inthe manner provided therein. Section 437 of the CrPC providesfor Bail in the case of non-bailable offence. It, essentially, dealswith situation where person is brought before court otherthan the High Court or Court of Sessions. There are certainrestrictions and conditions to be fulfilled in the matter of grant ofBail on the Court, as is stated therein. Section 439 of the CrPC,confers special powers on the High Court or the Court of Sessionsin regard to Bail. [Paras 88, 89][1010-A-C]

ABC

942SUPREME COURT REPORTS

A11.1 ARREST

ANALYSIS

The arrest of person involves an encroachment on hispersonal liberty. Article 21 of the Constitution of India declaresthat no person shall be deprived of his personal liberty and lifeBexcept in accordance with procedure established by law. Therecan be no doubt that the power to arrest any person thereforemust be premised on law which authorizes the same. Under theAct, as noted, and bearing in mind the law laid down in connectionwith similar Statutes, the Court has no hesitation in rejecting theCargument of the petitioner that after the amendment of Section36AC of the Act, making the offences cognizable and non-bailable,it is open to the Police Officer to prosecute the person for theoffences set-out in Section 36AC of the Act. Having regard tothe express provisions of Section 32 of the Act, insofar as theprosecution is to be launched qua offences falling within the fourDwalls of Chapter IV of the Act, and which are also the subjectmatter of Section 36AC of the Act, there cannot be any doubtthat prosecution of the offender, for such offences, can be doneonly in the manner provided in Section 32 of the Act. Theprosecution can be launched only by the persons mentioned inESection 32 of the Act. Police Officer, as such, does not figure asone of the persons who may prefer report under Section 173(2)of the CrPC, on which, cognizance could be taken by the SpecialCourt. Undoubtedly, as the Court has already clarified in respectof an offence under Chapter IV, if the acts or omission alsoconstitutes an offence under any other law, under Section 32(3)Fof the Act, it may be open to the Police Officer, if he is otherwiseempowered under the said law, to prosecute the person for thesame offence, to act as such. Consequently, the registration of anFIR, which under the scheme of the CrPC, sets the ball rolling,empowering the Police Officer to investigate under Section 157Gof the CrPC, and gather material and finally file Report, wouldbe inapplicable to an offence under Chapter IV of the Act. [Paras98-100][1016-E-H; 1017-A-C]

11.2 The conundrum, however, is posed by the aspectrelating to arrest. Undoubtedly, there is no express power onHthe Inspector to arrest under the Act. The Parliament, which is

author of the CrPC and also the Act in question, was aware of theprovisions of the CrPC, as it existed at the time when the Actwas enacted in 1940. This is following the principle that theLegislature must be assumed to know the law which exists onthe Statute Book when it makes new law. It must, therefore, beassumed to know that the power of arrest is expressly conferredon the Police Officer in the manner which referred to. TheLegislature has not, in the Act, yet conferred express power onthe Drugs Inspector, to arrest. However, Section 22(1)(d) of theAct, which deals with the powers of the Inspector, inter alia,enables the Inspector to exercise such other powers as may benecessary for carrying out the purpose of Chapter IV or any Rulesmade thereunder. The sanction, which is contemplated underChapter IV, is the criminal sanction by way of prosecuting personfor contravening the provisions of Chapter IV of the Act. In otherwords, the Legislature has given teeth to the law by providingfor prosecuting offenders. The Inspector is at the center stage.In every other aspect, as can be seen from the Act, theimplementation of its provisions is vitally dependent upon thepowers and functions assigned to the Inspector. The veryqualifications, which are provided in the Rules, as indispensablefor being appointed as an Inspector, represents carefully chosenvalue judgment by the Legislature to assign the implementationof the Act through the competent hands of qualified persons. TheAct is enacted to achieve the highest public interest in as muchas what is at stake is the health of the members of the public,which again is recognized as one of the aspects covered by theFundamental Right protected under Article 21 of the Constitutionof India. Keeping the Police Officer out from the categories ofpersons, who could prosecute offenders for offences underChapter IV of the Act, is also carefully thought out ideal. [Paras101, 102][1017-C-D, G-H; 1018-A-D]

12. THE DECISION OF THIS COURT INDIRECTORATE OF ENFORCEMENT V. DEEPAK MAHAJANAND ANOTHER

As laid down in Deepak Mahajan, the power of arrest canbe conferred on persons other than Police Officer. The ForeignExchange Regulation Act, 1973 (hence repealed); the Customs

ABC

AAct, 1962; the Gold (Control) Act, 1968 (repealed); thePrevention of Food Adulteration Act, 1954 (hence repealed) andthe Railway Property (Unlawful Possession) Act, 1966, in Sections35, 104, 68, 10B and Section 6, respectively, conferred power ofarrest on the Officers under these Acts. Therefore, if Section22(1)(d) of the Act is interpreted, as comprehending the powerBof arrest with the Drugs Inspector, then, his competency to arrest,a requirement in law, as laid down again in Deepak Mahajan(paragraph-54), would stand satisfied. However, the furtherquestion is, what is the procedure to be followed by the Inspector,and still finally, whether the Police Officer, under the CrPC, willCstand deprived of the power to arrest. The Court does agree thatthe Police Officer, for instance, cannot be approached by anyperson with complaint that cognizable offence under ChapterIV of the Act has been committed and he is not bound to registerthe FIR in terms of the law which is being held down by this court

in Lalita Kumari. This is for the reason that if he were to registerDan FIR, then, he would have to pass on to the stage of Section157 of the CrPC and, furthermore, carry out investigation, asunderstood in law, for which neither is he deemed qualified orempowered by the Law Giver nor is he entitled to file Reportunder Section 173 of the CrPC. [Paras 109, 110][1022-D-F; 1023-EA-B]Directorate of Enforcement v. Deepak Mahajan andAnother (1994) 3 SCC 440 : [1994] 1 SCR 445 – reliedon.

13. POWER OF ARREST UNDER THE ACTF

The Court is faced with situation which projects discordbetween two Statutes, viz., the CrPC and the Act, and the onlysilver-lining appearing on the horizon, is the ambit of the powerunder Section 22(1)(d) of the Act. Apart from the same, there isno express power of arrest under the Act on the Drugs Inspector.G[Para 111][1023-C-D]

14. SOME ENACTMENTS CONTAINING PROVISIONSSIMILAR TO SECTION 22(1)(d) OF THE ACT

The Seeds Act, 1966 (Section 14(1)(e), the Insecticides Act,1968 (Section 21(f)), the Kerala Fish Seed Act, 2014 (SectionH

19(1)(e), Uttarakhand Ground Water (Regulation and Control ofDevelopment and Management) Act, 2016 [Section 13(1)(j)],contain provisions similar to what is contained in Section 22(1)(d)of the Act. The Weekly Holidays Act, 1942 [Section 8(1)(c)], theJammu and Kashmir Factories Act, 1999 [Section 9(1)(c)],contained provisions which confer power on the Authorities underthe Act to exercise such other power as may be necessary forcarrying outer purposes of the enactment. As far as the Shopsand Commercial Establishment Act, 1958 [Section 19(1)(c)], afterconferring the power to exercise such powers, as may benecessary for carrying out the Act, the Law Giver carves out alimitation by way of proviso that no one shall be required, underthe said Section, to answer any question or give any evidencetending to incriminate him. Such proviso is also found in thePrivate Medical Establishment Act, 2007 [vide Section 21(1)(b)]as also in the Jammu and Kashmir Factories Act, 1999. [Paras112, 113][1023-G-H; 1024-A-B]

15.1 The power to arrest is drastic power. It involvesencroachment on personal liberty. The Drugs Inspector is not aPolice Officer under the CrPC. The Legislature was aware of thepower of the Police Officer to arrest when he embarks oninvestigation of cognizable case, as is clear from Section 157 ofthe CrPC. There is another indication in the Act which may revealthe mind of the Legislature that the power of arrest was notintended to be conferred on the Drugs Inspector. There is noreference in Section 34AA (Penalty for vexatious search orseizure) to arrest forming the subject matter of penalty.[Para 134][1034-G-H; 1035-A]

15.2 As noticed in the Central Excise Act, 1944, apart fromthe fact that the power of arrest is expressly conferred, the manner,in which the power is to be exercised, is specifically indicated, asnoticed on perusal of Sections 19 and 20. Section 68 of the GoldControl Act, 1968 has expressly conferred power of arrest, theconditions in which the power could be exercised and furtherprocedure to be followed. The Inspector under the Act has beenconferred with vast and formidable array of powers, and in anenactment like the Act, the taking of samples, the Report givenby the Competent Officer in regard to the same and the right

Areserved to the concerned person to seek further Report fromthe Central Laboratory, go long way in the successful culminationof complaint under Section 32 of the Act. The Inspector is,undoubtedly, endowed with the power of inspection, takingsamples of any drug or cosmetic, searching any person, searchingany place, searching any vehicle, examining records, registers,Bdocuments and other material objects and seizing the same,requiring any person to produce any record, register or otherdocument. These are powers which are expressly conferred onthe Inspector. Though, complaint could be filed by othercategories of complainants in Section 32 of the Act, the InspectorCis pivot around which the Act moves. Rule 51(4) makes it dutyon the part of the Drugs Inspector to investigate any complaintin writing which may be made to him. It is also his duty underRule 51(5) to institute prosecution in respect of breaches of theAct and the Rules thereunder. He is also duty-bound under Rule51(7) to make inquiries and inspections as may be necessary toDdetect sale of drugs in contravention of the Act. Under Rule 52,in regard to manufacture of drugs, it is again the duty to instituteprosecution for breaches besides making inspections of allpremises. This is having regard to both his qualifications andalso the powers conferred on him. Section 23 of the Act,Eundoubtedly, is the procedure to be followed by the Inspector.The Court is, therefore, to ascertain the meaning of theexpression “other powers”, which are essential for carrying outthe object of Chapter IV and the Rules made thereunder. TheLegislature has not given any hint, intending to limit the scope ofthe residuary powers. No doubt, the Act is pre-IndependenceFAct. If it is interpreted that it is Drugs Inspector, acting underSection 22 of the Act, who alone can investigate offences fallingunder Chapter IV of the Act and there is no power for the PoliceOfficer under the CrPC to investigate under the Act or to file aReport under Section 173 of the CrPC, which indeed isGindisputable, then, power of arrest, which is necessary for thepurpose of investigating and prosecution of the offences fallingwithin Chapter IV of the Act, must be conceded to the DrugsInspector. The legislative intention in conferring various powers,as noticed in the foregoing provisions of Section 22 of the Act

and declaring that all other powers, which are necessary for thepurpose of the Act, are to inhere in the Drugs Inspector, reassuresthe Court that it would be correctly ascertaining the legislativeintention to be that on Drug Inspector taking-up matter fallingunder Chapter IV of the Act, he is invested with the power toarrest. There is another aspect which may have an importantbearing on the issue. Under Section 36AC of the Act, the offencesas mentioned therein which include some of the offences underChapter IV of the Act are declared cognizable and non-bailable.The provision imposes restriction on the arrested person beingreleased on bail or on his own bond unless the public prosecutorhas been given an opportunity to oppose the application and whenthe public prosecutor opposes the application, the Court is to besatisfied that there are reasonable grounds for believing that theaccused person is not guilty of such offence and that he is notlikely to commit an offence. This limitation, is apart from thelimitations in the CrPC, inter alia. Now, the Police Officer actingunder the CrPC even proceeding for moment on the basis thatit is sufficient that mere memorandum of arrest as requiredunder the CrPC is prepared and further there is compliance withother provisions of the CrPC also, would it suffice is the questionthat would arise in the following manner? From the provisions ofthe Act and the Rules it is noted that it is the Drugs Inspectorwho is empowered and duty bound to investigate the complaintabout violations of acts and rules. He is the person charged witha duty of prosecuting the offenders. If the police officer is merelyto be granted power of arrest and without having any power ofinvestigation then how would it be possible for the police officerto make any investigation under the act and if no investigation ispossible, how would the Police Officer be in position to be ofany assistance to the Public Prosecutor and, therefore, to theCourt in the disposal of an application for bail? In other words, itwould be based on the records of investigation and materialcollected by the investigating officer that Court in case woulddecide as to whether bail is to be granted or not. How would thepolice officer seek remand for carrying out investigation whichhe cannot do? If the Act and the Rules do not contemplateinvestigation by Police Officer, then, conferring the power ofarrest on the Police Officer, would, in fact, frustrate the working

Aof theAct. On the other hand, if it is the Drugs Inspector who canarrest, the following consequences would follow:

a. He has the requisite technical qualifications to properlyinvestigate and prosecute the offender.

b. He would be able to make adequate entries in whateverBdocument he has to maintain as part of investigation and it wouldfacilitate proper and fair consideration of an application for bailwithin the meaning of Section 36AC of the Act and also facilitatea request for remand under Section 167 of the Cr.P.C. [Paras136-138][1036-C-H; 1037-A-H; 1038-A-D]

15.3 As far as the arrest, not being mentioned in Section34AA, as forming ground for visiting the delinquent Officerwith penalty, it may be noticed that there is residuary power inSection 34AA and it would cover any act. Section 34AA(d)provides that if any Inspector, exercising powers under the ActDor the Rules made thereunder, commits, as such Inspector, anyother act, to the injury of any person without having reason tobelieve that such act is required for the execution of his duty, heshall be punishable with fine which may extend to one thousandrupees. Regarding the power for seeking and ordering remandunder Section 167, the principles laid down by this Court inEDeepak Mahajanwould apply. This process of interpretation wouldproduce the result of harmonizing two seemingly irreconcilablecommands from the Law-Giver. This interpretation commendsfor the reason that the investigation into offences, under ChapterIV of the Act, would commence, be carried out and wouldFculminate in, in the safe hands of the competent and qualifiedStatutory Authority, as designated by law. It would also avoid anoutside agency like Police Officer, being obliged to register anFIR, for the reason that where arrest has to be made, FIR is tobe registered, and, when the registering of the FIR carries withit an unattainable object of preferring Final Report under SectionG173 of the CrPC, as far as the Police Officer is concerned. It ismade clear that if Police Officer is approached with regard to acomplaint regarding commission of an offence falling underChapter IV of the Act, he is not to register an FIR unless it bethat cognizable offence, other than an offence falling underHChapter IV of the Act, is also made out. He must makeover the

complaint to the competent Drug Inspector so that action inaccording with law is immediately taken where only offences underChapter IV are made out. [Paras 139-141][1038-F-H; 1039-A-D]

15.4 As far as the arrest contemplated under Section 41 ofthe CrPC is concerned, in case cognizable offence, falling underChapter IV of the Act, is committed, either in the presence ofthe Drugs Inspector, or in respect of which offence, Police Officerwould have power to arrest, as provided therein, viz., covered bythe situations contemplated under Section 41(ba), the DrugsInspector would be entitled to effect the arrest. Since theprocedure under the CrPC is to be read as applicable, except tothe extent that different procedure is to be provided under theAct, and since there is no procedure or power otherwise providedin the Act in regard to arrest, the powers and procedure availableto Police Officer, with the limitations on the said power, as laiddown in D.K. Basu, as also as contained in the CrPC, would beapplicable. Following Deepak Mahajan, it is held that the DrugsInspector, under the Act, is invested with certain powers similarto Police Officer. The word “investigation” cannot be limitedonly to Police investigation, as has been noted in DeepakMahajan. The power to arrest person must indeed flow fromthe provisions of Statute. The statutory provision under theAct is Section 22(1)(d). The arrested person, under the Act, wouldbe an accused person to be detained under Section 167(2) of theCrPC. No doubt, the Police Officer is bound to provide assistanceto the Inspector in case of need to effectuate the arrest wherethere is resistance or likelihood of resistance. No doubt, in regardto the arrest in relation to offences falling under Chapter IV ofthe Act, which do not fall under Section 36AC, the power of arrestwould depend upon the provision in the Schedule to the CrPC.The existence of the power to arrest with the Drugs Inspector isnot to be understood as opening the doors to making illegal,unauthorized or unnecessary arrest. Every power comes withresponsibility. In view of the impact of an arrest, the highest caremust be taken to exercise the same strictly as per the law. Thepower of arrest must be exercised, recognizing the source of hisauthority, to be Section 22(1)(d) of the Act, which is for carryingout the purpose of Chapter IV of the Act or any Rules made

Athereunder. Section 33P provides for power to give directions.The Central Government is conferred with powers to givedirections to the State Government for the purpose of carryinginto execution, in the State, any of the provisions of the Act orany Rule or Order made thereunder. It is for the CentralGovernment to consider the question whether it can, under theBsaid provision, issue directions in regard to the power of arrest,which the Court has found, subject to what has been stated inthis Judgment. [Paras 142-145][1039-E-H; 1040-A-D, E-F]

D.K. Basu v. State of West Bengal (1997) 1 SCC 416 :[1996] 10 Suppl. SCR 284 – relied on.

C16. THE CONCLUSIONS/DIRECTIONS

I. In regard to cognizable offences under Chapter IV of theAct, in view of Section 32 of the Act and also the scheme of theCrPC, the Police Officer cannot prosecute offenders in regard toDsuch offences. Only the persons mentioned in Section 32 areentitled to do the same.

II. There is no bar to the Police Officer, however, toinvestigate and prosecute the person where he has committedan offence, as stated under Section 32(3) of the Act, i.e., if he hasEcommitted any cognizable offence under any other law.

III. Having regard to the scheme of the CrPC and also themandate of Section 32 of the Act and on conspectus of powerswhich are available with the Drugs Inspector under the Act andalso his duties, Police Officer cannot register FIR under SectionF154 of the CrPC, in regard to cognizable offences under ChapterIV of the Act and he cannot investigate such offences under theprovisions of the CrPC.

IV. Having regard to the provisions of Section 22(1)(d) ofthe Act, an arrest can be made by the Drugs Inspector in regardto cognizable offences falling under Chapter IV of the Act withoutGany warrant and otherwise treating it as cognizable offence. Heis, however, bound by the law as laid down in D.K. Basuand tofollow the provisions of CrPC.

V. On the understanding that the Police Officer can registera FIR, there are many cases where FIRs have been registered inregard to cognizable offences falling under Chapter IV of the Act.They should be made over to the Drugs Inspectors, if not alreadymade over, and it is for the Drugs Inspector to take action on thesame in accordance with the law. The power under Article 142 ofthe Constitution of India is being resorted to in this regard.

VI. In number of cases on the understanding of the lawrelating to the power of arrest as, in fact, evidenced by the factsof the present case, police officers would have made arrests inregard to offences under Chapter IV of the Act. Therefore, inregard to the power of arrest, the decision that Police Officersdo not have power to arrest in respect of cognizable offencesunder Chapter IV of the Act, will operate with effect from thedate of this Judgment.

VII. The Drugs Inspectors, who carry out the arrest, mustnot only report the arrests, as provided in Section 58 of the CrPC,but also immediately report the arrests to their superior Officers.

On the facts, the impugned judgment is upheld. [Paras 150,151][1041-E-H; 1042-A-F]

Jeewan Kumar Raut and another v. CBI (2009) 7 SCC526 : [2009] 10 SCR 272 – relied on.

State (NCT of Delhi) v. Sanjay (2014) 9 SCC 772 :[2014] 9 SCR 1063; Kanwar Pal Singh v. State of UttarPradesh and another (2020) 14 SCC 331; JamiruddinAnsari v. Central Bureau of Investigation and another(2009) 6 SCC 316 : [2009] 7 SCR 759; H. N. Rishbudand Inder Singh v. State of Delhi, Etc. AIR 1955 SC196 : [1955] SCR 1150; Institute of CharteredAccountants of India v. Vimal Kumar Surana andanother (2011) 1 SCC 534 : [2010] 14 SCR 248; Stateof A.P. v. Punati Ramulu and others AIR 1993 SC 2644;Satvinder Kaur v. State (Govt. of NCT of Delhi) andanother AIR 1999 SC 3596 : [1999] 3 Suppl. SCR 348;Arnesh Kumar v. State of Bihar and another (2014) 8SCC 273 : [2014] 8 SCR 128; Rini Johar v. State ofM.P. (2016) 11 SCC 703 : [2016] 5 SCR 579; Badaku

AJoti Savant v. State of Mysore [1966] 3 SCR 698; RajKumar Karwal v. Union of India and others (1990) 2SCC 409 : [1990] 2 SCR 63; Ramesh Chandra Mehtav. State of W.B. [1969] 2 SCR 461; Illias v. Collector ofCustoms, Madras [1969] 2 SCR 613; State of U.P. v.Durga Prasad (1975) 3 SCC 210 : [1975] 1 SCR 881;BBalkishan A. Devidayal v. State of Maharashtra (1980)4 SCC 600 : [1981] 1 SCR175; T D. Sanjeevayya v.Election Tribunal, Andhra Pradesh and others AIR 1967SC 1211 : [1967] SCR 489; Sultana Begum v. PremChand Jain (1997) 1 SCC 373 : [1996] 9 Suppl. SCR C707; Om Parkash and Another v. Union of India andAnother (2011)14 SCC 1 : [2011] 14 SCR 240 –referred to.

Sunil Gupta v. Union of India 2000 (118) ELT 8 P&H;Bhavin Impex Pvt. Ltd. v. State of Gujarat 2010 (260)DELT 526 (Gujarat) – referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.200 of 2020.

From the Judgment and Order dated 02.08.2018 of the High Courtof Judicature at Allahabad in Criminal Misc. Writ Petition No. 20338 of2018.

Ms. Pinky Anand, ASG, Apoorv Kurup, Ayush Anand, Ms. UpamaBhattacharjee, Ms. Tanisha Samantha, Gurmeet Singh Makker, Advs.for the appellant.

S. Nagamuthu, Sr. Adv., B. Balaji, S. Arun Prakash,M. Manikandan, Ms. Srishti Singh, Rohit Kaliyar, Advs. for therespondents.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. What is the interplay between the provisions of the Code ofCriminal Procedure (hereinafter referred to as “CrPC” for short) andthe Drugs and Cosmetics Act, 1940 (hereinafter referred to as “theAct” for short)? Whether in respect of offences falling under chapterIV of the Act, FIR can be registered under Section 154 of the CrPCand the case investigated or whether Section 32 of the Act supplants theprocedure for investigation of offences under CrPC and the taking ofcognizance of an offence under Section 190 of the CrPC? Still further,can the Inspector under the Act, arrest person in connection with anoffence under Chapter IV of the Act.

A2. One Naushad Khan made an online complaint on 22.2.2018.The Commissioner (Food Protection and Drugs) directed enquiry andthe Drug Inspector, Mau, U.P. along with two others conducted aninspection at the Sharda Narayan Clinic and Pharmacy and therespondent No.1 was directed to show papers in respect of medicinesstored in the shop. The first respondent according to the appellant statedBthat he did not have any license though he was the owner of the medicalstore and that he had stored the medicines without proper license.Thereby, he has committed offence under Section 18 and 27 of the Act.On the basis of recovery made, an FIR came to be lodged on 22.6.2018purporting to be under Section 18 (a)(i) and Section 27 of the Act. TheCcomplainant it may be noted is none other than the Drugs Inspector. Therespondent filed writ petition for quashing the FIR and not to arresthim. The appellant, viz., the Union of India through the Secretary, Ministryof Health and Family Welfare was not made party to the writ petition.The respondents in the writ petition were the Superintendent of Police,the Station House Officer and the Drugs Inspector, Mau in his personalDcapacity. This is apart from the State of U.P. which was made the firstrespondent. It is pointed out by the appellant that the High Court issuednotice seeking presence of the appellant. The High Court by the impugnedorder had allowed the writ petition and quashed the FIR. In short, thereasoning of the High Court is that under the Act Section 32 must beEscrupulously observed and it is the mechanism for prosecuting offencesand there is no scope for registration of FIR under CrPC.FINDINGS OF THE HIGH COURT

3. The High Court referred to Section 32 of the Act and foundthat only an Inspector, Gazetted Officer conferred with authority, aFperson aggrieved or recognized consumer organization is eligible to makea complaint. The court adverted to the other provisions of the Act includingSections 22, 23, 25 and 27 apart from Section 32 and found that the Actclearly lays down complete code for the trial of offences committed inrespect of Drugs and Cosmetics. The Act was special Act enacted forGthe trial of offences committed under the Act. No other provision wouldbe applicable as the Act had an overriding effect over all Acts. Theprovisions of the CrPC would not be applicable except as provided inthe Act itself. Since the lodging of an FIR is under Section 154 of theCrPC, the said provision would not be invokable. It further held as follows:

“21. In this Act, the procedure for launching prosecution hasbeen clearly laid down saying that prosecution under this Act canbe initiated only on complaint made by an authorized Inspectoror other authorized persons defined under Section 32, who issupposed to follow the entire procedure as narrated above. By nostretch of imagination could the concerned Inspector have lodgedan F.I.R. in this case and authorize the police to make investigationin this case.”

4. It was further held that the lodging of the FIR is absolutelybarred and FIR deserved to be quashed. The court also directed theissue of notice to the Inspector who had gone to lodge the FIR, despitethere being special provision for launching the prosecution andexplanation was sought. Still further it was directed as follows:

“23. We, accordingly, allow this petition and quash the F.I.R. andsimultaneously it is further directed that notice shall be issued tothe concerned Inspector by the Competent Authority to show causeas to why he deliberately lodged an F.I.R. when there is specificprovision for prosecuting the accused by lodging complaint. Theexplanation and action taken against him, shall be forwarded tothe Court by the Competent Authority within 8 weeks from todaythrough Registrar General of this Court who shall place the samebefore us for perusal in our chambers as soon as the same isreceived by Registrar General. We further grant liberty to therespondent no. 4 to initiate criminal proceedings in accordancewith the procedure laid down under this Act forthwith against thepetitioner.

24. Registrar General to sent certified copy of this order toPrincipal Secretary, Food Safety and Drug Administration,Government of U.P. for his necessary information and follow upaction. It is further directed that Principal Secretary, Food Safetyand Drug Administration, Government of U.P. shall notify suchdirection to all the D.Ms. of the State so that no such error recurs.”

5. We heard Ms. Pinky Anand, learned Additional Solicitor Generalappearing on behalf of the appellant. We also heard Shri S. Nagamuthu,learned Senior Counsel, whom we appointed as Amicus Curiae.

956SUPREME COURT REPORTS

ASUBMISSIONS OF THE APPELLANT

6. Ms. Pinky Anand, learned Additional Solicitor General wouldsubmit that the High Court was in error in holding that FIR under CrPCcannot be lodged in respect of the Act. She drew our attention to Section36 AC of the Act. Thereunder, as we shall see in greater detail, certainBoffences under the Act have been declared to be cognizable offences.She would point out that once these offences are declared as cognizableoffences it is inconceivable that FIR cannot be lodged under the CrPCin regard to the same. She drew our attention to Section 4 and 5 of theCrPC. She contended that there is nothing in the Act which detractedfrom FIR being registered in regard to offences under the Act.CRegarding the consequences flowing from Section 32 of the Act, it isher contention that the High Court fell in error in ignoring Section 36ACof the Act. It is her complaint that the Act contemplated curbing ofvarious highly undesirable activities posing great threat to the healthand the safety of citizens as can be gleaned from the grave offencesDwhich have been created under the Act. In fact, it is pointed out thatmany cases where investigation was carried out on the basis of FIRlodged under the Act will witness unmerited burial and offenders wouldgo scot free if the impugned judgment of the High Court is allowed tostand. There is no bar under the Act to the registration of FIR underCrPC.E7. Shri Nagamuthu, learned senior counsel submitted that havingregard to the scheme of the Act and Section 32, in particular, the judgmentof the High Court is only to be supported. He drew our attention to thefollowing judgments:Fa. Jeewan Kumar Raut and anotherv. CBI1;

b. State (NCT of Delhi)v. Sanjay2.

8. He also referred to the judgment of this Court in Kanwar PalSinghv. State of Uttar Pradesh and anotherin Criminal Appeal No.1920of 2019.He would submit that as far as offences falling within the ambitGof Section 36AC are concerned, FIR under Section 154 of the CrPC isnot contemplated and cannot be registered. The mere fact that Section36 AC of the Act declares certain offences under the Act cognizablewould not mean that the scheme of Section 32 of the Act can be jettisoned.

1 (2009) 7 SCC 526H2 (2014) 9 SCC 772

He would point out that prosecution can be launched only in the mannerprovided under the Act in regard to offences under the Act covered bySection 32. The institution of the prosecution can be only at the instanceof the persons named in the said section. He points out that Section 32came to be amended at the same time as Section 36 AC was inserted.Nothing prevented the Legislature if it so desired to provide that theoffences falling under Section 32 should be investigated in the mannerprovided under the provisions of the CRPC namely by lodging FIR andafter investigating the offences by filing report within the meaning ofSection 173 of the CrPC. The fact that such procedure was notcontemplated by the Legislature is clear from the fact that under the preamended regime, three out of four categories mentioned in the presentamended avtaar were already present and the amendment added onlyone more to the categories of persons who alone could institute theprosecution. In fact, as regards Section 36 AC declaring certain offencesunder the Act to be cognizable, he drew our attention to the second partof the first schedule of the CrPC. He contended inter alia that evenwithout the aid of Section 36 AC, the offences under Section 27(1)(a)and 27(1)(c)were cognizable having regard to the term of imprisonmentprovided as punishment for the same. Nothing turned on the offencebeing cognizable except apprehension of the offender without the aid ofa warrant. He would submit that in regard to the offences embraced bySection 32, an F.I.R. within the meaning of the CrPC is not contemplatedbut he was at pains to point out that this did not stand in the way of anF.I.R. being lodged if the offence constituted distinct offence underany other law. In such scenario, while the lodging of the F.I.R. inregard to the offences covered by Section 32 would be impermissiblethe Officer would be within his powers if he were to register an F.I.R.and proceed to investigate offences other than the offence falling underSection 32, should they be cognizable. In this case, he would submit thatthe offence alleged is under Section 27 (1)(b) of the Act which squarelyfell within the four walls of Section 32. So, also Section 18 prohibitingcertain acts fell in Chapter IV of the Act, thus, attracting Section 32. Inregard to these offences, Section 32 constitutes bar for the registrationof an F.I.R. under CrPC and the investigation as an ordinary case.

9. In reply to submission of learned Amicus Curiae, Ms. PinkyAnand, learned Additional Solicitor General, drew our attention to Section36AC and reiterated that neither the CrPC nor the Act constitute astumbling block to the lodging of an FIR. She also drew our attention to

ASection 13 of the Act. It is pointed out that Section 13 falls under ChapterIII. She contended that the Act contemplated Special Court to dealwith the offences under the Act. The procedure leading to the institutionof the prosecution case must be governed by the provisions of the CrPC,runs her argument.

BANALYSIS

10. The Act purports to achieve the object of regulating the import,manufacture, distribution and sale of drugs and cosmetics. The wordDrugs has been defined in Section 3(b). Section 3(e) defines Inspector:

“3 Definitions. —In this Act, unless there is anything repugnant inCthe subject or context,—

(e) ”Inspector” means—

(i) in relation to Ayurvedic, Siddha or Unani drug, an Inspectorappointed by the Central Government or State Government undersection 33G; and

(ii) in relation to any other drug or cosmetic, an Inspector appointedby the Central Government or State Government under section21;

11. Chapter III contains provisions which provide for deemingdefinitions of misbranded drugs, adulterated drugs, spurious drugs,Emisbranded cosmetics and spurious cosmetics for the purpose of ChapterIII. Section 13 provides for offences arising out of imports. Chapter IVfalls under the chapter heading “Manufacture, Sale and Distribution ofDrugs and Cosmetics”. Interestingly, misbranded drugs, adulterated drugs,spurious drugs, misbranded cosmetics and spurious cosmetics, adulteratedFcosmetics are defined by provisions found in Chapter IV for the purposeof Chapter IV. Section 18 contemplates that from such date as may befixed by the State Government, manufacture for sale or distribution, orto sell, or stock or exhibit or offer for sale or distribution of drugsmisbranded, adulterated, spurious drugs and cosmetics inter alia areprohibited. Section 21 reads as follows:G

“21. Inspectors.—

(1) The Central Government or State Government may bynotification in the Official Gazette, appoint such persons as it thinksfit, having the prescribed qualifications, to be Inspectorsfor such

areas as may be assigned to them by the Central Government orthe State Government, as the case may be.

(2) The powers which may be exercised by an Inspector and theduties which may be performed by him, the drugs or [classes ofdrugs or cosmetics or classes of cosmetics] in relation to whichand the conditions, limitations or restrictions subject to which, suchpowers and duties may be exercised or performed shall be suchas may be prescribed.

(3) No person who has any financial interest in the import,manufacture or sale of drugs or cosmetics shall be appointed tobe an Inspector under this section.

(4) Every Inspector shall be deemed to be public servant withinthe meaning of section 21 of the Indian Penal Code (45 of 1860),and shall be officially subordinate to such authority, having theprescribed qualifications,] as the Government appointing him mayspecify in this behalf.”

(Emphasis supplied)

12. It is necessary to notice the rules relevant in this regard. Rule(49) deals with qualifications of Inspectors. It reads as follows: -

“49. Qualifications of Inspectors. —A person who is appointedan Inspector under the Act shall be person who has degree inPharmacy or Pharmaceutical Sciences or Medicine withspecialisation in Clinical Pharmacology or Microbiology from aUniversity established in India by law: Provided that only thoseInspectors—

(i) who have not less than 18 months’ experience in themanufacture of at least one of the substances specified in ScheduleC, or

(ii) who have not less than 18 months’ experience in testing of atleast one of the substances in Schedule in laboratory approvedfor this purpose by the licensing authority, or

(iii) who have gained experience of not less than three years inthe inspection of firm manufacturing any of the substancesspecified in Schedule during the tenure of their services asDrugs Inspectors; shall be authorised to inspect the manufactureof the substances mentioned in Schedule C:

AProvided further that the requirement as to the academicqualification shall not apply to persons appointed as Inspectors on orbefore the 18th day of October, 1993.”

Rule (51) deals with duties of Inspectors in regard to sale. It readsas follows:

“51. Duties of Inspectors of premises licensed for sale.—Subjectto the instructions of the controlling authority, it shall be the dutyof an Inspector authorized to inspect premises licensed for thesale of drugs—

(1) to inspect not less than once year all establishments licensedCfor the sale of drugs within the area assigned to him;

(2) to satisfy himself that the conditions of the licences are beingobserved;

(3) to procure and send for test or analysis, if necessary, importedpackages which he has reason to suspect contain drugs beingDsold or stocked or exhibited for sale in contravention of theprovisions of the Act or rules thereunder;

(4) to investigate any complaint in writing which may be made tohim;

(5) to institute prosecutions in respect of breaches of the Act andErules thereunder;

(6) to maintain record of all inspections made and action takenby him in the performance of his duties, including the taking ofsamples and the seizure of stocks, and to submit copies of suchrecord to the controlling authority;F

(7) to make such enquiries and inspections as may be necessaryto detect the sale of drugs in contravention of the Act;

(8) when so authorized by the State Government, to detainimported packages which he has reason to suspect contain drugs,Gthe import of which is prohibited.”

Rule (52) deals with duties of Inspectors in regard to manufacturer.It reads as follows:

“52. Duties of inspectors specially authorised to inspect themanufacture of drugs or cosmetics. —Subject to the instructions

of the controlling authority it shall be the duty of an Inspectorauthorized to inspect the manufacture of drugs—

(1) to inspect [not less than once year], all premises licensed formanufacture of drugs or cosmetics within the area allotted to himto satisfy himself that the conditions of the licence and provisionsof the Act and Rules thereunder are being observed;

(2) in the case of establishments licensed to manufacture productsspecified in Schedules and (1) to inspect the plant and theprocess of manufacture, the means employed for standardizingand testing the drug, the methods and place of storage, the technicalqualifications of the staff employed and all details of location,construction and administration of the establishment likely to affectthe potency or purity of the product;

(3) to send forthwith to the controlling authority after eachinspection detailed report indicating the conditions of the licenceand provisions of the Act and rules thereunder which are beingobserved and the conditions and provisions, if any, which are notbeing observed;

(4) to take samples of the drugs manufactured on the premisesand send them for test or analysis in accordance with these Rules;

(5) to institute prosecutions in respect of breaches of the Act andrules thereunder.”

Section 22 deals with the powers of the Inspector. reads as follows:

“22. Powers of Inspectors.—(1) Subject to the provisions of section23 and of any rules made by the Central Government in this behalf,an Inspector may, within the local limits of the area for which heis appointed,—” (a) inspect,—”

(i) any premises wherein any drug or cosmetic is beingmanufactured and the means employed for standardising andtesting the drug or cosmetic;

(ii) any premises wherein any drug or cosmetic is being sold, orstocked or exhibited or offered for sale, or distributed;

(b) take samples of any drug or cosmetic,—

(i) which is being manufactured or being sold or is stocked orexhibited or offered for sale, or is being distributed;

(ii) from any person who is in the course of conveying, deliveringor preparing to deliver such drug or cosmetic to purchaser or aconsignee;

(c) at all reasonable times, with such assistance, if any, as heconsiders necessary,—

(i) search any person, who, he has reason to believe, has secretedabout his person, any drug or cosmetic in respect of which anoffence under this Chapter has been, or is being, committed; or

(ii) enter and search any place in which he has reason to believethat an offence under this Chapter has been, or is being, committed;or

(iii) stop and search any vehicle, vessel or other conveyance which,he has reason to believe, is being used for carrying any drug orcosmetic in respect of which an offence under this Chapter hasbeen, or is being, committed,

and order in writing the person in possession of the drug or cosmeticin respect of which the offence has been, or is being, committed,not to dispose of any stock of such drug or cosmetic for specifiedperiod not exceeding twenty days, or, unless the alleged offenceis such that the defect may be removed by the possessor of thedrug or cosmetic, seize the stock of such drug or cosmetic andany substance or article by means of which the offence has been,or is being, committed or which may be employed for thecommission of such offence;

(cc) examine any record, register, document or any other materialobject found with any person, or in any place, vehicle, vessel orother conveyance referred to in clause (c), and seize the same ifhe has reason to believe that it may furnish evidence of thecommission of an offence punishable under this Act or the Rulesmade thereunder;

(cca) require any person to produce any record, register, or otherdocument relating to the manufacture for sale or for distribution,stocking, exhibition for sale, offer for sale or distribution of anydrug or cosmetic in respect of which he has reason to believe thatan offence under this Chapter has been, or is being, committed;

(d) exercise such other powers as may be necessary for carryingout the purposes of this Chapter or any rules made thereunder.

22(2)The provisions of the Code of Criminal Procedure, 1973 (2of 1974)] shall, so far as may be, apply to any search or seizureunder this Chapter as they apply to any search or seizure madeunder the authority of warrant issued under section 94 of thesaid Code.

(2A) Every record, register or other document seized under clause(cc) or produced under clause (cca) shall be returned to the person,from whom they were seized or who produce the same, within aperiod of twenty days of the date of such seizure or production,as the case may be, after copies thereof or extracts therefromcertified by that person, in such manner as may be prescribed,have been taken.

(3)If any person wilfully obstructs an Inspector in the exercise ofthe powers conferred upon by or under this Chapter or refuses toproduce any record, register or other document when so requiredunder clause (cca) of sub-section (1), he shall be punishable withimprisonment which may extend to three years or with fine, orwith both.”

(Emphasis supplied)

13. Section 23 provides for the procedure to be followed by theInspector. It includes the tendering of fair price when sample is takenof drug or cosmetic under the Chapter. There are various otherprovisions regarding the procedure to be followed by the Inspector whichincludes seizure of record/ register, documents or other material objectsand the need to notify judicial Magistrate [See Section 23(6)].

14. Section 27 provides for penalty for manufacture, sale etc. ofdrug in contravention of Chapter IV. It reads as follows:

“27. Penalty for manufacture, sale, etc., of drugs in contraventionof this Chapter.- Whoever, himself or by any other person on hisbehalf, manufactures for sale or for distribution, or sells, or stocksor exhibits or offers for sale or distributes,-

(a)any drug deemed to be adulterated under section 17A orspurious under section 17B and which when used by anyperson for or in the diagnosis, treatment, mitigation, orH

prevention of any disease or disorder is likely to cause hisdeath or is likely to cause such harm on his body as wouldamount to grievous hurt within the meaning of section 320of the Indian Penal Code (45 of 1860), solely on account ofsuch drug being adulterated or spurious or not of standardquality, as the case may be, shall be punishable withimprisonment for term which shall not be less than tenyears but which may extend to imprisonment for life andshall also be liable to fine which shall not be less than tenlakh rupees or three times value of the drugs confiscated,whichever is more:

Provided that the fine imposed on and released from,the person convicted under this clause shall be paid, by wayof compensation, to the person who had used the adulteratedor spurious drugs referred to in this clause:

Provided further that where the use of the adulteratedor spurious drugs referred to in this clause has caused thedeath of person who used such drugs, the fine imposedon and realised from, the person convicted under this clause,shall be paid to the relative of the person who had died dueto the use of the adulterated or spurious drugs referred toin this clause.

Explanation.—For the purposes of the second proviso, theexpression “relative” means—

(i) spouse of the deceased person; or

F(ii) minor legitimate son, and unmarried legitimate daughter anda widowed mother; or

(iii) parent of the minor victim; or

(iv) if wholly dependent on the earnings of the deceased personat the time of his death, son or daughter who has attained the age ofGeighteen years; or

(v) any person, if wholly or in part, dependent on the earnings ofthe deceased person at the time of his death,—

(a) the parent; or

(b) minor brother or an unmarried sister; or

(c) widowed daughter-in-law; or

(d) widowed sister; or

(e) minor child of pre-deceased son; or

(f) minor child of pre-deceased daughter where no parent ofthe child is alive; or

(g) the paternal grandparent if no parent of the member is alive;]

(b) any drug—

(i) deemed to be adulterated under section 17A, but not beinga drug referred to in clause (a), or

(ii) without valid licence as required under clause (c) of section18, shall be punishable with imprisonment for term whichshall not be less than three years but which may extend to fiveyears and with fine which shall not be less than one lakh rupeesor three times the value of the drugs confiscated, whichever ismore:

Provided that the Court may, for any adequate and specialreasons to be recorded in the judgment, impose sentence ofimprisonment for term of less than three years and of fine ofless than one lakh rupees;

(c)any drug deemed to be spurious under section 17B, but notbeing drug referred to in clause (a) shall be punishablewith imprisonment for term which shall not less than sevenyears but which may extend to imprisonment for life andwith fine which shall not be three lakh rupees or three timesthe value of the drugs confiscated, whichever is more:

Provided that the Court may, for any adequate andspecial reasons, to be recorded in the judgment, impose asentence of imprisonment for term of [8] [less than sevenyears but not less than three years and of fine of less thanone lakh rupees];

(d)any drug, other than drug referred to in clause (a) orclause (b) or clause (c), in contravention of any otherprovision of this Chapter or any rule made thereunder, shallbe punishable with imprisonment for term which shall not

Abe less than one year but which may extend to twoyears and with fine which shall not be less than twentythousand rupees:

Provided that the Court may for any adequate and specialreasons to be recorded in the judgment impose sentenceof imprisonment for term of less than one year.”

15. Sections 27A, 28, 28A, 28B and 29 provide for other offences.Section 30 contemplates penalty in the case of subsequent offences.Section 31 deals with confiscation. Section 32 which is at the centerstage of the controversy reads as follows:C“32 Cognizance of offences. — (1) No prosecution under thisChapter shall be instituted except by—

(a) an Inspector; or

(b) any gazetted officer of the Central Government or StateDGovernment authorised in writing in this behalf by the CentralGovernment or State Government by general or special ordermade in this behalf by that Government; or

(c) the person aggrieved; or

(d) recognised consumer association whether such person is aEmember of that association or not.

(2) Save as otherwise provided in this Act, no court inferior tothat of Court of Session shall try an offence punishable underthis Chapter.

(3) Nothing contained in this Chapter shall be deemed to preventFany person from being prosecuted under any other law for anyact or omission which constitutes an offence against this Chapter.”

Section 32B provides for compounding of certain offences.

16. Chapter IV-A provides for “Provisions relating to Ayurvedic,GSiddha and Unani Drugs”. It also contains provisions for the purpose ofChapter IV-A dealing with deemed definitions of Misbranded drugs,Adulterated drugs, Spurious drugs and are created offences. Section33G provides for appointment of Inspectors by the Central Governmentor the State Government. Section 33H makes the provision of Section22,23,24 and 25 and the rules, if any, thereunder applicable in respect ofHAyurvedic, Siddha and Unani drugs. Section 33M reads as follows:

“33M. Cognizance of offences.—

(1) No prosecution under this Chapter shall be instituted exceptby an Inspector [with the previous sanction of the authorityspecified under sub-section (4) of section 33G.

(2) No Court inferior to that [of Metropolitan Magistrate or of aJudicial Magistrate of the first class] shall try an offence punishableunder this Chapter.”

17. The last Chapter of the Act is Chapter V. It bears the Chapterheading “Miscellaneous”. Section 36 declares that any MetropolitanMagistrate or Judicial Magistrate of First Class may pass sentence inexcess of the powers under the CrPC. Section 36A provides that certainoffences are to be tried summarily.

18. Section 36AB provides for Special Courts. It declares thatthe Central Government or the State Government in consultation withthe Chief Justice of the High Court, shall, for certain offences designateone or more Court of Sessions as Special Court or Special Courts.Sub-section (2) provides that the Special Court may try an offence otherthan the offences covered by sub-section (1) which may be chargedagainst the accused at the same trial. Section 36AC around which mucharguments were addressed reads as follows:

“36AC. Offences to be cognizable and non-bailable in certaincases. — (1) Notwithstanding anything contained in the Code ofCriminal Procedure, 1973 (2 of 1974),—

(a) every offence, relating to adulterated or spurious drug andpunishable under clauses (a) and (c) of sub-section (1) of section13, clause (a) of sub-section (2) of section 13, sub-section (3) ofsection 22, clauses (a) and (c) of section 27, section 28, section28A, section 28B and sub-sections (1) and (2) of section 30 andother offences relating to adulterated drugs or spurious drugs,shall be cognizable.

(b) no person accused, of an offence punishable under clauses(a) and (c) of sub-section (1) of section 13, clause (a) of sub-section (2) of section 13, sub-section (3) of section 22, clauses (a)and (c) of section 27, section 28, section 28A, section 28B andsub-sections (1) and (2) of section 30 and other offences relatingto adulterated drugs or spurious drugs, shall be released on bail oron his own bond unless—

(i) the Public Prosecutor has been given an opportunity to opposethe application for such release; and

(ii) where the Public Prosecutor opposes the application, the Courtis satisfied that there are reasonable grounds for believing that heis not guilty of such offence and that he is not likely to commit anyBoffence while on bail:

Provided that person, who, is under the age of sixteen years, oris woman or is sick or infirm, may be released on bail, if theSpecial Court so directs.

(2) The limitation on granting of bail specified in clause (b) ofsub-section (1) is in addition to the limitations under the Code ofCriminal Procedure, 1973 (2 of 1974) or any other law for thetime being in force on granting of bail.

(3) Nothing contained in this section shall be deemed to affect thespecial powers of the High Court regarding bail under section 439of the Code of Criminal Procedure, 1973 (2 of 1974) and the HighCourt may exercise such powers including the power under clause(b) of sub-section (1) of that section as if the reference to“Magistrate” in that section includes also reference to “SpecialCourt” designated under section 36AB.”

ESection 36AD also being relevant is referred to:

“36AD Application of Code of Criminal Procedure, 1973 toproceedings before Special Court. —

(1) Save as otherwise provided in this Act, the provisions of theCode of Criminal Procedure, 1973 (2 of 1974) (including theprovisions as to bails or bonds), shall apply to the proceedingsbefore Special Court and for the purposes of the said provisions,the Special Court shall be deemed to be Court of Session andthe person conducting the prosecution before the Special Court,shall be deemed to be Public Prosecutor:

Provided that the Central Government or the StateGovernment may also appoint, for any case or class or group ofcases, Special Public Prosecutor.

(2) person shall not be qualified to be appointed as PublicProsecutor or Special Public Prosecutor under this section unless

he has been in practice as an advocate for not less than sevenyears, under the Union or State, requiring special knowledge oflaw.

(3) Every person appointed as Public Prosecutor or SpecialPublic Prosecutor under this section shall be deemed to be PublicProsecutor within the meaning of clause (u) of section 2 of theCode of Criminal Procedure, 1973 (2 of 1974) and the provisionsof that Code shall have effect accordingly.”

RELEVANT PROVISIONS OF THE CRPC

19. Section 2(a) defines “bailable offence” as offence shown assuch in the First Schedule, or which is made bailable under any otherlaw for the time being in force. “Non-bailable offence” means anyother offence. ‘Cognizable offence’ is defined in Section 2(c). It readsas follows:

“2(c) “ cognizable offence” means an offence for which,and”cognizable case” means case in which, police officer may,inaccordance with the First Schedule or under any other law forthe time being in force, arrest without warrant;”

(Emphasis supplied)

20. Section 2(d) defines ‘complaint’. It reads as follows:-

“2(d) “ complaint” means any allegation made orally or in writingto Magistrate, with view to his taking action under this Code,that some person, whether known or unknown, has committed anoffence, but does not include police report.

Explanation.- report made by police officer in case whichdiscloses, after investigation, the commission of non- cognizableoffence shall be deemed to be complaint; and the police officerby whom such report is made shall be deemed to be thecomplainant;”

21. Section 2(h) defines investigation as follows:

“2(h)”investigation” includes all the proceedings under this Codefor the collection of evidence conducted by police officer or byany person (other than Magistrate) who is authorised by aMagistrate in this behalf.”

(Emphasis supplied)

A22. ‘Police report’ is defined in Section 2 (r) as meaning reportforwarded by police officer to Magistrate under sub-section (2) ofSection 173. Sections 4 and 5 being relevant, we advert to the same.

“4. Trial of offences under the Indian Penal Code and other laws.-

(1) All offences under the Indian Penal Code (45 of 1860 )shall be investigated, inquired into, tried, and otherwise dealtwith according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated,inquired into, tried, and otherwise dealt with according to thesame provisions, but subject to any enactment for the timeCbeing in force regulating the manner or place of investigating,inquiring into, trying or otherwise dealing with such offences.

5. Saving.- Nothing contained in this Code shall, in the absence ofa specific provision to the contrary, affect any special or local lawfor the time being in force, or any special jurisdiction or powerDconferred, or any special form of procedure prescribed, by anyother law for the time being in force.”

23. Chapter XII comes under the heading ‘Information to thePolice and their Powers to Investigate’. Section 154 inter alia providesthat every information relevant to the commission of cognizable offenceEgiven orally to an officer in charge of Police Station shall be reduced towriting by him or under his direction, and be read over to informant.Every such information whether given in writing or reduced to writingas aforesaid shall be signed by the person giving it. The substance of thesame is to be entered in book to be kept by such officer in such formFas may be prescribed. Section 155 deals with information as to non-cognizable cases and the manner of investigation of such cases. Nopolice officer can investigate non-cognizable offence without the orderof the Magistrate having power to try such case or commit such casefor trial. Section 156 reads as under:

“156. Police officer’s power to investigate cognizable case. –G

(1) Any officer in charge of police station may, without the orderof Magistrate, investigate any cognizable case which Courthaving jurisdiction over the local area within the limits of suchstation would have power to inquire into or try under the provisionsof Chapter XIII.H

(2) No proceeding of police officer in any such case shall at anystage be called in question on the ground that the case was onewhich such officer was not empowered under this section toinvestigate.

(3) Any Magistrate empowered under section 190 may order suchan investigation as above-mentioned”.

(Emphasis supplied)

24. Section 157 provides for Procedure for Investigation. Thelimitations for the use of the statement given under Section 161 are speltout in Section 162. Section 173 provides for the report to be given oncompletion of investigation.

25. Chapter XIV deals with the “Conditions requisite for Initiationof Proceedings”. Section 190 reads as follows:

“190. Cognizance of offences by Magistrates.-

(1) Subject to the provisions of this Chapter, any Magistrate ofthe first class, and any Magistrate of the second class speciallyempowered in this behalf under sub- section (2), may takecognizance of any offence-

(a) upon receiving complaint of facts which constitute suchoffence;

(b) upon police report of such facts;

(c) upon information received from any person other than policeofficer, or upon his own knowledge, that such offence has beencommitted.

(2) The Chief Judicial Magistrate may empower any Magistrateof the second class to take cognizance under sub- section (1) ofsuch offences as are within his competence to inquire into or try.”

26. Chapter XV deals with Complaints to Magistrates. Section202 having been referred by the learned Amicus Curiae is extracted:

“202. Postponement of issue of process.-(1) Any Magistrate, onreceipt of complaint of an offence of which he is authorised totake cognizance or which has been made over to him under section192, may, if he thinks fit, postpone the issue of process against the

accused, and either inquire into the case himself or direct aninvestigation to be made by police officer or by such other personas he thinks fit,for the purpose of deciding whether or not there issufficient ground for proceeding: Provided that no such directionfor investigation shall be made,-

(a) where it appears to the Magistrate that the offence complainedof is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by Court, unless thecomplainant and the witnesses present (if any) have beenexamined on oath under section 200.

(2) In an inquiry under sub- section (1), the Magistrate may, if hethinks fit, take evidence of witnesses on oath:

Provided that if it appears to the Magistrate that the offencecomplained of is triable exclusively by the Court of Session, heshall call upon the complainant to produce all his witnesses andDexamine them on oath.

(3) If an investigation under sub- section (1) is made by personnot being police officer, he shall have for that investigation allthe powers conferred by this Code on an officer- in- charge of apolice station except the power to arrest without warrant.”

(Emphasis supplied)

27. Chapter XVI comes under the chapter heading“Commencement of Proceedings before Magistrates”. Section 204 dealswith “Issue of Process” in case where the Magistrate taking cognizanceis of the view that there is sufficient ground for proceeding in the matter.FIt may also be relevant to notice part II of the First Schedule to theCrPC. It must be remembered that cognizable offence has been definedin terms of the classification of the offences under the First Schedule.The first part of the First Schedule deals with offences under the IndianPenal Code. The second part, as it were, deals with classification ofGoffences against other laws. It reads as follows:

“Classification of Offences against other laws

28. Section 4(2) of the CrPC declares that all offences under anylaw other than the IPC shall be investigated, inquired into and tried andotherwise dealt with according to the CrPC. This is however, subject toany enactment for the time being in force which provides otherwise inthe matter of, the manner or place of investigation inter alia in regard tooffences under any law other than the IPC. The purport of Section 5 isthis:

If any special law or local law for the time being in forcecontemplates any special jurisdiction or power or any special formof procedure prescribed, unless there is something to the contrary,to be found, it is the provisions of the special law or the local lawwhich would prevail.

IMPACT OF SECTION 2 OF THE ACT

29. We have noticed that Section 2 of the Act declares that theprovisions of the Act shall be in addition to and not in derogation of theDangerous Drugs Act 1930 and any other law for the time being inforce. As far as Section (2) of the Act is concerned if the attempt of theappellant is to contend that it imports the provisions in CrPC which tendsto overwhelm, in particular, any special procedure provided under theAct, we have no hesitation in repelling the same. The purport of Section2 appears to be that Legislature intended to keep alive the provisions of

Athe Dangerous Drugs Act, 1930. It would continue to hold sway despitethe enactment of the Act. If there are any other provisions of cognatelaws dealing with the subjects dealt with by the Act, the operation ofthose Acts was to be preserved. The Act does not provide for any expressrepeal of any enactment. Nothing further needs to be stated about Section2 and we are of the view that it does not have any further repercussionBon the issue at hand.

SECTION 32 OF THE ACT

30. Coming to Section 32 of the Act, as already noted by us it fallsin chapter IV. Inspectors are appointed by the Central Government orCthe State Government from persons possessing prescribed qualificationsunder notification. Section 21 contemplates prescribing under rules thepowers which may be exercised by the Inspectors apart from the dutieswhich may be performed by him inter alia. Section 22 of the Act providesfor power of search by the Inspectors. They have power to inspect anypremise, take samples, powers of search, examine any record, register,Dmaterial object and seize them. The Legislature has undoubtedly appliedthe provisions of the CrPC in regard to searches under the Act. Section23 elaborately provides for procedure to be adopted by Inspectors.

31. Section 32 falling under section heading ‘Cognizance ofoffences’ declares, in unambiguous words, that prosecution, underEChapter IV, can be instituted only by (1) an Inspector (2) any gazettedofficer of the Central Government or State Government authorised inwriting by the respective Government by general or special order madein this behalf by that Government (3) the person aggrieved (4) arecognised consumer association whether such person is member ofFthat association or not. Section 32 further proclaims that unless it isotherwise provided, no court inferior to court of session shall try anoffence punishable under Chapter IV. Section 32(3) makes it clear thatnothing in chapter IV would stand in the way of the person beingprosecuted against under any other law for any act or omission whichconstitutes an offence against this Chapter. Section 32 was substitutedGby Act 22 of 2008. Prior to the substitution it read as follows:

“32 Cognizance of offences. — (1) No prosecution underthis Chapter shall be instituted except by an Inspector or by theperson aggrieved or by recognised consumer association whethersuch person is member of that association or not.H

(2) No court inferior to that of Metropolitan Magistrate or of aJudicial Magistrate of the first class shall try an offence punishableunder this Chapter.

(3) Nothing contained in this Chapter shall be deemed to preventany person from being prosecuted under any other law for anyact or omission which constitutes an offence against this Chapter.”

32. It will be noticed at once that Section 190 of the CrPC alsohas title ‘Cognizance of Offence by Magistrate’. Cognizance underSection 190 is contemplated in three different modes. They are - (1)complaints of facts constituting such offences, (2) police report of suchfacts, (3) upon any information received from person other than aPolice Officer or upon court being possessed of knowledge about thecommission of the offence. In other words, where the court takescognizance suo motu. comparison between Section 32 of the Act and190 of the CrPC dealing with cognizance of offences, makes it abundantlyclear that the Law Giver has provided for distinct modes in regard toprosecuting of the offences under the general law, viz., the CrPC andthe special provision, as contained in Section 32 of the Act.

33. Section 193 of the CrPC reads as follows:

“193. Cognizance of offences by Courts of Session. Except asotherwise expressly provided by this Code or by any other lawfor the time being in force, no Court of Session shall takecognizance of any offence as Court of original jurisdiction unlessthe case has been committed to it by Magistrate under thisCode.”

34. Section 195 prohibits the Court from taking any cognizance ofthe offences mentioned therein except on the complaint in writing by thepersons named therein.

35. Section 198A and Section 199 likewise permit the courts totake cognizance only upon the complaint made by the persons mentionedtherein. Similarly, Section 199 taboos cognizance of offence of defamationexcept on the complaint made by some aggrieved person.

36. Section 36AD of the Act applies the provisions of the CrPCexcept where it is otherwise provided in the Act in regard to theproceedings before the Special Court and the Special Court is deemedto be the Court of Sessions and the person conducting the prosecution is

Adeemed to be the Public Prosecutor. No doubt, the proviso empowersthe Central Government or the State Government to appoint for anycase or class or group of cases, Special Public Prosecutor.

37. The Scheme of the Act must be borne in mind when Section32, which provides, inter alia, that an Inspector can set the ball rolling, isBconsidered. The Inspectors, under the Act, are to possess the prescribedqualifications. The qualifications bear nexus with the performance ofthe specialised duties which are to be performed under the Act. Apparently,knowledge about the drugs and cosmetics goes long way in equippingthem to perform their multifarious functions. Section 22 clothing theInspector with powers must also be viewed thus in the context of theClegislative value judgment that complaint is to be moved by the Inspectorunder the Act and not by Police Officer under the CrPC. The Inspectoris expected to inspect premises where drugs and cosmetics are beingmanufactured, sold, stocked, exhibited, offered for sale or distributed.Samples are to be taken at the points of manufacturing, selling, stockingDand the points of delivery. He is expected also, where he has reason tobelieve that an offence under the Act has been committed, to searchany person, enter any place, stop and search any vehicle, examine records,and documents and seize the same. Last but not the least, Section 22(1)(d)declares that he may exercise other powers as may be necessary forcarrying the purposes of Chapter IV or any Rules made thereunder.EThe elaborate procedure to be followed by the Inspectors is also providedby the law.

38. Section 26 of the Drugs and Cosmetics Act, 1940, reads asfollows:F“26. Purchaser of drug or cosmetic enabled to obtain test

F“26. Purchaser of drug or cosmetic enabled to obtain testor analysis.—Any person or any recognised consumer association,whether such person is member of that association or not shall,on application in the prescribed manner and on payment of theprescribed fee, be entitled to submit for test or analysis to aGovernment Analyst any drug or cosmetic purchased by him or itGand to receive report of such test or analysis signed by theGovernment Analyst.

Explanation.—For the purposes of this section and section32, “recognised consumer association” means voluntaryconsumer association registered under the Companies Act, 1956Hor any other law for the time being in force.”

39. perusal of the same would indicate the role which is assignedto any person and recognized consumer association within the meaningof Section 32. Section 26 of the Drugs and Cosmetics Act, 1940 declaresthat on the application, any person or any recognized consumerassociation, in the prescribed manner and on payment of prescribed fee,is entitled to submit for test or analysis, to Government Analyst anydrug or cosmetic purchased by the person or the association and toreceive report of such test or analysis signed by the GovernmentAnalyst. There can be no gainsaying that armed with report whichreveals the commission of an offence under Chapter IV of the Act, theycan invoke Section 32 and prosecute the offender.40. Section 32 of the Act undoubtedly provides for takingcognizance of the offence by the court only at the instance of the fourcategories mentioned therein. They are: (a) Inspector under the Act; (b)Any Gazetted Officer empowered by the Central or the StateGovernment; (c) Aggrieved person; and (d) Voluntary Association. It isclear that the Legislature has not included the Police Officer as personwho can move the court. Before the matter reaches the court, underSection 190 of the CrPC, ordinarily starting with the lodging of the firstinformation report leading to the registration of the first information report,investigation is carried out culminating in report under Section 173.The Police Report, in fact, is the Report submitted under Section 173 ofthe CrPC to the court. Under Section 190 of the CrPC, the court maytake cognizance on the basis of the police report. Such procedure isalien to Section 32 of the Act. In other words, it is not open to the PoliceOfficer to submit report under Section 173 of the CrPC in regard to anoffence under Chapter IV of the Act under Section 32. In regard tooffences contemplated under Section 32(3), the Police Officer may havepower as per the concerned provisions. Being special enactment, themanner of dealing with the offences under the Act, would be governedby the provisions of the Act. It is to be noted that Section 32 declaresthat no court inferior to the Court of Sessions shall try offence punishableunder Chapter IV. We have noticed that under Section 193 of the CrPC,no Court of Sessions can take cognizance of any offence as Court ofOriginal Jurisdiction unless the case has been committed to it by aMagistrate under the CrPC. This is, undoubtedly, subject to the lawproviding expressly that that Court of Sessions may take cognizance ofany offence as the Court of Original Jurisdiction. There is no provisionin the Act which expressly authorises the special court which is the

ACourt of Sessions to take cognizance of the offence under Chapter IV.This means that the provisions of Chapters XV and XVI of the CrPCmust be followed in regard to even offences falling under Chapter IV ofthe Act. Starting with Section 200 of the Act dealing with taking ofcognizance by Magistrate on complaint, including examination of thewitnesses produced by the complainant, the dismissal of an unworthyBcomplaint under Section 203 and following the procedure under Section202 in the case of postponement of issue of process are all steps to befollowed. It is true that when the complaint under Section 32 is filedeither by the Inspector or by the Authorised Gazetted Officer beingpublic servants under Section 200, the Magistrate is exempted fromCexamining the complainant and witnesses.

41. The learned Amicus Curiae, when queried about the procedureto be adopted when complaint is lodged by persons falling in Section32(C) and (d), viz., the aggrieved person or voluntary association, itwas submitted that the Magistrate can, under Section 202 of the CrPC,Dorder an investigation by the Police Officer or any other person. perusalof Section 202 would show that in regard to an offence falling underChapter IV of the Act, being exclusively triable, by Court of Sessions,the proviso to sub-Section (1) to Section 202 prohibits the direction forinvestigation under Section 202. The proviso to sub-Section (2) of Section202 contemplates that when an offence is exclusively triable by the CourtEof Sessions, and the Magistrate proceeds under Section 202 of the CrPC,he is duty bound to call upon the complainant to produce all its witnessesand examine them on oath. Thus, the effect of the two provisions in sub-Sections (1) and (2), respectively, is as follows:

Magistrate proceeding under Section 202 of the CrPC, isFsubjected to two conditions:

a. Unlike in an ordinary case, meaning thereby, an offence whichis not exclusively triable by Court of Sessions, in case whereit is an offence exclusively triable by Court of Sessions, theinquiry can be conducted only by Magistrate himself. It isGnot open to him to cause an investigation be it by PoliceOfficer or any other person.

b. In regard to the inquiry so conducted by him, he must call uponthe complainant to produce all his witnesses and they must beexamined not on the basis of any affidavit, and not without theH

support of an oath but the examination must be under an oath.It is to be remembered that under the provisions existing underthe previous Code, an elaborate preliminary inquiry where evenan accused had right of cross-examination of witnesses, wascontemplated at the hands of the Magistrate before thecommittal order was passed. This no longer survives after theamendment.

42. Offences exclusively triable by Court of Sessions areordinarily pursued on the strength of Police Report. The Police Officerexamines witnesses under Section 161 of the CrPC, collects otherevidence, arrives at satisfaction that indeed case is made out toarraign person or persons and, accordingly, the charge-sheet is filedunder Section 173. Section 207 of the Code contemplates making availablestatements of all the witnesses examined among other documents to bemade available to the accused as provided therein. This prepares theaccused for the case he is likely to be called upon to meet in the Court ofSessions.

43. As far as complainant setting the criminal law in motion isconcerned, what is contemplated is that by the mechanism of cognizanceunder Section 200 read with Section 202, culminating in the issuance ofsummons or warrant under Section 204, there is material before theMagistrate and the court is assured that the case is not frivolous andwholly meritless going by prima facie view undoubtedly as contemplatedin law at that stage regarding the commission of cognizance offence.Apart from this, reassuring aspect, as in prosecution launched underPolice Report, the accused in trial by Court of Sessions to whichCourt case would stand committed under Section 209, would also knowbeforehand the case he would have to meet having regard to the materialswhich weighed with the Magistrate and which is also made available tohim under Section 208 of the Act. In such circumstances, we need notconsider further the argument of the learned Amicus Curiae that adirection for investigation by the Magistrate under Section 202 wouldnot be tabooed as the result of the investigation by the Police Officerpursuant to direction would not amount to report under Section 173.This is for the reason that being offences exclusively triable by the Courtof Sessions, as noticed earlier, there is bar against the Magistratedirecting investigation under Section 202 by the Police Officer orotherwise.

A44. The learned Amicus Curiae submitted that the registering ofan FIR under Section 154 of the CrPC in regard to reference underChapter IV of the Act is futile exercise. It is his submission that thefiling of the First Information Statement (FIS) (We notice his complaintthat even courts refer to the FIS as the complaint whereas complaintis what is contemplated under Section 190 of the CrPC which is filedBbefore court) constitutes information provided under Section 154 beforea Station House Officer In-Charge of Police Station which activises theOfficer and he investigates the matter with the object of filing reportunder Section 173 which is also described as charge-sheet in casewhere the Officer finds that an offence has been committed. It is namedCa final report where no basis is found for prosecution. On the strength ofthe same, he invites the court concerned to take cognizance. If underSection 32 of the Act, the Police Officer has no authority to file report,he questions the actions of the Police Officer as one which is bound todie natural death. He would submit that declaring certain offencesunder Section 36AC cognisable, is only to empower the arrest of theDaccused.

45. It may be noticed at this juncture, that the Act does contemplatearrest. Section 36AC clearly declares that certain offences are non-bailable. Section 36AC(b) proclaims that no person accused of theoffences mentioned therein shall be released on bail or on his own bondEunless the Public Prosecutor has been given an opportunity to opposethe application of such release and where the Public Prosecutor opposes,the court is satisfied that there are reasonable ground for believing thathe is not guilty of such offence and that he is not likely to commit anyoffence while on bail. This limitation on the grant of bail is in addition to

Fthe limitations under the CrPC or and under any other law for the timebeing in force on grant of bail. The special powers, however, of the HighCourt regarding the grant of bail under Section 439 of the CrPC, ispreserved as found therein.

46. The argument of Ms. Pinky Anand, learned Additional SolicitorGGeneral is that having regard to the fact that certain offences underSection 36AC have been declared cognizable, the powers of the policeunder the CrPC including the duty to register FIR under Section 154cannot be obviated. The only prohibition is against the Police Officerlodging the charge sheet. There can be no taboo on the Police Officerregistering the FIR and even conducting the investigation. This brings upH

another issue, who is the person who can arrest person accused of anoffence in Chapter IV of the Act? Is it open to Police Officer actingunder the CrPC to arrest such person? Is the Inspector under the Actempowered to arrest person accused of an offence under Chapter IVof the Act? Before we deal with this aspect, we may look at how thisCourt spoke in the past in the matter of taking cognizance among otheraspects.

LOOK AT HOW THIS COURT SPOKE IN THE PAST

47. In Jeewan Kumar Raut and another v. Central Bureau ofInvestigation[3], the case arose under the Transplantation of Human OrgansAct, 1994 (TOHO Act). Section 22 of this Act reads as follows:

“22. Cognizance of offence.—

(1) No court shall take cognizance of an offence under this Actexcept on complaint made by—

(a) the Appropriate Authority concerned, or any officer authorisedin this behalf by the Central Government or the State Governmentor, as the case may be, the Appropriate Authority; or

(b) person who has given notice of not less than sixty days, insuch manner as may be prescribed, to the Appropriate Authorityconcerned, of the alleged offence and of his intention to make acomplaint to the court.

(2) No court other than that of Metropolitan Magistrate or aJudicial Magistrate of the first class shall try any offence punishableunder this Act.

(3) Where complaint has been made under clause (b) of sub-section (1), the court may, on demand by such person, direct theAppropriate Authority to make available copies of the relevantrecords in its possession to such person.”

48. The appellants were Medical Practitioners. An FIR wasregistered against them under Section 420 of the IPC and Sections 18and 19 of the TOHO Act at the Police Station. The investigation wastransferred to the CBI, respondent in the case. The CBI registeredanother FIR which included Sections 18 and 19 of the TOHO Act.Appellant no.2 was arrested and produced before the Magistrate.

3 (2009) 7 SCC 526

AAppellant no.1 surrendered. The respondent filed complaint underSection 22 of TOHO Act pointing out that the period of 90 days from thedetention expired on 07.05.2008, Appellant no.2 filed an application forgrant of bail within the meaning of Section 167(2) of the CrPC. It was,while considering the same, this Court held, inter alia, as follows:

“19. TOHO is special Act. It deals with the subjectsmentioned therein, viz. offences relating to removal of humanorgans, etc. Having regard to the importance of the subject only,enactment of the said regulatory statute was imperative.

20. TOHO provides for appointment of an appropriateCauthority to deal with the matters specified in sub-section (3) ofSection 13 thereof. By reason of the aforementioned provision,an appropriate authority has specifically been authorised inter aliato investigate any complaint of the breach of any of the provisionsof TOHO or any of the rules made thereunder and takeappropriate action. The appropriate authority, subject to exceptionsDprovided for in TOHO, thus, is only authorised to investigate casesof breach of any of the provisions thereof, whether penal orotherwise.

21. Ordinarily, any person can set the criminal law in motion.Parliament and the State Legislatures, however, keeping in viewEthe sensitivity and/or importance of the subject, have carved outspecific areas where violations of any of the provisions of specialstatute like TOHO can be dealt with only by the authoritiesspecified therein. The FIR lodged before the officer in charge ofGurgaon Police Station was by way of information. It disclosedFnot only commission of an offence under TOHO but also undervarious provisions of the Penal Code. The officer in charge of thepolice station, however, was not authorised by the appropriateGovernment to deal with the matter in relation to TOHO; but, therespondent was. In that view of the matter, the investigation ofthe said complaint was handed over to it.

xxxxxx

xxx

23. TOHO being special Act and the matter relating todealing with offences thereunder having been regulated by reasonof the provisions thereof, there cannot be any manner of doubtwhatsoever that the same shall prevail over the provisions of the

Code. The investigation in terms of Section 13(3)(iv) of TOHO,thus, must be conducted by an authorised officer. Nobody elsecould do it. For the aforementioned reasons, the officer in chargeof Gurgaon Police Station had no other option but to hand overthe investigation to the appropriate authority.

xxxxxxxxxxxx

25. Section 22 of TOHO prohibits taking of cognizanceexcept on complaint made by an appropriate authority or theperson who had made complaint earlier to it as laid down therein.The respondent, although, has all the powers of an investigatingagency, it expressly has been statutorily prohibited from filing apolice report. It could file complaint petition only as an appropriateauthority so as to comply with the requirements contained inSection 22 of TOHO. If by reason of the provisions of TOHO,filing of police report by necessary implication is necessarilyforbidden, the question of its submitting report in terms of sub-section (2) of Section 173 of the Code did not and could not arise.In other words, if no police report could be filed, sub-section (2)of Section 167 of the Code was not attracted.

xxxxxx

28. To put it differently, upon completion of the investigation,an authorised officer could only file complaint and not policereport, as specific bar has been created by Parliament. In thatview of the matter, the police report being not complaint andvice versa, it was obligatory on the part of the respondent to choosethe said method invoking the jurisdiction of the Magistrateconcerned for taking cognizance of the offence only in the mannerlaid down therein and not by any other mode. The procedure laiddown in TOHO, thus, would permit the respondent to file acomplaint and not report which course of action could havebeen taken recourse to but for the special provisions contained inSection 22 of TOHO.”

(Emphasis supplied)

49. We may also notice the hope expressed by the Court forParliamentary intervention expressing doubt about the absence of powerto arrest with the Officer who is authorised to carry out the investigation:

A“37. In the present case, however, the respondent havingspecially been empowered both under the 1946 Act as also underthe Code to carry out investigation and file charge-sheet isprecluded from doing so only by reason of Section 22 of TOHO.It is doubtful as to whether in the event of authorisation of anofficer of the Department to carry out investigation on complaintBmade by third party, he would be entitled to arrest the accusedand carry on investigation as if he is police officer. We hope thatParliament would take appropriate measures to suitably amendthe law in the near future.”

50. In Jamiruddin Ansari v. Central Bureau of Investigation andCanother[4], the case arose under the Maharashtra Control of OrganizedCrime Act, 1999 (MCOCA). private complaint was filed against certainaccused persons by person. The Special Judge ordered theCommissioner of Police to investigate into the complaint under Section156(3) of the CrPC. The State took the stand in Writ Petition challenging

Dthe said order that in view of Sections 23(2) of the MCOCA sans previoussanction as contemplated therein, the Court could not take cognizance.It is necessary to advert to Sections 9 and 23 of the said Act. Sections(9) inter alia and 23 of MCOCA reads as follows:

“9. Procedure and powers of Special Court.—(1) SpecialCourt may take cognizance of any offence without the accusedEbeing committed to it for trial, upon receiving complaint of factswhich constitute such offence or upon police report of suchfacts.

(2)-(3)***

xxxF

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“23. Cognizance of, and investigation into, an offence.—(1) Notwithstanding anything contained in the Code,—

(a) no information about the commission of an offence oforganised crime under this Act, shall be recorded by police officerwithout the prior approval of the police officer not below the rankGof the Deputy Inspector General of Police;

(b) no investigation of an offence under the provisions ofthis Act shall be carried out by police officer below the rank ofthe Deputy Superintendent of Police.

H4 (2009) 6 SCC 316

(2) No Special Court shall take cognizance of any offence underthis Act without the previous sanction of the police officer notbelow the rank of Additional Director General of Police.”

51. The Full Bench which was constituted to hear the matter, bya majority, took the view that private complaint under Section 9, wasnot trammelled by the requirement under Section 23. This Court held,inter alia, as follows:

“67. We are also inclined to hold that in view of the provisions ofSection 25 of MCOCA, the provisions of the said Act would havean overriding effect over the provisions of the Criminal ProcedureCode and the learned Special Judge would not, therefore, be entitledto invoke the provisions of Section 156(3) CrPC for ordering aspecial inquiry on private complaint and taking cognizancethereupon, without traversing the route indicated in Section 23of MCOCA. In other words, even on private complaint about thecommission of an offence of organised crimeunder MCOCA cognizance cannot be taken by the Special Judgewithout due compliance with sub-section (1) of Section 23, whichstarts with non obstante clause.

68. As indicated hereinabove, the provisions of Section 23 are thesafeguards provided against the invocation of the provisions ofthe Act which are extremely stringent and far removed from theprovisions of the general criminal law. If, as submitted on behalfof some of the respondents, it is accepted that private complaintunder Section 9(1) is not subject to the rigours of Section 23, thenthe very purpose of introducing such safeguards lose their veryraison d’être. At the same time, since the filing of privatecomplaint is also contemplated under Section 9(1) of MCOCA, forit to be entertained it has also to be subject to the rigours of Section23. Accordingly, in view of the bar imposed under sub-section (2)of Section 23 of the Act, the learned Special Judge is precludedfrom taking cognizance on private complaint upon separateinquiry under Section 156(3) CrPC. The bar of Section 23(2)continues to remain in respect of complaints, either of privatenature or on police report.”

52. Thereafter, the Court proceeded to harmonise the provisionsby holding as follows:

A“69. In order to give harmonious construction to theprovisions of Section 9(1) and Section 23 of MCOCA, upon receiptof such private complaint the learned Special Judge has to forwardthe same to the officer indicated in clause (a) of sub-section (1)of Section 23 to have an inquiry conducted into the complaint by apolice officer indicated in clause (b) of sub-section (1) and onlyBthereafter take cognizance of the offence complained of, if sanctionis accorded to the Special Court to take cognizance of such offenceunder sub-section (2) of Section 23.”53. It is pertinent to notice that in the said enactment, under Section23, there was taboo against recording of any information under theCAct without the prior approval of the Police Officer not below the rankof the Deputy Inspector General of Police. This must be understood assupplanting the provisions of Section 154 of the CrPC to the extent thatthe modification was spelt out. Not only could the information not be sorecorded without the prior approval, investigation also cannot be carriedDout except by Police Officer of the rank of Deputy Superintendent ofPolice and above. This is apart from the prohibition against takingcognizance of an offence under the said Act without the previous sanctionof the Police Officer not below the rank of Additional Director Generalof Police.

E54. The decision of this Court in H.N. Rishbud and Inder Singh v.State of Delhi, ETC.5 dealt with case under the Prevention of CorruptionAct, 1947. Investigation in the said case was undertaken by an Officerwithout authorisation by the Magistrate under Section 5(4) of thePrevention of Corruption Act, 1947. Cognizance was taken and the trialwent on. The accused thereupon pointed out the flaw in the investigation.FIt is in the said circumstances, this Court proceeded to deal with what isinvestigation, inter alia:

“8. … Thus, under the Code investigation consists generallyof the following steps: (1) Proceeding to the spot, (2) Ascertainmentof the facts and circumstances of the case, (3) Discovery andGarrest of the suspected offender, (4) Collection of evidence relatingto the commission of the offence which may consist of (a) theexamination of various persons (including the accused) and thereduction of their statements into writing, if the officer thinks fit,

5 AIR 1955 SC 196H

(b) the search of places or seizure of things considered necessaryfor the investigation and to be produced at the trial, and (5)Formation of the opinion as to whether on the material collectedthere is case to place the accused before Magistrate for trialand if so taking the necessary steps for the same by the filing of acharge-sheet under Section 173. …”

55. No doubt, the Court went on to take the view that the invalidityof the investigation, if brought to the knowledge of the Court at asufficiently early stage, remedial steps may be taken to get the illegalitycured. However, it was found that if cognizance is taken on PoliceReport vitiated by the breach of mandatory provision relating toinvestigation, the result of the trial cannot be affected unless it has resultedin miscarriage of justice. It is pertinent to note that the Court made thefollowing observations as well:

“9. … Here we are not concerned with the effect of the breachof mandatory provision regulating the competence or procedureof the Court as regards cognizance or trial. It is only with referenceto such breach that the question as to whether it constitutes anillegality vitiating the proceedings or mere irregularity arises.”

(Emphasis supplied)

56. In Institute of Chartered Accountants of India v. Vimal KumarSurana and another6, the matter arose under the Chartered AccountsAct, 1949. The respondent, who had passed the examination of CharteredAccountant but was not member of the appellant-Institute, was soughtto be prosecuted on the basis that he had represented before the TaxAuthorities on the basis of the Power of Attorney or as LegalRepresentative and was submitting documents by preparing forged seals.The Authorised Representative of the appellant-Institute submitted acomplaint to the Police Officer. After investigation, the Police filed achallan of offences under the IPC and Sections 24 and 26 of the CharteredAccountants Act. The same was successfully questioned by therespondent on the basis that it fell foul of the mandate of Section 28 ofthe Chartered Accounts Act.

57. Section 28 of the Chartered Accountants Act, 1949 reads asfollows:

6 (2011) 1 SCC 534

A“28. Sanction to prosecute

No person shall be prosecuted under this Act except on acomplaint made by or under the order of the Council or of theCentral Government.”

58. This Court went on to notice the line of decisions rendered bythis Court which permitted prosecution of distinct offences by way ofdealing with the argument based on prohibition against prosecution andpunishment for the same offence flowing from Article 20(2) of theConstitution of India. We notice paragraphs 20,21 and 41 of Vimal KumarSurana and another(supra):

“20. In other words, if the particular act of member ofthe Institute or non-member or company results in contraventionof the provisions contained in Section 24 or sub-section (1) ofSections 24-A, 25 or 26 and such act also amounts to criminalmisconduct which is defined as an offence under IPC, then acomplaint can be filed by or under the order of the Council or ofthe Central Government under Section 28, which may ultimatelyresult in imposition of the punishment prescribed under Section 24or sub-section (2) of Sections 24-A, 25 or 26 and such member ornon-member or company can also be prosecuted for any identifiedoffence under IPC.

21. The object underlying the prohibition contained in Section28 is to protect the persons engaged in profession of CharteredAccountants against false and untenable complaints fromdissatisfied litigants and others. However, there is nothing in thelanguage of the provisions contained in Chapter VII from which itcan be inferred that Parliament wanted to confer immunity uponthe members and non-members from prosecution and punishmentif the action of such member or non-member amounts to an offenceunder IPC or any other law.

xxx

41. It is also apposite to mention that except the provisioncontained in Section 28 against the prosecution of person, whois alleged to have acted in contravention of sub-section (1) ofSections 24, 24-A, 25 or 26 otherwise then on complaint madeby or under the order of the Council or the Central Government,the Act does not specify the procedure to be followed for punishing

such person. In the absence of any such provision, the procedureprescribed in CrPC has to be followed for inquiry, investigationand trial of the complaint which may be filed for contravention ofany of the provisions contained in Chapter VII of the Act—Section4 CrPC.”

59. In State (NCT of Delhi) v. Sanjay, ETC., ETC.7, the matterarose under the Mines and Minerals Development and Regulation Act,1957 (MMDR Act) as also under Sections 378 and 379 of the IPC andthe question which arose for decision was whether the provisions ofSections 21 and 22, apart from other provisions of the MMDR Act,operated as bar to prosecution for offences under Section 379/114 andother provisions of the IPC. Section 21 of the said Act prescribes variouspenalties. Section 22 deals with cognizance of offences and it reads asfollows:

“22.Cognizance of offences.—No court shall takecognizance of any offence punishable under this Act or any Rulesmade thereunder except upon complaint in writing made by aperson authorised in this behalf by the Central Government or theState Government.”

60. The Court was dealing with appeals from judgments of HighCourts of Delhi and Gujarat. The registration of the cases was challengedon the basis of Section 22 of the MMDR Act. Paragraphs 8, 9, 10 and 11reveals the questions which arose and how it came to be dealt with bythe High Court:

“8. Criminal Appeal No. 499 of 2011, as stated above, aroseout of the order [Sanjay v. State, (2009) 109 DRJ 594] passed bythe Delhi High Court. The Delhi High Court formulated threeissues for consideration:

(1) Whether the police could have registered an FIR in thecase;

(2) Whether cognizance can be taken by the Magistrateconcerned on the basis of police report; and

(3) Whether case of theft was made out for permittingregistration of an FIR under Sections 379/411 of the Penal Code.

9. The Delhi High Court after referring various provisionson the MMDR Act vis-à-vis the Code of Criminal Proceduredisposed of the application directing the respondent to amend theFIR, which was registered, by converting the offence mentionedtherein under Sections 379/411/120-B/34 IPC to Section 21 of theMMDR Act. The High Court in para 18 of the impugned orderheld as under:

“18. In view of the aforesaid and taking into considerationthe provisions contained under Section 21(6) of the said Act Ihold that:

(i) The offence under the said Act being cognizableoffence, the police could have registered an FIR in this case;

(ii) However, so far as taking cognizance of anoffence under the said Act is concerned, it can be taken bythe Magistrate only on the basis of complaint filed by anauthorised officer, which may be filed along with the policereport;

(iii) Since the offence of mining of sand withoutpermission is punishable under Section 21 of the said Act,the question of the said offence being an offence underSection 379 IPC does not arise because the said Act makesillegal mining as an offence only when there is no permit/licence for such extraction and complaint in this regard isfiled by an authorised officer.”

10. On the other hand the Gujarat High Court formulated thefollowing questions for consideration:

(1) Whether Section 22 of the Act would debar even lodgingan FIR before the police with respect to the offences punishableunder the said Act and the Rules made thereunder?

(2) In case such FIRs are not debarred and the police arepermitted to investigate, can the Magistrate concerned takecognizance of the offences on police report?

(3) What would be the effect on the offences punishableunder the Penal Code in view of the provisions contained in theAct?

11. The Gujarat High Court came to the following conclusion:

(i) The offence under the said Act being cognizableoffence, the police could have registered an FIR in this case;

(ii) However, so far as taking cognizance of offenceunder the said Act is concerned, it can be taken by theMagistrate only on the basis of complaint filed by an authorisedofficer, which may be filed along with the police report;

(iii) Since the offence of mining of sand withoutpermission is punishable under Section 21 of the said Act, thequestion of said offence being an offence under Section 379IPC does not arise because the said Act makes illegal miningas an offence only when there is no permit/licence for suchextraction and complaint in this regard is filed by an authorisedofficer.”

61. The Gujarat High Court also held that Section 22 did not prohibitregistering an FIR by the Police in regard to offence under the MMDRAct and the Rules thereunder. However, it was not open to the Magistrateto take cognizance. This Court, after referring to the decisions in Sanjay,ETC., ETC. (supra), held as follows:

“69. Considering the principles of interpretation and thewordings used in Section 22, in our considered opinion, the provisionis not complete and absolute bar for taking action by the policefor illegal and dishonestly committing theft of minerals includingsand from the riverbed. The Court shall take judicial notice of thefact that over the years rivers in India have been affected by thealarming rate of unrestricted sand mining which is damaging theecosystem of the rivers and safety of bridges. It also weakensriverbeds, fish breeding and destroys the natural habitat of manyorganisms. If these illegal activities are not stopped by the Stateand the police authorities of the State, it will cause seriousrepercussions as mentioned hereinabove. It will not only changethe river hydrology but also will deplete the groundwater levels.

70. There cannot be any dispute with regard to restrictionsimposed under the MMDR Act and remedy provided therein. Inany case, where there is mining activity by any person incontravention of the provisions of Section 4 and other sections ofthe Act, the officer empowered and authorised under the Act

shall exercise all the powers including making complaint beforethe Jurisdictional Magistrate. It is also not in dispute that theMagistrate shall in such cases take cognizance on the basis of thecomplaint filed before it by duly authorised officer. In case ofbreach and violation of Section 4 and other provisions of the Act,the police officer cannot insist the Magistrate for taking cognizanceunder the Act on the basis of the record submitted by the policealleging contravention of the said Act. In other words, theprohibition contained in Section 22 of the Act against prosecutionof person except on complaint made by the officer is attractedonly when such person is sought to be prosecuted for contraventionof Section 4 of the Act and not for any act or omission whichconstitutes an offence under the Penal Code.

71. However, there may be situation where personwithout any lease or licence or any authority enters into river andextracts sand, gravel and other minerals and remove or transportthose minerals in clandestine manner with an intent to removedishonestly those minerals from the possession of the State, isliable to be punished for committing such offence under Sections378 and 379 of the Penal Code.

72. From close reading of the provisions of the MMDRAct and the offence defined under Section 378 IPC, it is manifestthat the ingredients constituting the offence are different. Thecontravention of terms and conditions of mining lease or doingmining activity in violation of Section 4 of the Act is an offencepunishable under Section 21 of the MMDR Act, whereasdishonestly removing sand, gravel and other minerals from theriver, which is the property of the State, out of the State’spossession without the consent, constitute an offence of theft.Hence, merely because initiation of proceeding for commissionof an offence under the MMDR Act on the basis of complaintcannot and shall not debar the police from taking action againstpersons for committing theft of sand and minerals in the mannermentioned above by exercising power under the Code of CriminalProcedure and submit report before the Magistrate for takingcognizance against such persons. In other words, in case wherethere is theft of sand and gravel from the government land, thepolice can register case, investigate the same and submit final

report under Section 173 CrPC before Magistrate havingjurisdiction for the purpose of taking cognizance as provided inSection 190(1)(d) of the Code of Criminal Procedure.

73. After giving our thoughtful consideration in the matter,in the light of the relevant provisions of the Act vis-à-vis the Codeof Criminal Procedure and the Penal Code, we are of the definiteopinion that the ingredients constituting the offence under theMMDR Act and the ingredients of dishonestly removing sandand gravel from the riverbeds without consent, which is theproperty of the State, is distinct offence under IPC. Hence, forthe commission of offence under Section 378 IPC, on receipt ofthe police report, the Magistrate having jurisdiction can takecognizance of the said offence without awaiting the receipt ofcomplaint that may be filed by the authorised officer for takingcognizance in respect of violation of various provisions of theMMDR Act. Consequently, the contrary view taken by thedifferent High Courts cannot be sustained in law and, therefore,overruled.Consequently, these criminal appeals are disposed ofwith direction to the Magistrates concerned to proceedaccordingly.”

(Emphasis supplied)

62. Chapter XII of the CrPC carries the chapter heading“Information to the Police and their Powers to Investigate”. The Chapterstarts off with Section 154 carrying Section heading “Information incognizable cases”. It declares that every information relating to acognizable offence given to an officer in charge of the police station, ifgiven orally, is to be reduced to writing and whether given in writing orreduced to writing it is to be signed by the informant. The key elementsof Section 154 CrPC can be noticed. Information in relation to acognizable offence reaching the officer in charge of police stationwhich is ordinarily understood as first information statement concerningcognizable offences sets the ball rolling so far as the police officer, incharge of police station is concerned. The next provision to notice inthe Chapter is Section 156. It provides that any officer in charge of apolice station may without the order from Magistrate investigate anycognizable offence within which court, having jurisdiction over localarea within the limits of such station, would have the power to enquireinto or try under the provisions of Chapter XIII. In fact, Section 177 of

Athe CrPC, which is the first Section in Chapter XIII dealing withjurisdiction of Criminal Courts Inquiries and Trial, proclaims that everyoffence shall ordinarily be enquired into and tried by court within whosejurisdiction, the offence was committed. Thus, ordinarily, it is the PoliceOfficer, within whose jurisdiction the cognizable offence is committed,would have the jurisdiction to investigate that offence. Section 178Bonwards provide for the exceptions to Section 177 and we need notprobe this matter further. Sub-section (2) declares the proceedings ofpolice officer in case of cognizable offence shall not in any stage becalled in question on the ground that the case was one which he was notempowered to investigate under the provision. Lastly, sub-section (3)Cprovides that any Magistrate who is empowered under Section 190 mayorder such an investigation which the officer is to undertake under sub-section (1). It is next relevant to notice Section 157 CrPC:“157. Procedure for investigation preliminary inquiry.(1) If, frominformation received or otherwise, an officer in charge of policeDstation has reason to suspect the commission of an offence whichhe is empowered under section 156 to investigate, he shall forthwithsend report of the same to Magistrate empowered to takecognizance of such offence upon police report and shall proceedin person, or shall depute one of his subordinate officers not beingbelow such rank as the State Government may, by general orEspecial order, prescribe in this behalf, to proceed, to the spot, toinvestigate the facts and circumstances of the case, and, ifnecessary, to take measures for the discovery and arrest of theoffender; Provided that-

(a)when information as to the commission of any suchFoffence is given against any person by name and the caseis not of serious nature, the officer in charge of policestation need not proceed in person or depute subordinateofficer to make an investigation on the spot;

(b)if it appears to the officer in charge of police stationthat there is no sufficient ground for entering on aninvestigation, he shall not investigate the case.

(2) In each of the cases mentioned in clauses (a) and (b) of theproviso to sub-section (1), the officer in charge of the police stationshall state in his report his reasons for not fully complying with theHrequirements of that sub- section, and, in the case mentioned in

clause (b) of the said proviso, the officer shall also forthwith notifyto the informant, if any, in such manner as may be prescribed bythe State Government, the fact that he will not investigate thecase or cause it to be investigated.”

63. It comes under the section heading ’Procedure forinvestigation’. The body of the Section can be split-up into the followingparts - (i) An officer in charge of police station may from informationreceived have reason to suspect the commission of an offence. He mayalso have reason to suspect the commission of cognizable offence noton the basis of any information but otherwise. (ii) As far as informationis concerned, it is clearly relatable to the information which has beenprovided to him within the meaning of Section 154. Cases where he actson his own knowledge would be covered by the expression otherwise.(iii) The offences must be an offence which he is empowered underSection 156 to investigate. We have noticed that police officer isempowered to investigate cognizable offence without an order of theMagistrate. As far as non-cognizable offence is concerned, he cannotinvestigate such offence without the order of the Magistrate having powerto try or commit the case for trial. (iv) However, police officer whoundertakes to investigate the matter is obliged to forthwith send reportof the same to the Magistrate empowered to take cognizance of anoffence upon police report. It is at once relevant to notice in the factsof this case that this indispensable element is not present. This is for thereason that under Section 32 of the Act, Magistrate is not competentto take cognizance of the offences under Chapter IV of the Act upon apolice report. At this juncture, we may notice Section 158 CrPC. It speaksabout the manner of sending the report to the Magistrate under Section157. It is matter governed by general or special order issued by theState Government. Quite clearly even Section 158 cannot apply in thecase of cognizable offence falling under Chapter IV of the Act for thereasons which we have adverted to. Section 159 enables the Magistrateon receiving such report to direct investigation or if he thinks fit at onceto proceed or depute any Magistrate subordinate to him to proceed, tohold preliminary inquiry or otherwise to dispose of the case in themanner provided in the Code. It is clear that the purpose of Section 157is to hold the police officer accountable to keep informed the Magistrate.It acts as an assurance that the reports are not tampered, and that therights of the accused are sought to be secured. The purport of Section159 is also to enable the Magistrate to exercise control over the

Ainvestigation. All these aspects are irrelevant and out of bounds both forthe police officer and the Magistrate in respect of an offence fallingunder chapter IV of the Act.

64. Section 160 refers to investigation under the Chapter, viz.,Chapter XII. Section 161 speaks about the examination of witnessesBand how the statements are to be reduced to writing. Again, Section 161speaks about an investigation carried out under Chapter XII. The use towhich statements under Section 161 can be put and the limitation on thesame are spelt out in Section 162 CrPC. Reverting back to Section 157,we have taken note of the requirement about the police officer reportingto the Magistrate about the reason to suspect entertained by the policeCofficer about the commission of cognizable offence on which theMagistrate is to take cognizance on report. Be it remembered that theMagistrate can take cognizance under Section 190 of the CrPC on acomplaint, police report or information received from any person otherthan police officer or otherwise. Section 157 appears to contemplateDinformation received under Section 154 or knowledge gained otherwiseabout the commission of cognizance offence clothing the police officerwith the power to investigate leading to the sending of the report to theMagistrate being confined to cases where officer intends to send thepolice report which has been defined as the report under Section 173 ofthe CrPC. In regard to taking cognizance under Section 32 of the Act, itEis unambiguously clear that there is no place for police report withinthe meaning of Section 173 of the CrPC in regard to offences fallingunder Chapter IV of the Act. Section 157 contemplates that the Officerproceeding either by himself or through his subordinate Officer toinvestigate the facts and circumstances, and if necessary, to takeFmeasures for the discovery and the arrest of the offender. But on readingthe provisions, we gather the unmistakable impression that the law giverhas empowered the police officer to investigate in the case of cognizableoffence without any order of the Magistrate where he ultimately in anappropriate case wishes the Court to take cognizance based on thematerial he gathers and transmits police report. If this impression ofGours is not flawed, an inevitable corollary would be that in the case ofoffence under Chapter IV of the Act though it be cognizable, policeofficer would not have the power to investigate the matter. Section 169speaks about the duty to release person in custody if it is found oninvestigation that there is no sufficient evidence or reasonable ground ofHsuspicion to justify forwarding such person to the Magistrate. Section170 deals with cases where an officer conducting investigation findssufficient evidence or reasonable ground and the accused is forwardedto the Magistrate empowered to take cognizance of the offence upon areport. Again, the cardinal requirement for the officer to invoke Section170 is availability of power with the Magistrate to take cognizance upona police report. This key requirement is absent in the case of an offencefalling under Chapter IV of the Act. The link therefore snaps. Section173 speaks about the report on completion of the investigation for thepolice officer. Section 173 (5) is to be read with Section 170, that is tosay, in case where there is sufficient material for prosecuting theconcerned person, the documents and the statements of witnesses areto be forwarded to the Magistrate as provided therein. We have alreadynoted Section 190 of the CrPC. Sections 154, 156, 157, 158, 159, 160,161, 170 and 173 are part of scheme of provisions geared to empowerand require investigation of cognisable offences which are to culminatein police report within the meaning of Section 190(b) of the CrPC.However, what is applicable in respect of offences under Chapter IV ofthe Act is not 190 of the CrPC but Section 32 of the Act which does notpermit cognizance being taken on police report. The entire exercise ofa police officer proceeding on basis of FIR becomes futile. It is notcontemplated in law. It therefore becomes unauthorised.

IMPACT OF LALITA KUMARI V. GOVERNMENT OFUTTAR PRADESH AND OTHERS[8]

65. In the said case, Constitution Bench of this Court has heldthat registration of an FIR is mandatory under Section 154 of the CrPC,if the information discloses commission of cognizable offence and nopreliminary inquiry is permissible in such situation. It was further heldthat preliminary inquiry may be conducted only to ascertain whether acognizable offence is disclosed or not, if the information received doesnot disclose cognizable offence but indicates the need for such aninquiry. The Court has also indicated certain cases where preliminaryinquiry may be conducted, depending on the facts and circumstances ofeach case. They include matrimonial disputes, commercial offences andcases where there is abnormal delay/latches. This Court also held thatthe aforesaid were not exhaustive of all conditions which may warrant apreliminary inquiry.

8 (2014) 2 SCC 1

A66. We would think that this Court was not, in the said case,considering case under the Act or cases similar to those under the Act,and we would think that having regard to the discussion which we havemade and on conspectus of the provisions of the CrPC and Section 32of the Act, the principle laid down in Lalita Kumari (supra) is not attractedwhen an information is made before Police Officer making out theBcommission of an offence under Chapter IV of the Act mandating aregistration of FIR under Section 154 of the CrPC.

DUTY OF POLICE OFFICER UNDER SECTION 154 OF THECRPC IRRESPECTIVE OF IMPACT OF TERRITORIALJURISDICTIONC

67. In State of A.P. v. Punati Ramulu and others9, the PoliceConstable had refused to record the complaint on the ground that thesaid Police Station had no territorial jurisdiction over the place of crime.It was held as follows:

“4. … It was certainly dereliction of duty on the part ofDthe constable because any lack of territorial jurisdiction, could nothave prevented the constable from recording information aboutthe cognizable offence and forwarding the same to the policestation having jurisdiction over the area in which the crime wassaid to have been committed.”E

(Emphasis supplied)

68. In Satvinder Kaur v. State (Govt. of NCT of Delhi) andanother10, this Court held, inter alia, as follows:

“10. It is true that territorial jurisdiction also is prescribedFunder sub-section (1) to the extent that the officer can investigateany cognizable case which court having jurisdiction over thelocal area within the limits of such police station would have powerto enquire into or try under the provisions of Chapter XIII.However, sub-section (2) makes the position clear by providingthat no proceeding of police officer in any such case shall at anyGstage be called in question on the ground that the case was onewhich such officer was not empowered to investigate. Afterinvestigation is completed, the result of such investigation is requiredto be submitted as provided under Sections 168, 169 and 170.

9 AIR 1993 SC 2644H10 AIR 1999 SC 3596

Section 170 specifically provides that if, upon an investigation, itappears to the officer in charge of the police station that there issufficient evidence or reasonable ground of suspicion to justifythe forwarding of the accused to Magistrate, such officer shallforward the accused under custody to Magistrate empoweredto take cognizance of the offence upon police report and to trythe accused or commit for trial. Further, if the investigating officerarrives at the conclusion that the crime was not committed withinthe territorial jurisdiction of the police station, then FIR can beforwarded to the police station having jurisdiction over the area inwhich the crime is committed. But this would not mean that in acase which requires investigation, the police officer can refuse torecord the FIR and/or investigate it.”

(Emphasis supplied)

69. This was case where the FIR had been quashed by theHigh Court under Section 482 CrPC on the ground that the Police Officerat Delhi was not having territorial jurisdiction. It was case under Section498A of the IPC. This Court set aside the judgment of the High Courtquashing the FIR, also taking note of Section 156(2) of the IPC.

70. There is practice of registering an FIR as Zero FIR, whenthe Police Station at which FIR is registered, does not have territorialjurisdiction, and then, it is made over to the Police Station which hasjurisdiction in the matter. Could it, therefore, be said that when informationis given to Police Officer, within the meaning of Section 154 of theCrPC, in relation to the commission of cognizable offence under ChapterIV of the Act, the Police Officer must register FIR and then make itover to the Inspector.

71. It is to be noted that the duty to register FIR, when informationis received about cognizable offence falling under Chapter IV of theAct, it is clear from the very inception that Police Officer has nojurisdiction to investigate the offence. It is not case of absence ofterritorial jurisdiction.No doubt, if it is case of another Police Officerbeing empowered to investigate the offence in terms of powers underCrPC, the law is, as laid down, that there is the obligation to register anFIR and then make it over to the Police Station which has jurisdiction. Infact, conflict, when in the context of Sections 178 to 185 of the CrPC,which constitute exceptions to the general principle laid down in Section177 of the CrPC, the High Court is to decide the dispute, as is provided

Ain Section 186 of the CrPC. If an information is relatable only to cognizableoffences under Chapter IV of the Act, we would think that the PoliceOfficer would be out of bounds and he has no role to play in theinvestigation as neither he nor any other Police Officer has any role toplay in the investigation. His duty lies in referring the complainant to theconcerned Drugs Inspector. If he is in receipt of information about anBoffence under Chapter IV of the Act, he must promptly notify theconcerned Drugs Inspector.

POWER TO ARREST UNDER THE ACT

72. One of the reliefs which is sought by the first respondent-writCpetitioner was direction not to arrest him. The Act does not expresslyconfer upon the Inspector the power to arrest. This brings up the issue,therefore, of the person empowered to arrest.

73. Perusal of Section 36AC of the Act makes it clear that arrestis contemplated under the Act. Conditions have been imposed for grantDof bail as enacted in Section 36AC which we have already referred. Ifthe Inspector under the Act has no authority to carry out the arrest,there cannot be situation where arrest is in the contemplation of thelaw giver and yet there is no person who can effectuate that arrest.

74. The further question which would therefore arise is, the impactEof finding that arrest can be effected by police officer in respect of acognizable offence under Chapter IV of the Act on the need to registeran FIR under Section 154. We have already noticed that under Section157 of the Act making report to the Magistrate who can take cognizanceof police report renders the provision as such inapplicable under ChapterIV of the Act.F

75. The question would arise if investigation is not permissible fora police officer under Section 157 and that he cannot give report underthe said provision, can he be empowered to carry out the arrest? Is thescheme of arrest under Section 41 of the Act interlinked with the powerof arrest under Section 157? We heard the learned Counsel for theGpetitioner and the learned Amicus Curiae on this point and have consideredtheir Written Submissions as well.

PROVISIONS AS TO ARREST IN THE CONSTITUTION OFINDIA – ARTICLE 22(1) AND ARTICLE 22(2).

76. Article 22(1) and Article 22(2) of the Constitution of India,Hreads as follows:

“22. Protection against arrest and detention in certain cases

(1) No person who is arrested shall be detained in custody withoutbeing informed, as soon as may be, of the grounds for such arrestnor shall he be denied the right to consult, and to be defended by,a legal practitioner of his choice

(2) Every person who is arrested and detained in custody shall beproduced before the nearest magistrate within period of twentyfour hours of such arrest excluding the time necessary for thejourney from the place of arrest to the court of the magistrate andno such person shall be detained in custody beyond the said periodwithout the authority of magistrate.”

77. At this juncture, it is necessary to notice the judgment of thisCourt in D.K. Basuv. State of West Bengal11. In the said case, thisCourt issued various directions in regard to safeguards to be observed inthe matter of effecting arrest. They are found in paragraph-35 and readas follows:

“35. We, therefore, consider it appropriate to issue thefollowing requirements to be followed in all cases of arrest ordetention till legal provisions are made in that behalf as preventivemeasures:

(1) The police personnel carrying out the arrest andhandling the interrogation of the arrestee should bear accurate,visible and clear identification and name tags with theirdesignations. The particulars of all such police personnel whohandle interrogation of the arrestee must be recorded in aregister.

(2) That the police officer carrying out the arrest of thearrestee shall prepare memo of arrest at the time of arrestand such memo shall be attested by at least one witness, whomay either be member of the family of the arrestee or arespectable person of the locality from where the arrest ismade. It shall also be countersigned by the arrestee and shallcontain the time and date of arrest.

(3) person who has been arrested or detained and isbeing held in custody in police station or interrogation centre

11 (1997) 1 SCC 416

or other lock-up, shall be entitled to have one friend or relativeor other person known to him or having interest in his welfarebeing informed, as soon as practicable, that he has been arrestedand is being detained at the particular place, unless the attestingwitness of the memo of arrest is himself such friend or arelative of the arrestee.

(4) The time, place of arrest and venue of custody of anarrestee must be notified by the police where the next friendor relative of the arrestee lives outside the district or townthrough the Legal Aid Organisation in the District and the policestation of the area concerned telegraphically within period of8 to 12 hours after the arrest.

(5) The person arrested must be made aware of thisright to have someone informed of his arrest or detention assoon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place ofdetention regarding the arrest of the person which shall alsodisclose the name of the next friend of the person who hasbeen informed of the arrest and the names and particulars ofthe police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be alsoexamined at the time of his arrest and major and minor injuries,if any present on his/her body, must be recorded at that time.The “Inspection Memo” must be signed both by the arresteeand the police officer effecting the arrest and its copy providedto the arrestee.

(8) The arrestee should be subjected to medicalexamination by trained doctor every 48 hours during hisdetention in custody by doctor on the panel of approveddoctors appointed by Director, Health Services of the State orUnion Territory concerned. Director, Health Services shouldprepare such panel for all tehsils and districts as well.

(9) Copies of all the documents including the memo ofarrest, referred to above, should be sent to the Illaqa Magistratefor his record.

(10) The arrestee may be permitted to meet his lawyerduring interrogation, though not throughout the interrogation.

(11) police control room should be provided at all districtand State headquarters, where information regarding the arrestand the place of custody of the arrestee shall be communicatedby the officer causing the arrest, within 12 hours of effectingthe arrest and at the police control room it should be displayedon conspicuous notice board.”

78. We may observe what this Court laid down in paragraphs-36and 37:

“36. Failure to comply with the requirements hereinabovementioned shall apart from rendering the official concerned liablefor departmental action, also render him liable to be punished forcontempt of court and the proceedings for contempt of court maybe instituted in any High Court of the country, having territorialjurisdiction over the matter.

37. The requirements, referred to above flow from Articles21 and 22(1) of the Constitution and need to be strictly followed.These would apply with equal force to the other governmentalagencies also to which reference has been made earlier.”

79. When this Court laid down in paragraph-37 that therequirements laid down by this Court would apply with equal force toother governmental agencies, to which reference was made earlier, theCourt had in mind the following statements in paragraph-30 of theJudgment:

“30. Apart from the police, there are several othergovernmental authorities also like Directorate of RevenueIntelligence, Directorate of Enforcement, Coastal Guard, CentralReserve Police Force (CRPF), Border Security Force (BSF), theCentral Industrial Security Force (CISF), the State Armed Police,Intelligence Agencies like the Intelligence Bureau, RAW, CentralBureau of Investigation (CBI), CID, Traffic Police, Mounted Policeand ITBP, which have the power to detain person and tointerrogate him in connection with the investigation of economicoffences, offences under the Essential Commodities Act, Exciseand Customs Act, Foreign Exchange Regulation Act etc. ……”

No doubt, these are all cases where express power of arrest wasconferred on those Authorities under the concerned law.

A80. We may notice that Bench of this Court in Arnesh Kumar v.State of Bihar and another[12] again considered the aspect relating to thebalance that is to be struck between individual liberty and societal order,while exercising power of arrest. Though the matter arose under Section498A of the Indian Penal Code, 1860, which deals with matrimonialcruelty read with the Dowry Prohibition Act, 1961, the Court issuedBdirections as contained in from paragraph-11.1 to 11.8. It also held asfollows:

“12. We hasten to add that the directions aforesaid shall not onlyapply to the cases under Section 498-A IPC or Section 4 of theDowry Prohibition Act, the case in hand, but also such cases whereCoffence is punishable with imprisonment for term which may beless than seven years or which may extend to seven years, whetherwith or without fine.”

81. Still later, we may notice that Bench of this Court frownedupon arrest which was unwarranted in the decision reported in Rini JoharDv. State of M.P.13 and the Court also granted compensation, having regardto the manner in which the petitioner was treated in the said case. Afterreferring to Arnesh Kumar(supra), this Court in Rini Johar(supra),inter alia, held as follows:

“22. We have referred to the enquiry report and the legalEposition prevalent in the field. On studied scrutiny of the report,it is quite vivid that the arrest of the petitioners was not made byfollowing the procedure of arrest. Section 41-A CrPC as has beeninterpreted by this Court has not been followed. The report clearlyshows that there have been number of violations in the arrest, andFseizure. Circumstances in no case justify the manner in which thepetitioners were treated.”

No doubt, the Court, in Arnesh Gupta (supra), was dealing withthe case which dealt with situation where the offences were punishablewith imprisonment upto seven years, and as mandated in Section 41 ofGthe CrPC., reasons had to exist for effecting an arrest as provided therein.

THE POWER OF ARREST UNDER THE CRPC

82. Chapter V of the CrPC deals with the arrest of persons. Section41 of the CrPC, vide the Code of Criminal Procedure (Amendment)

12 (2014) 8 SCC 273H13 (2016) 11 SCC 703

Act, 2008 (Act 5 of 2009, Section 5) (w.e.f. 01-11-2010), deals with thepower of the Police Officer to arrest without warrant. It reads as followsafter substitution:

“41. When police may arrest without warrant.-(1) Anypolice officer may without an order from Magistrate and withouta warrant, arrest any person-

14(a) who commits, in the presence of police officer, cognizableoffence;

(b)against whom reasonable complaint has been made, orcredible information has been received, or reasonablesuspicion exists that he has committed cognizable offencepunishable with imprisonment for term which may be lessthan seven years or which may extend to seven yearswhether with or without fine, if the following conditions aresatisfied, namely:-

(i) the police officer has reason to believe on the basis ofsuch complaint, information, or suspicion that such personhas committed the said offence;

(ii) the police office is satisfied that such arrest is necessary-

(a) to prevent such person from committing any furtheroffence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidenceof the offence to disappear or tampering with suchevidence in any manner; or

(d) to prevent such person from making anyinducement, threat or promise to any personacquainted with the facts of the case so as todissuade him from disclosing such facts to the Courtor to the police officer; or

(e) as unless such person is arrested, his presence inthe Court whenever required cannot be ensured,and the police officer shall record while making sucharrest, his reasons in writing:

1006SUPREME COURT REPORTS

A15 [Provided that police officer shall, in all cases wherethe arrest of person is not required under the provisionsof this sub-section, record the reasons in writing for notmaking the arrest.]

(ba)against whom credible information has been received thatBhe has committed cognizable offence punishable withimprisonment for term which may extend to more thanseven years whether with or without fine or with deathsentence and the police officer has reason to believe on thebasis of that information that such person has committedthe said offence;]C

(c)who has been proclaimed as an offender either under thisCode or by order of the State Government; or

(d)in whose possession anything is found which may reasonablybe suspected to be stolen property and who may reasonablyDbe suspected of having committed an offence withreference to such thing; or

(e)who obstructs police officer while in the execution of hisduty, or who has escaped, or attempts to escape, from lawfulcustody; or

E(f)who is reasonably suspected of being deserter from anyof the Armed Forces of the Union; or

(g)who has been concerned in, or against whom reasonablecomplaint has been made, or credible information has beenreceived, or reasonable suspicion exists, of his havingFbeen concerned in, any act committed at any place out ofIndia which, if committed in India, would have beenpunishable as an offence, and for which he is, under anylaw relating to extradition, or otherwise, liable to beapprehended or detained in custody in India; or

G(h)who, being released convict, commits breach of anyrule made under sub- section (5) of section 356; or

(i)for whose arrest any requisition, whether written or oral,has been received from another police officer, provided that

H15 Ins. By Act 41 of 2010, sec.2 (w.e.f. 2-11-2010).

the requisition specifies the person to be arrested and theoffence or other cause for which the arrest is to be madeand it appears therefrom that the person might lawfully bearrested without warrant by the officer who issued therequisition.

16[(2) Subject to the provisions of Section 42, no personconcerned in non-cognizable offence or against whom acomplaint has been made or credible information has beenreceived or reasonable suspicion exists of his having soconcerned, shall be arrested except under warrant or orderof Magistrate.].”

83. Section 41A of the CrPC, inserted w.e.f. 01.11.2010, providesfor issuance of Notice by the Police Officer in all the cases covered bySub-Section (1) of Section 41 of the CrPC, where the arrest of personis not required, to appear before him. As long as person complies withthe Notice, Section 41A(iii) prohibits arrest unless the Police Officer, forreasons to be recorded, is of the view that he is to be arrested. Section41B of the CrPC, again inserted w.e.f. 01.11.2010, casts duty on aPolice Officer, making an arrest, to bear an accurate, visible and clearidentification of his name. He is to prepare Memorandum of Arrest,which is, inter alia, to be countersigned by the person arrested. Section41D of the CrPC confers right on the arrested person to meet anAdvocate of his choice during the interrogation, though not throughoutinterrogation. Under Section 42 of the CrPC, if person commits non-cognizable offence in the presence of Police Officer or he is accusedof committing non-cognizable offence, and the Police Officer, ondemanding his name and residence, is met with refusal or the giving ofa name or residence, which the Officer believes to be false, arrest canbe made but for the purpose of ascertaining the name and residence. Infact, he is to be released immediately on executing bond when the truename and residence is ascertained. If there is failure to ascertain theaddress within twenty-four hours, inter alia, of arrest, no doubt, it isforthwith forwarded to the nearest Magistrate having jurisdiction. TheAct contemplates arrest by private person. The power and the procedure,is detailed in Section 43 of the CrPC, it reads as follows:

16 Subs. By Act 5 of 2009, sec. 5(ii), for sub-Section (2) (w.e.f. 1-11-2010).

A“43. Arrest by private person and procedure on such arrest.

(1) Any private person may arrest or cause to be arrested anyperson who in his presence commits non- bailable and cognizableoffence, or any proclaimed offender, and, without unnecessarydelay, shall make over or cause to be made over any person soBarrested to police officer, or, in the absence of police officer,take such person or cause him to be taken in custody to the nearestpolice station.

(2) If there is reason to believe that such person comes under theprovisions of section 41, police officer shall re- arrest him.

(3) If there is reason to believe that he has committed non-cognizable offence, and he refuses on the demand of policeofficer to give his name and residence, or gives name or residencewhich such officer has reason to believe to be false, he shall bedealt with under the provisions of section 42; but if there is noDsufficient reason to believe that he has committed any offence,he shall be at once released.”

84. Section 46 of the CrPC provides for the manner of arrest.Section 47 enables the Police Officer to search the place entered by aperson sought to be arrested. Section 48 of the CrPC reads as follows:

E“48. Pursuit of offenders into other jurisdictions. police officermay, for the purpose of arresting without warrant any person whomhe is authorised to arrest, pursue such person into any place inIndia.”

85. The person arrested is not to be subjected to more restraintFthan is necessary to prevent his escape, declares Section 49 of the CrPC.Every Police Officer or other person, arresting person without awarrant, is bound forthwith to communicate to him all particulars of theoffence for which he is arrested or other grounds for such arrest. This isprovided for in Section 50 of the CrPC. Police Officer, when he arrestsa person without warrant and he is not accused of committing non-Gbailable offence, is duty-bound to inform him of his entitlement to bereleased on Bail. The Police Officer is also under an obligation to inform,under Section 50A of the CrPC, nominated person about the factum ofarrest. This came into force on 23.06.2006. Section 51 deals with searchof the arrested person.H

86. Section 54 of the CrPC declares that when any person isarrested, he shall be examined by Medical Officer. Section 54A of theCrPC, inserted w.e.f. 23.06.2006, specifically provides for identificationof the arrested person. Section 55A of the CrPC, inserted w.e.f.31.12.2009, makes it the duty of the person, having the custody of theperson, to take reasonable care of the health and safety. Section 56 ofthe CrPC makes it the duty of the Police Officer, arresting withoutwarrant, to produce the person arrested before Magistrate havingjurisdiction without unnecessary delay or before the Officer In-chargeof Police Station. This is, no doubt, subject to the provisions as to Bail.Section 57 of the CrPC, reads as follows:

“57. Person arrested not to be detained more than twenty- fourhours. No police officer shall detain in custody person arrestedwithout warrant for longer period than under all the circumstancesof the case is reasonable, and such period shall not, in the absenceof special order of Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey fromthe place of arrest to the Magistrate’ s Court.”

87. The Officer In-charge of Police Station is to report about allpersons arrested without warrant to the District Magistrate or the Sub-Divisional Magistrate as directed by the District Magistrate. Section 59of the CrPC provides that no person, who has been arrested by PoliceOfficer, shall be discharged, except on his own bond or on Bail or underthe Special Order of the Magistrate. Section 60A of the CrPC providesthat no arrest is to be made, except in accordance with the provisions ofthe CrPC or any other law being in force, providing for arrest. ChapterXI of the CrPC provides for preventive action of the Police. Section 151of the CrPC, inter alia, empowers Police Officer, knowing of designby person to commit cognizable offence, to arrest him without ordersfrom Magistrate and without warrant. Section 157 of the CrPCprovides, inter alia, that the Police Officer, proceeding to investigate acase, may take measures for the arrest of the offender. Section 167 ofthe CrPC deals with case where investigation is not completed withintwenty-four hours, as fixed in Section 57 of the CrPC. It provides that insuch situation, if there are grounds for believing that the accusation orinformation is well founded, the person arrested, is to be forwarded tothe Magistrate, inter alia. Section 167 empowers Magistrate to orderremand of the accused person, as provided therein.

AA FEW WORDS ABOUT THE PROVISIONS AS TO BAIL

88. Chapter XXXIII of the CrPC deals with Bail. Section 436 ofthe CrPC deals with Bail in the case of an arrest of person accused ofa bailable offence. There is Statutory Right to Bail in the mannerprovided therein. Section 437 of the CrPC provides for Bail in the caseBof non-bailable offence. It, essentially, deals with situation where aperson is brought before court other than the High Court or Court ofSessions. There are certain restrictions and conditions to be fulfilled inthe matter of grant of Bail on the Court, as is stated therein.

89. Section 439 of the CrPC, confers special powers on the HighCCourt or the Court of Sessions in regard to Bail. It reads as follows:

“439. Special powers of High Court or Court of Session regardingbail.

(1) High Court or Court of Session may direct-

D(a) that any person accused of an offence and in custody bereleased on bail, and if the offence is of the nature specified insubsection (3) of section 437, may impose any condition which itconsiders necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by Magistrate when releasing anEperson on bail be set aside or modified: Provided that the HighCourt or the Court of Session shall, before granting bail to personwho is accused of an offence which is triable exclusively by theCourt of Session or which, though not so triable, is punishablewith imprisonment for life, give notice of the application for bail toFthe Public Prosecutor unless it is, for reasons to be recorded inwriting, of opinion that it is not practicable to give such notice.

(2) High Court or Court of Session may direct that any personwho has been released on bail under this Chapter be arrested andcommit him to custody.”

G90. Section 36AC of the Act, around which much arguments wereaddressed reads as follows:

“36AC. Offences to be cognizable and non-bailable in certaincases. — (1) Notwithstanding anything contained in the Code ofCriminal Procedure, 1973 (2 of 1974),—H

(a) every offence, relating to adulterated or spurious drug andpunishable under clauses (a) and (c) of sub-section (1) of section13, clause (a) of sub-section (2) of section 13, sub-section (3) ofsection 22, clauses (a) and (c) of section 27, section 28, section28A, section 28B and sub-sections (1) and (2) of section 30 andother offences relating to adulterated drugs or spurious drugs,shall be cognizable.

(b) no person accused, of an offence punishable under clauses(a) and (c) of sub-section (1) of section 13, clause (a) of sub-section (2) of section 13, sub-section (3) of section 22, clauses (a)and (c) of section 27, section 28, section 28A, section 28B andsub-sections (1) and (2) of section 30 and other offences relatingto adulterated drugs or spurious drugs, shall be released on bail oron his own bond unless—

(i) the Public Prosecutor has been given an opportunity to opposethe application for such release; and

(ii) where the Public Prosecutor opposes the application, the Courtis satisfied that there are reasonable grounds for believing that heis not guilty of such offence and that he is not likely to commit anyoffence while on bail:

Provided that person, who, is under the age of sixteen years, oris woman or is sick or infirm, may be released on bail, if theSpecial Court so directs.

(2) The limitation on granting of bail specified in clause (b) ofsub-section (1) is in addition to the limitations under the Code ofCriminal Procedure, 1973 (2 of 1974) or any other law for thetime being in force on granting of bail.

(3) Nothing contained in this section shall be deemed to affect thespecial powers of the High Court regarding bail under section 439of the Code of Criminal Procedure, 1973 (2 of 1974) and the HighCourt may exercise such powers including the power under clause(b) of sub-section (1) of that section as if the reference to“Magistrate” in that section includes also reference to “SpecialCourt” designated under section 36AB.”

91. The learned Counsel for the Union of India would submit thatthe Inspector, under Section 32 of the Act, cannot be treated as Police

AOfficer who has the power to arrest under the CrPC. Reliance is placedon Badaku Joti Savantv. State of Mysore17. Similarly, support is drawnfrom Raj Kumar Karwalv. Union of India and others18. Reliance is also19placed on Ramesh Chandra Mehtav. State of W.B., Illias v. Collectorof Customs, Madras20, State of U.P.v. Durga Prasad21 and BalkishanA. Devidayalv. State of Maharashtra22. These decisions, apparently,Bare relied on to show that Officers of Department, including theDirectorate of Revenue Intelligence (DRI), invested with powers ofinvestigation under the Narcotic Drugs and Psychotropic SubstancesAct, 1985, Customs Act, 1962 and under the Railway Property (UnlawfulPossession) Act, 1966, are not Police Officers. It is, therefore, the caseCof the petitioner that important indispensable attribute of Police Officeris not only authority to investigate but to also have power to file Reportunder Section 173 of the CrPC.

92. It is further contended that unlike the Prevention of Money-Laundering Act, 2002, which specially provides that “no Police OfficerDcan investigate into an offence under the Act”, the Act in question issilent. The special provision must prevail in case of conflict with thegeneral provision. In view of absence of specific powers on the Inspectorunder the Act, provisions of CrPC will prevail. literal interpretation,according to the plain meaning of the language, is commended for ouracceptance. The provisions of Section 36AC of the Act are emphasizedEbefore us treating offences thereunder as being cognizable and non-bailable. It is submitted that there is power to arrest with the Police. Thejudgment in Deepak Mahajan (supra) is sought to be distinguished. Theimplication of Section 36AC of the Act is that the offences set-out thereincan be investigated by the Police. Therefore, Section 36AC will apply

Fnotwithstanding Section 32 of the Act. Otherwise, the intention of theLegislature, in making the offence cognizable and, at the same time, todenude the Police of the power to prosecute, would be contradiction.It is pointed out that before Section 36AC of the Act, the offences relatingto adulterated and spurious drugs under the Act, were non-cognizable

17 (1966) 3 SCR 698

18 (1990) 2 SCC 40919 (1969) 2 SCR 461

20 (1969) 2 SCR 613

21 (1975) 3 SCC 210H22 (1980) 4 SCC 600

offences. It is also contended that Section 36AC of the Act now makesan exception by empowering the Police to investigate and consequentlyprosecute for the offences specifically set-out in Section 36AC. It ispointed out that the offences set-out in Section 36AC, other than theoffences relating to adulterated drugs and spurious drugs, could not havebeen considered cognizable in terms of Schedule I Part 2 of the CrPC.Except Section 27A and 27C and Section 30(1) of the Act, all otherprovisions mentioned in Section 36AC of the Act, were non-cognizableoffences as per Schedule I Part 2 of the CrPC. But having regard to theamended Section 36AC of the Act, it is the special provisions in Section36AC, which will prevail.

THE SUBMISSIONS OF THE LEARNED AMICUS INREGARD TO ARREST.

93. When the Court pointed out that there is no express power onthe Drugs Inspector under the Act to arrest and when an arrest is effected,whether it becomes necessary to register an FIR under Section 154 ofthe CrPC. The learned Amicus Curiae submitted as follows:

He agreed that for person to be released on Bail, he shouldhave been remanded to custody. He should further have beenarrested under Section 157 of the CrPC in order that he beremanded under Section 167 of the CrPC. If he is arrested underSection 41(1) of the CrPC, immediately thereafter, case shouldbe registered and he should be sent to the Court seeking remand.Any case registered under Section 154 or 155 of the CrPC, is toculminate in the Report under Section 173(2) of the CrPC. Thereis no other way for giving disposal to the case. Filing of such aFinal Report under Section 190 of the CrPC is to take cognizance,and since Section 32 of the Act would bar such cognizance, nopurpose would be served in registering the case. The Legislativeintent, under Section 32 of the Act, cannot be diluted. The PoliceOfficer, therefore, cannot arrest under Section 157 of the CrPC.While introducing Section 36AC, the Legislature was presumedto know the bar in Section 32. There is an inconsistency betweenSection 32 and Section 36AC, though they were amended/introduced by the same amendment. It becomes the duty of theCourt to avoid head-on clash between the two Sections. It iscontended that the Court must effect reconciliation. Reliance is

[2020] 10 S.C.R.

Aplaced on judgment of this Court in D. Sanjeevayyav. Election23Tribunal, Andhra Pradesh and others.

94. Learned Amicus Curiae further submits that Section 21 of theAct speaks of the “Appointment of the Inspectors”. The qualificationsof Inspectors are provided in Rule 49 of the Drugs and Cosmetics Rules.BThey are Experts in the subjects so far as the powers are provided inSections 22 and 23 of the Act. The provisions in Section 23 are mandatory.The Act provides for getting Report on the sample and the accused isalso enabled to seek Second Report from the Central Laboratory. ThePolice Officer may not have the qualifications. He may not know howto draw the sample. The procedure can be meaningfully followed onlyCby the Inspectors. Legislature did not intend to give similar powers tothe Police. It is further contended that if it is held that the Police can filea Final Report, upon which cognizance can be taken, it will make Section32 of the Act non-existent. Similarly, in an attempt to interpret Section36AC, if the Police is conferred with the power to arrest, it will lead toDauthorizing the Police to also register the case under Section 154 of theCrPC and to file Final Report under Section 173(2) of the CrPC. It isdifficult to harmonise Section 32 and Section 36AC of the Act, it ispointed out. The learned Amicus Curiae draws our attention to thefollowing observations of this Court in Sultana Begum v. Prem ChandJain[24]:E“11. The statute has to be read as whole to find out the realintention of the legislature.12. In Canada Sugar Refining Co. v. R. [1898 AC 735 : 67LJPC 126] , Lord Davy observed:F“Every clause of statute should be construed withreference to the context and other clauses of the Act, so as, asfar as possible, to make consistent enactment of the wholestatute or series of statutes relating to the subject-matter.”

13. This Court has adopted the same rule in M. Pentiah v. MuddalaGVeeramallappa [AIR 1961 SC 1107 : (1961) 2 SCR 295] ; GammonIndia Ltd. v. Union of India [(1974) 1 SCC 596 : 1974 SCC (L&S)252 : AIR 1974 SC 960] ; Mysore SRTC v. Mirja Khasim AliBeg [(1977) 2 SCC 457 : 1974 SCC (L&S) 282 : AIR 1977 SC

23 AIR 1967 SC 1211H24 (1997) 1 SCC 373

747] ; V. Tulasamma v. Sesha Reddy [(1977) 3 SCC 99 : AIR1977 SC 1944] ; Punjab Beverages (P) Ltd. v. SureshChand [(1978) 2 SCC 144 : 1978 SCC (L&S) 165 : AIR 1978 SC995] ; CIT v. National Taj Traders [(1980) 1 SCC 370 : 1980 SCC(Tax) 124 : AIR 1980 SC 485] ; Calcutta Gas Co. (Proprietary)Ltd. v. State of W.B. [AIR 1962 SC 1044 : 1962 Supp (3) SCR 1]and J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. State of U.P. [AIR1961 SC 1170 : (1961) 1 LLJ 540]

15. On conspectus of the case-law indicated above, thefollowing principles are clearly discernible:

(1) It is the duty of the courts to avoid head-on clashbetween two sections of the Act and to construe the provisionswhich appear to be in conflict with each other in such manneras to harmonise them.

(2) The provisions of one section of statute cannot beused to defeat the other provisions unless the court, in spite of itsefforts, finds it impossible to effect reconciliation between them.

(3) It has to be borne in mind by all the courts all the timethat when there are two conflicting provisions in an Act, whichcannot be reconciled with each other, they should be so interpretedthat, if possible, effect should be given to both. This is the essenceof the rule of “harmonious construction”.

(4) The courts have also to keep in mind that aninterpretation which reduces one of the provisions as “deadletter” or “useless lumber” is not harmonious construction.

(5) To harmonise is not to destroy any statutory provisionor to render it otiose.”

95. Police cannot arrest as there can be no investigation by thePolice. Section 36AC of the Act stipulates stringent conditions forgranting Bail. It can be made applicable when the accused is remandedto the custody by the Magistrate while committing the case to the SessionsCourt.

96. As regards Section 41 of the CrPC, the learned Amicus Curiaewould point out that empowering the Police to arrest in respect of

Acognizable offence, under the said provisions, being general provision,may not be countenanced as the general provisions are overridden bythe provisions of the Act. Again, arrest under Section 41 of the CrPCmust be followed by the registration of the case under Section 154 of theCrPC, which is not possible in view of Section 32 of the Act. The learnedAmicus Curiae also voices the apprehension that if power to arrest isBconferred on the Police Officer, under Section 41, then, in every specialenactment, such as the Food Adulteration Act, Income-Tax Act, FoodSafety and Standards Act, Customs Act, etc., the Police will arrest underSection 41 of the CrPC, register case and file Final Report. Thespecial provisions of those Acts, restricting cognizance only on the basisCof complaint, would be rendered nugatory.

97. The learned Amicus Curiae would also submit that thoughthere is no specific provision empowering the Drugs Inspector to arrest,Section 22(1)(d) of the Act may be interpreted and it be held that theInspector has power to arrest. In this regard, reliance is placed on DeepakDMahajan (supra).

ANALYSIS

98. The arrest of person involves an encroachment on hispersonal liberty. Article 21 of the Constitution of India declares that noperson shall be deprived of his personal liberty and life except inEaccordance with procedure established by law. There can be no doubtthat the power to arrest any person therefore must be premised on lawwhich authorizes the same.

99. Under the Act, as noted by us, and bearing in mind the lawlaid down in connection with similar Statutes, we have no hesitation inFrejecting the argument of the petitioner that after the amendment ofSection 36AC of the Act, making the offences cognizable and non-bailable, it is open to the Police Officer to prosecute the person for theoffences set-out in Section 36AC of the Act. Having regard to the expressprovisions of Section 32 of the Act, insofar as the prosecution is to beGlaunched qua offences falling within the four walls of Chapter IV of theAct, and which are also the subject matter of Section 36AC of the Act,there cannot be any doubt that prosecution of the offender, for suchoffences, can be done only in the manner provided in Section 32 of theAct. The prosecution can be launched only by the persons mentioned inSection 32 of the Act. Police Officer, as such, does not figure as oneHof the persons who may prefer report under Section 173(2) of the

CrPC, on which, cognizance could be taken by the Special Court.Undoubtedly, as we have already clarified in respect of an offence underChapter IV, if the acts or omission also constitutes an offence under anyother law, under Section 32(3) of the Act, it may be open to the PoliceOfficer, if he is otherwise empowered under the said law, to prosecutethe person for the same offence, to act as such.

100. Consequently, the registration of an FIR, which under thescheme of the CrPC, sets the ball rolling, empowering the Police Officerto investigate under Section 157 of the CrPC, and gather material andfinally file Report, would all appear to us to be inapplicable to an offenceunder Chapter IV of the Act.

101. The conundrum, however, is posed by the aspect relating toarrest. Undoubtedly, there is no express power on the Inspector to arrestunder the Act. The argument of the learned Additional Solicitor General,Ms. Pinky Anand that the Drugs Inspector could not be Police Officeras he is not person who can file Report under Section 173 of theCrPC and, therefore, he cannot arrest, does not appeal to us. The decisionsrelied upon by the learned Counsel, referred to by us in paragraph-91hereinbefore, only declare that the Customs Officer under the CustomsAct and the other officers in the enactments, which we have referredto, are not Police Officers in the context of Section 25 of the IndianEvidence Act, 1872 (hereinafter referred to as ‘the Evidence Act’, forshort). Section 25 of the Evidence Act renders inadmissible confessionmade to Police Officer. The question here is not whether the DrugsInspector is Police Officer and the question here is whether he isempowered to carry out arrest of person under the Act. Still further,the question to be answered is, whether Police officer under the CrPCis deprived of his power, under the CrPC, to arrest. These are thequestions to be answered by us.

102. The Court must start with the presumption that Parliament,which is author of the CrPC and also the Act in question, was aware ofthe provisions of the CrPC, as it existed at the time when the Act wasenacted in 1940. This is following the principle that the Legislature mustbe assumed to know the law which exists on the Statute Book when itmakes new law. It must, therefore, be assumed to know that the powerof arrest is expressly conferred on the Police Officer in the mannerwhich we have referred to. The Legislature has not, in the Act, yetconferred express power on the Drugs inspector, to arrest. However,

ASection 22(1)(d) of the Act, which deals with the powers of the Inspector,inter alia, enables the Inspector to exercise such other powers as maybe necessary for carrying out the purpose of Chapter IV or any Rulesmade thereunder.The sanction, which is contemplated under ChapterIV, is the criminal sanction by way of prosecuting person for contraveningthe provisions of Chapter IV of the Act. In other words, the LegislatureBhas given teeth to the law by providing for prosecuting offenders. TheInspector is at the center stage. In every other aspect, as can be seenfrom the Act, the implementation of its provisions is vitally dependentupon the powers and functions assigned to the Inspector. The veryqualifications, which are provided in the Rules, as indispensable for beingCappointed as an Inspector, represents carefully chosen value judgmentby the Legislature to assign the implementation of the Act through thecompetent hands of qualified persons. The Act is enacted to achieve thehighest public interest in as much as what is at stake is the health of themembers of the public, which again is recognized as one of the aspectscovered by the Fundamental Right protected under Article 21 of theDConstitution of India. Keeping the Police Officer out from the categoriesof persons, who could prosecute offenders for offences under ChapterIV of the Act, is also carefully thought out ideal.

THE DECISION OF THIS COURT IN DIRECTORATE OFENFORCEMENT V. DEEPAK MAHAJAN AND ANOTHER25E

103. In Deepak Mahajan (supra), the question arose in the contextof provisions of Section 35 of the Foreign Exchange Regulation Act,1973 (FERA) and Section 104 of the Customs Act, 1962, which expresslyconferred power of arrest on the Officers under the Acts. The questionwhich squarely arose was whether upon arrest being effected underFSection 35 of the FERA and Section 104 of the Customs Act, remandcould be ordered under Section 167(2) of the CrPC. In the course ofdiscussion, the Court proceeded to hold that the CrPC gives power ofarrest not only to the Police Officer, but to Magistrate and also undercertain circumstances or given situations to private persons. It went onGto hold that in every arrest there is custody but not vice-versa. It furtherheld as follows:

“54. The above deliberation leads to derivation that to invokeSection 167(1), it is not an indispensable pre-requisite condition

that in all circumstances, the arrest should have been effectedonly by police officer and none else and that there mustnecessarily be records of entries of case diary. Therefore, itnecessarily follows that mere production of an arrestee beforea competent Magistrate by an authorised officer or an officerempowered to arrest (notwithstanding the fact that he is not apolice officer in its stricto sensu) on reasonable belief that thearrestee “has been guilty of an offence punishable” under theprovisions of the special Act is sufficient for the Magistrate totake that person into his custody on his being satisfied of the threepreliminary conditions, namely (1) the arresting officer is legallycompetent to make the arrest;(2) that the particulars of the offenceor the accusation for which the person is arrested or other groundsfor such arrest do exist and are well-founded; and (3) that theprovisions of the special Act in regard to the arrest of the personsand the production of the arrestee serve the purpose of Section167(1) of the Code.”

(Emphasis supplied)

104. Section 35(2) in FERA and Section 104(2) of the CustomsAct, provided that the person arrested was to be taken before Magistratewithout unnecessary delay. As regards the power to detain the personarrested under Section 167(2) of the CRPC, it was held as follows:

“102. From the foregoing discussion, it is clear that the word‘accused’ or ‘accused person’ is used only in generic sense inSection 167(1) and (2) denoting the ‘person’ whose liberty isactually restrained on his arrest by competent authority on well-founded information or formal accusation or indictment. Therefore,the word ‘accused’ limited to the scope of Section 167(1) and (2)— particularly in the light of Explanation to Section 273 of theCode includes ‘any person arrested’. The inevitable consequencethat follows is that “any person is arrested” occurring in the firstlimb of Section 167(1) of the Code takes within its ambit “everyperson arrested” under Section 35 of FERA or Section 104 of theCustoms Act also as the case may be and the ‘person arrested’can be detained by the Magistrate in exercise of his power underSection 167(2) of the Code. In other words, the ‘person arrested’under FERA or Customs Act is assimilated with the characteristicsof an ‘accused’ within the range of Section 167(1) and as such

ABC

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Aliable to be detained under Section 167(2) by Magistrate whenproduced before him.”

105. The Court went on to consider the impact of other laws inregard to the scope of the expression “Police Officer”. It held as follows:

“111. Neither the Police Act, 1861 (Act V of 1861) nor anyBother statute defines the expression ‘police officer’. Shortly stated,the main duties of the police are the prevention, detention andinvestigation of crimes. As the powers and duties of the Statehave increased and are increasing manifold, various Acts dealingwith Customs, Excise, Forest, Taxes etc. have come to be passedCand consequently the prevention, detention and investigation ofoffences as prescribed under those Acts have come to be entrustedto officers with different nomenclatures appropriate to the subjectwith reference to which they function. However, as stated supra,though the powers of customs officers and enforcement officersare not identical to those of police officers qua the investigationDunder Chapter XII of the Code yet the officers under the FERAand Customs Act are vested with certain powers similar to thepowers of police officers.”

106. Section 167(1) of the CrPC contemplates forwarding thediary which was interpreted to be not the general diary and the specialEdiary under Section 167(2) of the CrPC. In regard to the enactments inquestion, this Court held as follows:

“113. Though an authorised officer of Enforcement or Customsis not undertaking an investigation as contemplated under ChapterXII of the Code, yet those officers are enjoying some analogousFpowers such as arrest, seizures, interrogation etc. Besides, astatutory duty is enjoined on them to inform the arrestee of thegrounds for such arrest as contemplated under Article 22(1) ofthe Constitution and Section 50 of the Code. Therefore, they havenecessarily to make records of their statutory functions showingGthe name of the informant, as well as the name of the person whoviolated any other provision of the Code and who has been guiltyof an offence punishable under the Act, nature of informationreceived by them, time of the arrest, seizure of the contraband ifany and the statements recorded during the course of the detectionof the offence/offences.”

107. It also found the following powers available under five CentralAenactments:

108. The Court further held as follows:

“116. It should not be lost sight of the fact that policeofficer making an investigation of an offence representing theState files report under Section 173 of the Code and becomesthe complainant whereas the prosecuting agency under the specialActs files complaint as complainant i.e. under Section 61(ii) inthe case of FERA and under Section 137 of the Customs Act. Tosay differently, the police officer after consummation of theinvestigation files report under Section 173 of the Code uponwhich the Magistrate may take cognizance of any offencedisclosed in the report under Section 190(1)(b) of the Codewhereas the empowered or authorised officer of the special Acts

Ahas to file only complaint of facts constituting any offence underthe provisions of the Act on the receipt of which the Magistratemay take cognizance of the said offence under Section 190(1)(a)of the Code.After taking cognizance of the offence either upon apolice report or upon receiving complaint of facts, the Magistratehas to proceed with the case as per the procedure prescribedBunder the Code or under the special procedure, if any, prescribedunder the special Acts. Therefore, the word ‘investigation’ cannotbe limited only to police investigation but on the other hand, thesaid word is with wider connotation and flexible so as to includethe investigation carried on by any agency whether he be policeCofficer or empowered or authorised officer or person not beinga police officer under the direction of Magistrate to make aninvestigation vested with the power of investigation.”

(Emphasis supplied)

109. In fact, as laid down in Deepak Mahajan (supra), the powerDof arrest can be conferred on persons other than Police Officer. Weare, for the moment, excluding the position under the CrPC that even aprivate person can arrest as provided in Section 43 of the CrPC. TheForeign Exchange Regulation Act, 1973 (hence repealed); the CustomsAct, 1962; the Gold (Control) Act, 1968 (repealed); the Prevention ofEFood Adulteration Act, 1954 (hence repealed) and the Railway Property(Unlawful Possession) Act, 1966, in Sections 35, 104, 68, 10B and Section6, respectively, conferred power of arrest on the Officers under theseActs. Therefore, if we interpret Section 22(1)(d) of the Act, ascomprehending the power of arrest with the Drugs Inspector, then, hiscompetency to arrest, requirement in law, as laid down again in DeepakFMahajan (supra)(See paragraph-54), would stand satisfied. However,the further question is, what is the procedure to be followed by theInspector, and still finally, whether the Police Officer, under the CrPC,will stand deprived of the power to arrest. The argument of the learnedAmicus Curiae appears to be that since Police Officer, once he registersGan FIR under Section 154 of the CrPC, is duty-bound to carry the matterto its logical conclusion, viz., to investigate the matter as provided in theCrPC, and finally, file Report under Section 173(2) of the CrPC, topersuade the Court to take cognizance in an appropriate case, all ofwhich powers are not available to Police Officer in regard to offencesunder Chapter IV of the Act, the interpretation that avoids such futileHexercise, which also is unauthorized and illegal in law, should be adopted.110. We do agree with the learned Amicus Curie that the PoliceOfficer, for instance, cannot be approached by any person with acomplaint that cognizable offence under Chapter IV of the Act hasbeen committed and he is not bound to register the FIR in terms of thelaw which is being held down by this court in Lalita Kumari (supra).This is for the reason that if he were to register an FIR, then, he wouldhave to pass on to the stage of Section 157 of the CrPC and, furthermore,carry out investigation, as understood in law, for which neither is hedeemed qualified or empowered by the Law Giver nor is he entitled tofile Report under Section 173 of the CrPC.

POWER OF ARREST UNDER THE ACT

111. We are faced with situation which projects discordbetween two Statutes, viz., the CrPC and the Act, and the only silver-lining appearing on the horizon, is the ambit of the power under Section22(1)(d) of the Act. We may recapitulate the said provision, at this juncture.It reads as follows:

“22. Powers of Inspectors. – (1) Subject to the provisions ofsection 23 and of any rules made by the Central Government inthis behalf, an Inspector may, within the local limits of the area forwhich he is appointed,-

(d) Exercise such other powers as may be necessary for carryingout the purposes of this Chapter or any rules made there under.”

Apart from the same, there is no express power of arrest underthe Act on the Drugs Inspector.

SOME ENACTMENTS CONTAINING PROVISIONSSIMILAR TO SECTION 22(1)(d) OF THE ACT

112. We may notice that the Seeds Act, 1966 (Section 14(1)(e),the Insecticides Act, 1968 (Section 21(f)), the Kerala Fish Seed Act,2014 (Section 19(1)(e), Uttarakhand Ground Water (Regulation andControl of Development and Management) Act, 2016 [Section 13(1)(j)],contain provisions similar to what is contained in Section 22(1)(d) of theAct.

113. The Weekly Holidays Act, 1942 [Section 8(1)(c)], the Jammuand Kashmir Factories Act, 1999 [Section 9(1)(c)], contained provisions

Awhich confer power on the Authorities under the Act to exercise suchother power as may be necessary for carrying outer purposes of theenactment. As far as the Shops and Commercial Establishment Act,1958 [Section 19(1)(c)], after conferring the power to exercise suchpowers, as may be necessary for carrying out the Act, the Law Givercarves out limitation by way of proviso that no one shall be required,Bunder the said Section, to answer any question or give any evidencetending to incriminate him. Such proviso is also found in the PrivateMedical Establishment Act, 2007 [vide Section 21(1)(b)] as also in theJammu and Kashmir Factories Act, 1999.

SPECIFIC STATUTES CONFERRING POWERS OF ARREST;CCOGNIZABLE VERSUS NON-COGNIZABLE OFFENCE

114. It is, however, relevant to notice the provisions of theenactments containing the power to arrest and referred to in DeepakMahajan(supra). Section 104 of the Customs Act, 1962, at present,reads as follows:D

“104. Power to arrest. –(1) If an officer of customs empoweredin this behalf by general or special order of the 3[PrincipalCommissioner of Customs or Commissioner of Customs] hasreason to believe that any person in India or within the Indiancustoms waters has committed an offence punishable under sectionE132 or section 133 or section 135 or section 135A or section 136,he may arrest such person and shall, as soon as may be, informhim of the grounds for such arrest.

(2) Every person arrested under sub-section (1) shall, withoutunnecessary delay, be taken to magistrate.F

(3) Where an officer of customs has arrested any person undersub-section (1), he shall, for the purpose of releasing such personon bail or otherwise, have the same powers and be subject to thesame provisions as the officer-in-charge of police-station hasand is subject to under the 4 Code of Criminal Procedure, 1898 (5Gof 1898).

(4) Notwithstanding anything contained in the Code of CriminalProcedure, 1973 (2 of 1974), any offence relating to —

(a) prohibited goods; or

(b) evasion or attempted evasion of duty exceeding fifty lakhrupees, shall be cognizable.

(5) Save as otherwise provided in sub-section (4), all other offencesunder the Act shall be non-cognizable.

(6) Notwithstanding anything contained in the Code of CriminalProcedure, 1973, (2 of 1974) an offence punishable under section135 relating to —

(a) evasion or attempted evasion of duty exceeding fifty lakhrupees; or

(b) prohibited goods notified under section 11 which are alsonotified under sub-clause (C) of clause (i) of sub-section (1) ofsection 135; or

(c) import or export of any goods which have not been declaredin accordance with the provisions of this Act and the market priceof which exceeds one crore rupees; or

(d) fraudulently availing of or attempt to avail of drawback or anyexemption from duty provided under this Act, if the amount ofdrawback or exemption from duty exceeds fifty lakh rupees, shallbe non-bailable.

(7) Save as otherwise provided in sub-section (6), all other offencesunder this Act shall be bailable.[26]"

115. Section 35 of the The Foreign Exchange Regulation Act(FERA), 1973 read as follows (FERA came to be repealed by TheForeign Exchange Management Act (FEMA), 1999]:

“35. Power to arrest.—(1) If any officer of Enforcementauthorised in this behalf by the Central Government, by general

26 Prior to 13.07.2006, when the present provision came to be substituted by Act 29 of2006, the power to arrest was confined in relation to person about whom reason tobelieve was entertained that he had committed an offence under Section 135. As can beseen the power of arrest after 13.07.2006, has become more wide. Further, it is to benoticed, that Sections 104(4) was substituted by Act 23 of 2012 w.e.f. 28.05.2012.Sub-Section (4) before substitution read as follows:

“4.[Notwithstanding anything contained in Code of Criminal Procedure, 1898 (5 of1898), an offence under this Act, shall not be cognizable. The change brought about bysub-Section (4) as substituted, is that the offences mentioned in sub-Section (4), havebeen declared to be cognizable. However, under Section 104(5), all other offences underthe Act have been declared to be non-cognizable.

or special order, has reason to believe that any person in India orwithin the Indian customs waters has been guilty of an offencepunishable under this Act, he may arrest such person and shall, assoon as may be, inform him of the grounds for such arrest.

(2) Every person arrested under sub-section (1) shall, withoutBunnecessary delay, be taken to magistrate.

(3) Where any officer of Enforcement has arrested any personunder sub-section (1), he shall, for the purpose of releasing suchperson on bail or otherwise, have the same powers and be subjectto the same provisions as the officer-in-charge of police stationChas, and is subject to, under the 1[Code of Criminal Procedure,1973 (2 of 1974)].”

116. Section 68 of the Gold (Control) Act, 1968 (which also standsrepealed in 1990), read as follows:

“68. Power to arrest.D

(1) Any Gold Control Officer authorised by the Administrator inthis behalf may, if he has reasons to believe that any person hascontravened, or is contravening, or is about to contravene anyprovision of this Act, arrest such person and shall as soon aspossible inform him of the grounds for such arrest and shalltakeEsuch arrested person to the nearest magistrate within period oftwenty-four hours of such arrest excluding the time necessaryfor the journey from the place of arrest to the court of the magistrateand no such person shall be detained in custody beyond the saidperiod without the authority of magistrate.

(2) Any officer who has arrested any person under this sectionshall, for the purpose of releasing such person on bail or otherwise,have the same powers and be subject to the same provisions asthe officer-in-charge of police station has, and is subject to,under the Code of Criminal Procedure, 1898 (5 of 1898).”

(Emphasis supplied)

117. Section 10(8) of the The Prevention of Food AdulterationAct, 1954 (37 Of 1954), read as follows:

“10(8) Any food inspector may exercise the powers of policeofficer under section 42 of the Code of Criminal Procedure, 1973

(2 of 1974) for the purpose of ascertaining the true name andresidence of the person from whom sample is taken or an articleof food is seized.”

It may be noticed that Section 42 of the Cr.P.C. confers power ofarrest on Police Officer to arrest even in regard to non-cognizableoffence in the circumstances mentioned therein without warrant.

118. Finally, Section 6 of The Railway Property (UnlawfulPossession) Act, 1966, read as follows:

“6. Power to arrest without warrant.—Any superior officeror member of the Force may, without an order from Magistrateand without warrant, arrest any person who has been concernedin an offence punishable under this Act or against whom areasonable suspicion exists of his having been so concerned.”

Here, it is relevant to notice that the persons empowered aremembers of the force, which is defined as being members of the forceand the word ‘force’ is defined as the Railway protection force constitutedunder the Railway Protection Force Act, 1957. It is an armed force.

119. In the Foreign Exchange Management Act, 1999, there is noexpress power of arrest, as such conferred. Instead, it is relevant tonotice Section 37 of the said enactment:

“37. Power of search, seizure, etc.—

(1) The Director of Enforcement and other officers ofEnforcement, not below the rank of an Assistant Director, shalltake up for investigation the contravention referred to in section13. —(1) The Director of Enforcement and other officers ofEnforcement, not below the rank of an Assistant Director, shalltake up for investigation the contravention referred to in section13.”

(2) Without prejudice to the provisions of sub-section (1), theCentral Government may also, by notification, authorise any officeror class of officers in the Central Government, State Governmentor the Reserve Bank, not below the rank of an Under Secretaryto the Government of India to investigate any contraventionreferred to in section 13.

(3) The officers referred to in sub-section (1) shall exercise thelike powers which are conferred on income-tax authorities under

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Athe Income-tax Act, 1961 (43 of 1961) and shall exercise suchpowers, subject to such limitations laid down under that Act.”

120. The provision for arrest is contained in the Second Scheduleto the Income-Tax Act as mode of recovery of tax.

121. perusal of Section 104(4) of the Customs Act, as it stoodBwhen this Court decided Deepak Mahajan (supra), would show thatwhile an express power was conferred on the Customs Officer to arrestunder Section 104(1), it was considered to be non-cognizable offence.Further, the power of arrest was confined only to an offence committedunder Section 135 of the Act. It is apposite to notice that under theCCrPC, there is no power with the Police Officer to arrest in the case ofa non-cognizable offence except upon Warrant or Order of Magistrate.

122. In this regard, it may also be apposite to refer to the provisionsof the Central Excise Act, 1944. Section 13 confers the power to arrest.It reads as follows:

D“13. Power to arrest:- Any Central Excise Officer not below therank of Inspector of Central Excise may, with the prior approvalof the Principal Commissioner of Central Excise or Commissionerof Central Excise, arrest any person whom he has reason to believeto be liable to punishment under this Act or the rules madethereunder.”E

123. However, Section 9A, as it stood prior to it being amendedfrom the year 2004 onwards, declared that the offences under Section 9were to be deemed to be non-cognizable under the provisions of theCode of Criminal Procedure. In Sunil Guptav. Union of India27, theFDivision Bench of the Punjab and Haryana High Court had to answerthe question as to whether the power of arrest, under Section 13 of theAct, could be exercised without warrant, in view of the fact that underSection 9A, the offence was declared as non-cognizable. The Courttook the view that Section 13 embodied substantive power. It held,inter alia, as follows:G

“21. In our view, Section 13 embodies substantive power.It confers the power to arrest. The procedural safeguards havebeen protected by Section 18. This provision merely regulates theexercise of power under Section 13. It only provides that the

27 2000(118) ELT 8 P&HH

searches and arrests under the Central Excise Act ”shall be carriedout in accordance with the provisions of the Code of CriminalProcedure .....” In other words, an officer of the Central Exciseshall make the arrest in the manner laid down in Section 46 of theCode of Criminal Procedure. He “shall actually touch or confinethe body of the person to be arrested.....” In case of resistance,the officer of the Central Excise “may use all means necessary toeffect the arrest.” The persons arrested “shall not be subjected tomore restraint than is necessary to prevent his escape.” Similarly,a search shall be carried out in accordance with the procedurelaid down in Section 100. If the person of lady has to be searched,it shall be done “by another woman with strict regard to decency.”Two or more independent and respectable inhabitants of the localityshall be called upon to be present. The search shall be made intheir presence and “a list of things seized in the course of suchsearch ..... shall be prepared ......” In nut shell, the proceduralprotection contained in the Code of Criminal Procedure has beenguaranteed even in case of arrests and searches under the CentralExcise Act, 1944. No more.”

124. Single Judge of the High Court of Gujarat, also posed thefollowing question as the one which it had to answer in the case reportedin Bhavin Impex Pvt. Ltd.v. State of Gujarat28, as follows:

“1. The key question that arises for consideration in this writ petitionis as to whether the authorities under the Central Excise Act,1944 (hereinafter referred to as ‘the Act’) have the power toarrest person under Section 13 of the Act without warrant andwithout filing an FIR or lodging complaint before Court ofcompetent jurisdiction.”

125. The Court purported to follow the Punjab and Haryana HighCourt in Sunil Gupta(supra), which we have referred and held, inter alia,as follows:

“This Court is in agreement with the view taken by the Punjaband Haryana High Court, viz, Central Excise Officer, (satisfyingthe conditions laid down under Section 13) is not debarred fromarresting person without warrant when he has reason to believethat the person is liable to punishment under the Act or the rules

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Amade thereunder. Section 13 is not curtailed by Section 18 and infact Section 18 is merely procedural.”

126. We must, however, notice the judgment of this Court reportedin Om Parkash and Anotherv. Union of India and Another29, Judgment,which dealt with the Central Excise Act, 1944 and also the CustomsBAct, 1962. The question, however, which arose was, whether under thesaid enactments, as the offences were non-cognizable, were they bailableas well? Section 9A, as it was considered by this Court, read as follows:

“9A. Certain offences to be non-cognizable.-(1) Notwithstandinganything contained in the Code of Criminal Procedure, 1898 (5 ofC1898), offences under section 9 shall be deemed to be non-cognizable within the meaning of that Code.

(2) Any offence under this Chapter may, either before or afterthe institution of prosecution, be compounded by the ChiefCommissioner of Central Excise on payment, by the personDaccused of the offence to the Central Government, of suchcompounding amount and in such manner of compounding, as maybe prescribed.

Provided that nothing contained in this sub-section shall apply to -

(a) person who has been allowed to compound once in respectEof any of the offences under the provisions of clause (a), (b),(bb), (bbb), (bbbb) or (c) of sub-section (1) of Section 9;

(b) person who has been accused of committing an offenceunder this Act which is also an offence under the Narcotic Drugsand Psychotropic Substances Act, 1985 (61 of 1985);

F(c) person who has been allowed to compound once in respectof any offence under this Chapter for goods of value exceedingrupees one crore;

(d) person who has been convicted by the court under this Acton or after the 30[th] day of December, 2005.”G

127. The Court did make reference to both Sunil Gupta(supra)and Bhavin Impex Pvt. Ltd.(supra). This Court went on to find, on anexamination of the provisions, that being non-cognizable offences underthe Central Excise Act, and taking note of the fact that as general rule,

though, with exceptions under the First Schedule to the CrPC, non-cognizable offences were treated as bailable, and also, taking note ofSection 20 of the Excise Act, which appeared to show that the offenceswere bailable that they were bailable. What is, however, noteworthy forthe purpose of deciding the case before us, is the statement of the lawas contained in paragraph-41, which reads as follows:

“41. In our view, the definition of “non-cognizable offence”in Section 2(l) of the Code makes it clear that non-cognizableoffence is an offence for which police officer has no authorityto arrest without warrant. As we have also noticed hereinbefore,the expression “cognizable offence” in Section 2(c) of the Codemeans an offence for which police officer may, in accordancewith the First Schedule or under any other law for the time beingin force, arrest without warrant. In other words, on constructionof the definitions of the different expressions used in the Code andalso in connected enactments in respect of non-cognizableoffence, police officer, and, in the instant case an excise officer,will have no authority to make an arrest without obtaining warrantfor the said purpose.The same provision is contained in Section41 of the Code which specifies when police officer may arrestwithout order from Magistrate or without warrant.”

(Emphasis supplied)

128. The Court applied the same principles in regard to the caseswhich it decided under the Customs Act. We may notice that Section 18of the Central Excise Act, 1944 provides for the manner of making anarrest. It reads as follows:

“18. Searches and arrests how to be made.- All searches madeunder this Act or any rules made thereunder and all arrests madeunder this Act shall be carried out in accordance with the provisionsof the Code of Criminal Procedure, 1898(5 of 1898), relatingrespectively to searches and arrests made under that Code.”

129. Equally of interest, are the provisions contained in Sections19, 20 and 21:

“19. Disposal of persons arrested.- Every person arrested underthis Act shall be forwarded without delay to the nearest CentralExcise Officer empowered to send persons so arrested to aMagistrate, or, if there is no such Central Excise Officer within

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Areasonable distance, to the officer in charge of the nearest policestation.

20. Procedure to be followed by officer in charge of police station.-The officer in charge of police station to whom any person isforwarded under Section 19 shall either admit him to bail to appearBbefore the Magistrate having jurisdiction, or in default of bailforward him in custody to such Magistrate.

21. Inquiry how to be made by Central Excise Officers againstarrested persons forwarded to them under Section 19. – (1) Whenany person is forwarded under Section 19 to Central ExciseCOfficer empowered to send persons so arrested to Magistrate,the Central Excise Officer shall proceed to inquire into the chargeagainst him.

(2) For this purpose the Central Excise Officer may exercise thesame powers and shall be subject to the same provisions as theDofficer in charge of police station may exercise and is subject tounder the Code of Criminal Procedure, 1898 (5 of 1898), wheninvestigating cognizable case:

Provided that-

(a) If the Central Excise Officer is of opinion that there is sufficientEevidence or reasonable ground of suspicion against theaccused person, he shall either admit him to bail to appearbefore Magistrate having jurisdiction in the case, or forwardhim in custody to such Magistrate;

(b) If it appears to the Central Excise Officer that there is notFsufficient evidence or reasonable ground of suspicion againstthe accused person, he shall release the accused person onhis executing bond, with or without sureties as the CentralExcise Officer may direct, to appear, if and when so required,before the Magistrate having jurisdiction, and shall make afull report of all the particulars of the case to his officialGsuperior.”

130. On perusal of the statement of law contained in paragraph-41, we find that this Court has found that as the provisions under theenactments in question declared the offences to be non-cognizable, theofficer exercising the power of arrest, could not arrest, except afterH

obtaining warrant for the said purpose. That they may not arrest withoutobtaining warrant in respect of the non-cognizable offences, being theview taken by this Court, cannot be squared with the view taken byPunjab and Haryana High Court and Gujarat High Court, respectively,in Sunil Gupta(supra) and also Bhavin Impex Pvt. Ltd. (supra), whichtook the view in effecting arrest under the Central Excise Act, no warrantwas required. It is apparently consequent upon the same that Legislaturestepped in with amendments. Section 9A came to be amended and itreads as follows after the amendment:

“Section 9A. Certain offences to be non-cognizable.-

(1) Notwithstanding anything contained in the Code of CriminalProcedure, 1973(2 of 1974), offences under section 9, except theoffences referred to in sub-section (1A), shall be non-cognizablewithin the meaning of that Code.

(2) Any offence under this Chapter may, either before or afterthe institution of prosecution, be compounded by the Principal ChiefCommissioner of Central Excise or Chief Commissioner of CentralExcise on payment, by the person accused of the offence to theCentral Government, of such compounding amount and in suchmanner of compounding as may be prescribed:

Provided that nothing contained in this sub -section shall apply to

(a) person who has been allowed to compound once inrespect of any of the offences under the provisions of clause(a),(b),(bb),(bbb),(bbbb) or (c) of sub -section (1) of section 9;

(b) person who has been accused of committing an offenceunder this Act which is also an offence under the Narcotic Drugsand Psychotropic Substance Act,1985 (61 of 1985);

(c) person who has been allowed to compound once inrespect of any of the offence under this Chapter for goods ofvalue exceeding rupees one crore;

(d) person who has been convicted by the court underthis Act on or after the 30th day of December, 2005.”

(Emphasis supplied)

A131. The result would appear to be that acknowledging the effectof making the offences being non-cognizable to be to limit the power ofthe authorities under the Act for effecting arrest under the Act, to requirea warrant, certain offences were declared to be cognizable as noticed inSection 9A, as amended after the Judgment in Om Parkash (supra).The resultant position after the amendment is, it became open to theBOfficers to effect the arrest in regard to cognizable offence withoutobtaining warrant.

132. In regard to the Customs Act, 1962 in Section 104, under thepresent avatar, two changes have been brought about. Firstly, the powerto arrest is available in respect of offences under Sections 132, 133, 135,C135A and 136. The offences are divided into two categories. UnderSection 104(4), the offences which fall within its ambit, are treated ascognizable. The other offences are treated as non-cognizable underSection 104(5). For instance, if person is involved in an offence relatingto evasion or attempted evasion of duty exceeding 50 lakhs rupees (w.e.f.D01.08.2019), while the offence is cognizable, the power of arrest isconferred on the Officers under Section 104(1). The power to arrest isconferred and the only condition to be fulfilled is that the Officer hasreason to believe that the person has committed offence concerned.The position is the same in respect of offence relating to prohibited goods.

E133. We have embarked upon referring to the provisions relatingto arrest under the Excise Act and Customs Act and the decision of thisCourt in Om Prakash(supra) in taking the view as it did in paragraph-41,in order to appreciate the contention that, after the amendment to Section36AC, the offences have been declared cognizable. If we proceed onthe basis that the power of arrest can be traced from Section 22(1)(d) ofFthe Act, then, after the amendment in Section 36AC, by which, theoffences falling under Chapter IV of the Act, which are declared ascognizable and non-bailable, the decks are cleared for effecting arrestwithout warrant by the Inspector.

134. However, the question would arise whether there exists theGpower of arrest with the Drugs Inspector. We will, on the one hand,array possible objections to the conferment of such powers. The powerto arrest is drastic power. It involves encroachment on personal liberty.The Drugs Inspector is not Police Officer under the CrPC. TheLegislature was aware of the power of the Police Officer to arrestHwhen he embarks on investigation of cognizable case, as is clear from

Section 157 of the CrPC. There is another indication in the Act whichmay reveal the mind of the Legislature that the power of arrest was notintended to be conferred on the Drugs Inspector. Section 34AA, readsas follows:

“34AA.- Penalty for vexatious search or seizure.—Any Inspectorexercising powers under this Act or the rules made thereunder,who,—

(a) without reasonable ground of suspicion searches any place,vehicle, vessel or other conveyance; or

(b) vexatiously and unnecessarily searches any person; or

(c) vexatiously and unnecessarily seizes any drug or cosmetic, orany substance or article, or any record, register, document or othermaterial object; or

(d) commits, as such Inspector, any other act, to the injury of anyperson without having reason to believe that such act is requiredfor the execution of his duty, shall be punishable with fine whichmay extend to one thousand rupees.”

There is no reference to arrest forming the subject matter ofpenalty.

135. In contrast, we must notice Section 22 of the Central ExciseAct, 1944, reads as follows:

“22. Vexatious search, seizure, etc., by Central Excise Officer.—Any Central Excise or other officer exercising powers under thisAct or under the rules made thereunder who—

(a) without reasonable ground of suspicion searches or causes tobe searched any house, boat or place;

(b) vexatiously and unnecessarily detains, searches or arrests anyperson;

(c) vexatiously and unnecessarily seizes the movable property ofany person, on pretence of seizing or searching for any articleliable to confiscation under this Act;

(d) commits, as such officer, any other act to the injury of anyperson, without having reason to believe that such act is re-quiredfor the execution of his duty, shall, for every such offence, be

Apunishable with fine which may extend to two thousand rupees.Any person wilfully and maliciously giving false information andso causing an arrest or search to be made under this Act shallbe punishable with fine which may extend to two thousand rupeesor with imprisonment for term which may extend to two yearsor with both.”B

(Emphasis supplied)

136. Still further, as we have noticed in the Central Excise Act,1944, apart from the fact that the power of arrest is expressly conferred,the manner, in which the power is to be exercised, is specifically indicated,Cas we have noticed on perusal of Sections 19 and 20. Section 68 of theGold Control Act, 1968 has expressly conferred power of arrest, theconditions in which the power could be exercised and further procedureto be followed.

137. We have noticed that the Inspector under the Act has beenDconferred with vast and formidable array of powers, and in an enactmentlike the Act, the taking of samples, the Report given by the CompetentOfficer in regard to the same and the right reserved to the concernedperson to seek further Report from the Central Laboratory, go longway in the successful culmination of complaint under Section 32 of theAct. The Inspector is, undoubtedly, endowed with the power of inspection,Etaking samples of any drug or cosmetic, searching any person, searchingany place, searching any vehicle, examining records, registers, documentsand other material objects and seizing the same, requiring any person toproduce any record, register or other document. These are powers whichare expressly conferred on the Inspector. Though, complaint could beFfiled by other categories of complainants in Section 32 of the Act, theInspector is pivot around which the Act moves. Rule 51(4) makes it aduty on the part of the Drugs Inspector to investigate any complaint inwriting which may be made to him. It is also his duty under Rule 51(5) toinstitute prosecution in respect of breaches of the Act and the Rulesthereunder. He is also duty-bound under Rule 51(7) to make inquiriesGand inspections as may be necessary to detect sale of drugs incontravention of the Act. Under Rule 52, in regard to manufacture ofdrugs, it is again the duty to institute prosecution for breaches besidesmaking inspections of all premises. This is having regard to both hisqualifications and also the powers conferred on him. Section 23 of theHAct, undoubtedly, is the procedure to be followed by the Inspector. Weare, therefore, to ascertain the meaning of the expression “other powers”,which are essential for carrying out the object of Chapter IV and theRules made thereunder. The Legislature has not given any hint, intendingto limit the scope of the residuary powers. No doubt, the Act is pre-Independence Act. If we interpret that it is Drugs Inspector, actingunder Section 22 of the Act, who alone can investigate offences fallingunder Chapter IV of the Act and there is no power for the Police Officerunder the CrPC to investigate under the Act or to file Report underSection 173 of the CrPC, which indeed is indisputable, then, power ofarrest, which is necessary for the purpose of investigating and prosecutionof the offences falling within Chapter IV of the Act, must be concededto the Drugs Inspector. The legislative intention in conferring variouspowers, as we have noticed in the foregoing provisions of Section 22 ofthe Act and declaring that all other powers, which are necessary for thepurpose of the Act, are to inhere in the Drugs Inspector, reassures usthat we would be correctly ascertaining the legislative intention to bethat on Drug Inspector taking-up matter falling under Chapter IV ofthe Act, he is invested with the power to arrest.

138. There is another aspect which may have an important bearingon the issue. Under Section 36AC of the Act, the offences as mentionedtherein which include some of the offences under Chapter IV of the Actare declared cognizable and non-bailable. The provision imposesrestriction on the arrested person being released on bail or on his ownbond unless the public prosecutor has been given an opportunity to opposethe application and when the public prosecutor opposes the application,the Court is to be satisfied that there are reasonable grounds for believingthat the accused person is not guilty of such offence and that he is notlikely to commit an offence. This limitation, is apart from the limitationsin the CrPC, inter alia. Now, the Police Officer acting under the CrPCeven proceeding for moment on the basis that it is sufficient that amere memorandum of arrest as required under the CrPC is preparedand further there is compliance with other provisions of the CrPC also,would it suffice is the question that would arise in the following manner?We have noted from the provisions of the Act and the Rules that it is theDrugs Inspector who is empowered and duty bound to investigate thecomplaint about violations of acts and rules. He is the person chargedwith duty of prosecuting the offenders. If the police officer is merelyto be granted power of arrest and without having any power ofinvestigation then how would it be possible for the police officer to make

Aany investigation under the act and if no investigation is possible, howwould the Police Officer be in position to be of any assistance to thePublic Prosecutor and, therefore, to the Court in the disposal of anapplication for bail? In other words, it would be based on the records ofinvestigation and material collected by the investigating officer that aCourt in case would decide as to whether bail is to be granted or not.BHow would the police officer seek remand for carrying out investigationwhich he cannot do? If the Act and the Rules do not contemplateinvestigation by Police Officer, then, conferring the power of arrest onthe Police Officer, would, in fact, frustrate the working of the Act. Onthe other hand, if it is the Drugs Inspector who can arrest, the followingCconsequences would follow:

a. He has the requisite technical qualifications to properlyinvestigate and prosecute the offender.

b. He would be able to make adequate entries in whateverdocument he has to maintain as part of investigation and itDwould facilitate proper and fair consideration of an applicationfor bail within the meaning of Section 36AC of the Act andalso facilitate request for remand under Section 167 of theCr.P.C.

139. Declaring the power to arrest with the Inspector, is not to beEunderstood as proclaiming that the Inspector is bound to arrest any person.The provisions of the CrPC, relating to arrest, would necessarily have tobe followed by the Drugs Inspector. In fact, he is obliged to bear in mindthe law, as declared by this Court in D.K. Basu(supra), and the peril ofdefying the same, would be to invite consequences, inter alia, as areFprovided therein. As far as the arrest, not being mentioned in Section34AA, as forming ground for visiting the delinquent Officer with penalty,it may be noticed that there is residuary power in Section 34AA and itwould cover any act. We notice that Section 34AA(d) provides that ifany Inspector, exercising powers under the Act or the Rules madethereunder, commits, as such Inspector, any other act, to the injury ofGany person without having reason to believe that such act is required forthe execution of his duty, he shall be punishable with fine which mayextend to one thousand rupees.

140. Regarding the power for seeking and ordering remandunder Section 167, we would apply the principles laid down by this CourtHin Deepak Mahajan (supra) and the same principles would apply.

141. This process of interpretation would produce the result ofharmonizing two seemingly irreconcilable commands from the Law-Giver.This interpretation commends itself to us for the reason that theinvestigation into offences, under Chapter IV of the Act, would commence,be carried out and would culminate in, in the safe hands of the competentand qualified Statutory Authority, as designated by law. It would alsoavoid an outside agency like Police Officer, being obliged to registeran FIR, for the reason that where arrest has to be made, FIR is to beregistered, and, when the registering of the FIR carries with it anunattainable object of preferring Final Report under Section 173 of theCrPC, as far as the Police Officer is concerned. We make it clear thatif Police Officer is approached with regard to complaint regardingcommission of an offence falling under Chapter IV of the Act, he is notto register an FIR unless it be that cognizable offence, other than anoffence falling under Chapter IV of the Act, is also made out. He mustmakeover the complaint to the competent Drug Inspector so that actionin according with law is immediately taken where only offences underChapter IV are made out.

142. As far as the arrest contemplated under Section 41 of theCrPC is concerned, in case cognizable offence, falling under ChapterIV of the Act, is committed, either in the presence of the Drugs Inspector,or in respect of which offence, Police Officer would have power toarrest, as provided therein, viz., covered by the situations contemplatedunder Section 41(ba), the Drugs Inspector would be entitled to effectthe arrest. We are arriving at this conclusion on the basis that since theprocedure under the CrPC is to be read as applicable, except to theextent that different procedure is to be provided under the Act, andsince there is no procedure or power otherwise provided in the Act inregard to arrest, the powers and procedure available to Police Officer,with the limitations on the said power, as laid down in D.K. Basu(supra),as also as contained in the CrPC, would be applicable.143. By way of following Deepak Mahajan(supra), we hold thatthe Drugs Inspector, under the Act, is invested with certain powers similarto Police Officer. Still further, we would hold that the word“investigation” cannot be limited only to Police investigation, as hasbeen noted in Deepak Mahajan(supra). Thirdly, we find that the powerto arrest person must indeed flow from the provisions of Statute.The statutory provision under the Act is Section 22(1)(d). The arrested

Aperson, under the Act, would be an accused person to be detained underSection 167(2) of the CrPC. No doubt, the Police Officer is bound toprovide assistance to the Inspector in case of need to effectuate thearrest where there is resistance or likelihood of resistance. No doubt, inregard to the arrest in relation to offences falling under Chapter IV ofthe Act, which do not fall under Section 36AC, the power of arrestBwould depend upon the provision in the Schedule to the CrPC.

144. We again reiterate that the existence of the power to arrestwith the Drugs Inspector is not to be understood as opening the doors tomaking illegal, unauthorized or unnecessary arrest. Every power comeswith responsibility. In view of the impact of an arrest, the highest careCmust be taken to exercise the same strictly as per the law. The power ofarrest must be exercised, recognizing the source of his authority, to beSection 22(1)(d) of the Act, which is for carrying out the purpose ofChapter IV of the Act or any Rules made thereunder.

145. Section 33P of the Act, reads as follows:D

“33P. Power to give directions.—The Central Government maygive such directions to any State Government as may appear tothe Central Government to be necessary for carrying into executionin the State any of the provisions of this Act or of any rule ororder made thereunder.”E

We notice that the Central Government is conferred with powersto give directions to the State Government for the purpose of carryinginto execution, in the State, any of the provisions of the Act or any Ruleor Order made thereunder. It is for the Central Government to considerthe question whether it can, under the said provision, issue directions inFregard to the power of arrest, which we have found, subject to what wehave stated in this Judgment.

146. Further, Section 58 of the CrPC provides that the OfficersIn-charge of Police Stations are to report cases of all persons arrestedwithout warrant as provided therein. We make it clear that the DrugsGInspector must, apart from other relevant provisions of the CrPC, complywith the requirement of reporting. In view of the need to safeguard theinterest of persons, who may be proceeded against by the Drugs Inspector,we also hold and direct that the Drugs Inspector will immediately, afterarrest, make report of the arrest to his superior Officer.

147. It has been brought to our notice that FIRs have been filed inregard to offences under Chapter IV of the Act. In the view we havetaken, no further investigation can be done by the Police Officer.However, it is in the interest of justice that the FIRs are made over bythe Police Officers to the concerned Drugs Inspector at the earliest. Weare persuaded to issue such directions in the exercise of our powersunder Article 142 of the Constitution of India.

148. It would appear that on an understanding of the provisions,arrests would have been effected by Police Officers in regard to thecognizable offences under Chapter IV of the Act. Having regard to thefact that we are resolving this controversy on conspectus of the variousprovisions of the Act and the CrPC, we are inclined to direct that thisJudgment, holding that Police Officers do not have power to arrest inregard to cognizable offences under Chapter IV of the Act, is to operatefrom the date of this Judgement.

149. Before we proceed to the operative portion of our Judgment,we must express the hope that the vexed issues which we have resolvedthrough this Judgment, in regard to the power of arrest, may engage thecompetent Legislative Body.

THE CONCLUSIONS/DIRECTIONS

150. Thus, we may cull out our conclusions/directions as follows:

I.In regard to cognizable offences under Chapter IV of theAct, in view of Section 32 of the Act and also the schemeof the CrPC, the Police Officer cannot prosecute offendersin regard to such offences. Only the persons mentioned inSection 32 are entitled to do the same.

II.There is no bar to the Police Officer, however, to investigateand prosecute the person where he has committed anoffence, as stated under Section 32(3) of the Act, i.e., if hehas committed any cognizable offence under any other law.

III.Having regard to the scheme of the CrPC and also themandate of Section 32 of the Act and on conspectus ofpowers which are available with the Drugs Inspector underthe Act and also his duties, Police Officer cannot registera FIR under Section 154 of the CrPC, in regard to cognizable

Aoffences under Chapter IV of the Act and he cannotinvestigate such offences under the provisions of the CrPC.IV.Having regard to the provisions of Section 22(1)(d) of theAct, we hold that an arrest can be made by the DrugsInspector in regard to cognizable offences falling underBChapter IV of the Act without any warrant and otherwisetreating it as cognizable offence. He is, however, boundby the law as laid down in D.K. Basu (supra) and to followthe provisions of CrPC.

V.It would appear that on the understanding that the PoliceOfficer can register FIR, there are many cases whereCFIRs have been registered in regard to cognizable offencesfalling under Chapter IV of the Act. We find substance inthe stand taken by learned Amicus Curiae and direct thatthey should be made over to the Drugs Inspectors, if notalready made over, and it is for the Drugs Inspector to takeDaction on the same in accordance with the law. We mustrecord that we are resorting to our power under Article142 of the Constitution of India in this regard.

VI.Further, we would be inclined to believe that in number ofcases on the understanding of the law relating to the powerof arrest as, in fact, evidenced by the facts of the presentEcase, police officers would have made arrests in regard tooffences under Chapter IV of the Act. Therefore, in regardto the power of arrest, we make it clear that our decisionthat Police Officers do not have power to arrest in respectof cognizable offences under Chapter IV of the Act, willFoperate with effect from the date of this Judgment.

VII.We further direct that the Drugs Inspectors, who carry outthe arrest, must not only report the arrests, as provided inSection 58 of the CrPC, but also immediately report thearrests to their superior Officers.

G151. In view of our conclusions/directions and subject to the same,we would, on the facts, uphold the impugned Judgment and dismiss theAppeal. We record our appreciation for the enlightening submissions ofthe learned Amicus Curiae Shri S. Nagamuthu.

HDivya Pandey