1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.200 OF 2020
(@ S.L.P.(CRIMINAL)No.4178 of 2019)
UNION OF INDIA ... APPELLANT(S)
VERSUS
ASHOK KUMAR SHARMA AND OTHERS ... RESPONDENT(S)
J U D G M E N T
K.M. JOSEPH, J.
1. What is the interplay between the provisions of the
Code of Criminal Procedure (hereinafter referred to as
“CrPC” for short) and the Drugs and Cosmetics Act, 1940
(hereinafter referred to as “the Act” for short)? Whether
in respect of offences falling under chapter IV of the Act,
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a FIR can be registered under Section 154 of the CrPC and
the case investigated or whether Section 32 of the Act
supplants the procedure for investigation of offences under
CrPC and the taking of cognizance of an offence under
Section 190 of the CrPC? Still further, can the Inspector
under the Act, arrest a person in connection with an offence
under Chapter IV of the Act.
2. One Naushad Khan made an online complaint on 22.2.2018.
The Commissioner (Food Protection and Drugs) directed
enquiry and the Drug Inspector, Mau, U.P. along with two
others conducted an inspection at the Sharda Narayan Clinic
and Pharmacy and the respondent No.1 was directed to show
papers in respect of medicines stored in the shop. The
first respondent according to the appellant stated that he
did not have any license though he was the owner of the
medical store 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 22.6.2018 purporting to be under
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Section 18 (a)(i) and Section 27 of the Act. The
complainant it may be noted is none other than the Drugs
Inspector. The respondent filed a writ petition for
quashing the FIR and not to arrest him. The appellant,
viz., the Union of India through the Secretary, Ministry
of Health and Family Welfare was not made a 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 personal capacity. This is
apart from the State of U.P. which was made the first
respondent. It is pointed out by the appellant that the
High Court issued notice seeking presence of the appellant.
The High Court by the impugned order had allowed the writ
petition and quashed the FIR. In short, the reasoning of
the High Court is that under the Act Section 32 must be
scrupulously observed and it is the mechanism for
prosecuting offences and there is no scope for registration
of a FIR under CrPC.
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FINDINGS OF THE HIGH COURT
3. The High Court referred to Section 32 of the Act and
found that only an Inspector, a Gazetted Officer conferred
with authority, a person aggrieved or recognized consumer
organization is eligible to make a complaint. The court
adverted to the other provisions of the Act including
Sections 22, 23, 25 and 27 apart from Section 32 and found
that the Act clearly lays down a complete code for the trial
of offences committed in respect of Drugs and Cosmetics.
The Act was a special Act enacted for the trial of offences
committed under the Act. No other provision would be
applicable as the Act had an overriding effect over all
Acts. The provisions of the CrPC would not be applicable
except as provided in the Act itself. Since the lodging
of an FIR is under Section 154 of the CrPC, the said
provision would not be invokable. It further held as
follows:
“21. In this Act, the procedure for launching
a prosecution has been clearly laid down
saying that prosecution under this Act can be
initiated only on a complaint made by an
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authorized Inspector or other authorized
persons defined under Section 32, who is
supposed to follow the entire procedure as
narrated above. By no stretch of imagination
could the concerned Inspector have lodged an
F.I.R. in this case and authorize the police
to make investigation in this case.”
4. It was further held that the lodging of the FIR is
absolutely barred and FIR deserved to be quashed. The
court also directed the issue of notice to the Inspector
who had gone to lodge the FIR, despite there being a special
provision for launching the prosecution and explanation was
sought. Still further it was directed as follows:
“23. We, accordingly, allow this petition
and quash the F.I.R. and simultaneously it is
further directed that notice shall be issued
to the concerned Inspector by the Competent
Authority to show cause as to why he
deliberately lodged an F.I.R. when there is
specific provision for prosecuting the
accused by lodging a complaint. The
explanation and action taken against him,
shall be forwarded to the Court by the
Competent Authority within 8 weeks from today
through Registrar General of this Court who
shall place the same before us for perusal in
our chambers as soon as the same is received
by Registrar General. We further grant
liberty to the respondent no. 4 to initiate
criminal proceedings in accordance with the
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procedure laid down under this Act forthwith
against the petitioner.
24. Registrar General to sent a certified
copy of this order to Principal Secretary,
Food Safety and Drug Administration,
Government of U.P. for his necessary
information and follow up action. It is
further directed that Principal Secretary,
Food Safety and Drug Administration,
Government of U.P. shall notify such
direction to all the D.Ms. of the State so
that no such error recurs.”
5. We heard Ms. Pinky Anand, learned Additional Solicitor
General appearing on behalf of the appellant. We also
heard Shri S. Nagamuthu, learned Senior Counsel, whom we
appointed as Amicus Curiae.
SUBMISSIONS OF THE APPELLANT
6. Ms. Pinky Anand, learned Additional Solicitor General
would submit that the High Court was in error in holding
that FIR under CrPC cannot be lodged in respect of the Act.
She drew our attention to Section 36 AC of the Act.
Thereunder, as we shall see in greater detail, certain
offences under the Act have been declared to be cognizable
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offences. She would point out that once these offences are
declared as cognizable offences it is inconceivable that
a FIR cannot be lodged under the CrPC in regard to the same.
She drew our attention to Section 4 and 5 of the CrPC. She
contended that there is nothing in the Act which detracted
from a FIR being registered in regard to offences under the
Act. Regarding the consequences flowing from Section 32 of
the Act, it is her contention that the High Court fell in
error in ignoring Section 36AC of the Act. It is her
complaint that the Act contemplated curbing of various
highly undesirable activities posing a great threat to the
health and the safety of citizens as can be gleaned from
the grave offences which have been created under the Act.
In fact, it is pointed out that many cases where
investigation was carried out on the basis of FIR lodged
under the Act will witness unmerited burial and offenders
would go scot free if the impugned judgment of the High Court
is allowed to stand. There is no bar under the Act to the
registration of FIR under CrPC.
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7. Shri Nagamuthu, learned senior counsel submitted that
having regard to the scheme of the Act and Section 32, in
particular, the judgment of the High Court is only to be
supported. He drew our attention to the following
judgments:
a.Jeewan Kumar Raut and another v. CBI1;
b.State (NCT of Delhi) v. Sanjay2.
8. He also referred to the judgment of this Court in Kanwar
Pal Singh v. State of Uttar Pradesh and another in Criminal
Appeal No.1920 of 2019. He would submit that as far as
offences falling within the ambit of Section 36AC are
concerned, a FIR under Section 154 of the CrPC is not
contemplated and cannot be registered. The mere fact that
Section 36 AC of the Act declares certain offences under
the Act cognizable would not mean that the scheme of Section
32 of the Act can be jettisoned. He would point out that
1 (2009) 7 SCC 526
2 (2014) 9 SCC 772
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prosecution can be launched only in the manner provided
under the Act in regard to offences under the Act covered
by Section 32. The institution of the prosecution can be
only at the instance of the persons named in the said
section. He points out that Section 32 came to be amended
at the same time as Section 36 AC was inserted. Nothing
prevented the Legislature if it so desired to provide that
the offences falling under Section 32 should be
investigated in the manner provided under the provisions
of the CRPC namely by lodging a FIR and after investigating
the offences by filing a report within the meaning of
Section 173 of the CrPC. The fact that such a procedure
was not contemplated by the Legislature is clear from the
fact that under the pre amended regime, three out of four
categories mentioned in the present amended avtaar were
already present and the amendment added only one more to
the categories of persons who alone could institute the
prosecution. In fact, as regards Section 36 AC declaring
certain offences under the Act to be cognizable, he drew
our attention to the second part of the first schedule of
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the CrPC. He contended inter alia that even without 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
imprisonment provided as punishment for the same. Nothing
turned on the offence being cognizable except apprehension
of the offender without the aid of a warrant. He would
submit that in regard to the offences embraced by Section
32, an F.I.R. within the meaning of the CrPC is not
contemplated but he was at pains to point out that this did
not stand in the way of an F.I.R. being lodged if the
offence constituted a distinct offence under any other law.
In such a scenario, while the lodging of the F.I.R. in regard
to the offences covered by Section 32 would be impermissible
the 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 under Section 32, should they be
cognizable. In this case, he would submit that the offence
alleged is under Section 27 (1)(b) of the Act which squarely
fell within the four walls of Section 32. So, also Section
18 prohibiting certain acts fell in Chapter IV of the Act,
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thus, attracting Section 32. In regard to these offences,
Section 32 constitutes a bar for the registration of an
F.I.R. under CrPC and the investigation as an ordinary case.
9. In reply to submission of learned Amicus Curiae,
Ms. Pinky Anand, learned Additional Solicitor General, drew
our attention to Section 36AC and reiterated that neither
the CrPC nor the Act constitute a stumbling block to the
lodging of an FIR. She also drew our attention to Section
13 of the Act. It is pointed out that Section 13 falls under
Chapter III. She contended that the Act contemplated a
Special Court to deal with the offences under the Act. The
procedure leading to the institution of the prosecution
case must be governed by the provisions of the CrPC, runs
her argument.
ANALYSIS
10. The Act purports to achieve the object of regulating
the import, manufacture, distribution and sale of drugs and
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cosmetics. The word Drugs has been defined in Section 3(b).
Section 3(e) defines Inspector:
“3 Definitions. —In this Act, unless there
is anything repugnant in the subject or
context,—
(e) “Inspector” means—
(i) in relation to Ayurvedic, Siddha or
Unani drug, an Inspector appointed by the
Central Government or a State Government
under section 33G; and
(ii) in relation to any other drug or
cosmetic, an Inspector appointed by the
Central Government or a State Government
under section 21;
11. Chapter III contains provisions which provide for
deeming definitions of misbranded drugs, adulterated
drugs, spurious drugs, misbranded cosmetics and spurious
cosmetics for the purpose of Chapter III. Section 13
provides for offences arising out of imports. Chapter IV
falls under the chapter heading “Manufacture, Sale and
Distribution of Drugs and Cosmetics”. Interestingly,
misbranded drugs, adulterated drugs, spurious drugs,
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misbranded cosmetics and spurious cosmetics, adulterated
cosmetics are defined by provisions found in Chapter IV for
the purpose of Chapter IV. Section 18 contemplates that from
such date as may be fixed by the State Government,
manufacture for sale or distribution, or to sell, or stock
or exhibit or offer for sale or distribution of drugs
misbranded, adulterated, spurious drugs and cosmetics
inter alia are prohibited. Section 21 reads as follows:
“21. Inspectors.—
(1) The Central Government or a State
Government may by notification in the
Official Gazette, appoint such persons as
it thinks fit, having the prescribed
qualifications, to be Inspectors for such
areas as may be assigned to them by the
Central Government or the State
Government, as the case may be.
(2) The powers which may be exercised by an
Inspector and the duties which may be
performed by him, the drugs or [classes of
drugs or cosmetics or classes of cosmetics]
in relation to which and the conditions,
limitations or restrictions subject to
which, such powers and duties may be
exercised or performed shall be such as may
be prescribed.
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(3) No person who has any financial
interest in the import, manufacture or sale
of drugs or cosmetics shall be appointed to
be an Inspector under this section.
(4) Every Inspector shall be deemed to be
a public servant within the meaning of
section 21 of the Indian Penal Code (45 of
1860), and shall be officially subordinate
to such authority, having the prescribed
qualifications,] as the Government
appointing him may specify 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 appointed an Inspector under the Act
shall be a person who has a degree in Pharmacy
or Pharmaceutical Sciences or Medicine with
specialisation in Clinical Pharmacology or
Microbiology from a University established
in India by law: Provided that only those
Inspectors—
(i) who have not less than 18 months’
experience in the manufacture of at least one
of the substances specified in Schedule C, or
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(ii) who have not less than 18 months’
experience in testing of at least one of the
substances in Schedule C in a laboratory
approved for this purpose by the licensing
authority, or
(iii) who have gained experience of not less
than three years in the inspection of firm
manufacturing any of the substances
specified in Schedule C during the tenure of
their services as Drugs Inspectors; shall be
authorised to inspect the manufacture of the
substances mentioned in Schedule C:
Provided further that the requirement as
to the academic qualification shall not apply
to persons appointed as Inspectors on or
before the 18th day of October, 1993.”
Rule (51) deals with duties of Inspectors in regard to
sale. It reads as follows:
“51. Duties of Inspectors of premises
licensed for sale.—Subject to the
instructions of the controlling authority,
it shall be the duty of an Inspector
authorized to inspect premises licensed for
the sale of drugs—
(1) to inspect not less than once a year all
establishments licensed for the sale of drugs
within the area assigned to him;
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(2) to satisfy himself that the conditions of
the licences are being observed;
(3) to procure and send for test or analysis,
if necessary, imported packages which he has
reason to suspect contain drugs being sold or
stocked or exhibited for sale in
contravention of the provisions of the Act or
rules thereunder;
(4) to investigate any complaint in writing
which may be made to him;
(5) to institute prosecutions in respect of
breaches of the Act and rules thereunder;
(6) to maintain a record of all inspections
made and action taken by him in the
performance of his duties, including the
taking of samples and the seizure of stocks,
and to submit copies of such record to the
controlling authority;
(7) to make such enquiries and inspections as
may be necessary to detect the sale of drugs
in contravention of the Act;
(8) when so authorized by the State
Government, to detain imported packages
which he has reason to suspect contain drugs,
the import of which is prohibited.”
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Rule (52) deals with duties of Inspectors in regard to
manufacturer. It reads as follows:
“52. Duties of inspectors specially
authorised to inspect the manufacture of
drugs or cosmetics. —Subject to the
instructions of the controlling authority it
shall be the duty of an Inspector authorized
to inspect the manufacture of drugs—
(1) to inspect [not less than once a year],
all premises licensed for manufacture of
drugs or cosmetics within the area allotted
to him to satisfy himself that the conditions
of the licence and provisions of the Act and
Rules thereunder are being observed;
(2) in the case of establishments licensed to
manufacture products specified in Schedules
C and C (1) to inspect the plant and the
process of manufacture, the means employed
for standardizing and testing the drug, the
methods and place of storage, the technical
qualifications of the staff employed and all
details of location, construction and
administration of the establishment likely
to affect the potency or purity of the
product;
(3) to send forthwith to the controlling
authority after each inspection a detailed
report indicating the conditions of the
licence and provisions of the Act and rules
thereunder which are being observed and the
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conditions and provisions, if any, which are
not being observed;
(4) to take samples of the drugs manufactured
on the premises and send them for test or
analysis in accordance with these Rules;
(5) to institute prosecutions in respect of
breaches of the Act and rules thereunder.”
Section 22 deals with the powers of the Inspector.
reads as follows:
“22. Powers of Inspectors.—(1) Subject to
the provisions of section 23 and of any rules
made by the Central Government in this
behalf, an Inspector may, within the local
limits of the area for which he is
appointed,—" (a) inspect,—"
(i) any premises wherein any drug or cosmetic
is being manufactured and the means employed
for standardising and testing the drug or
cosmetic;
(ii) any premises wherein any drug or
cosmetic is being sold, or stocked 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 or exhibited or offered for
sale, or is being distributed;
(ii) from any person who is in the course of
conveying, delivering or preparing to
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deliver such drug or cosmetic to a purchaser
or a consignee;
(c) at all reasonable times, with such
assistance, if any, as he considers
necessary,—
(i) search any person, who, he has reason to
believe, has secreted about his person, any
drug or cosmetic in respect of which an
offence under this Chapter has been, or is
being, committed; or
(ii) enter and search any place in which he
has reason to believe that 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
or cosmetic in respect of which an offence
under this Chapter has been, or is being,
committed,
and order in writing the person in possession
of the drug or cosmetic in respect of which
the offence has been, or is being, committed,
not to dispose of any stock of such drug or
cosmetic for a specified period not exceeding
twenty days, or, unless the alleged offence
is such that the defect may be removed by the
possessor of the drug or cosmetic, seize the
stock of such drug or cosmetic and any
substance or article by means of which the
offence has been, or is being, committed or
which may be employed for the commission of
such offence;
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(cc) examine any record, register, document
or any other material object found with any
person, or in any place, vehicle, vessel or
other conveyance referred to in clause (c),
and seize the same if he has reason to believe
that it may furnish evidence of the
commission of an offence punishable under
this Act or the Rules made thereunder;
(cca) require any person to produce any
record, register, or other document relating
to the manufacture for sale or for
distribution, stocking, exhibition for sale,
offer for sale or distribution of any drug or
cosmetic in respect of which he has reason to
believe that an offence under this Chapter
has been, or is being, committed;
(d) exercise such other powers as may be
necessary for carrying out the purposes of
this Chapter or any rules made thereunder.
22(2)The provisions of the Code of Criminal
Procedure, 1973 (2 of 1974)] shall, so far as
may be, apply to any search or seizure under
this Chapter as they apply to any search or
seizure made under the authority of a warrant
issued under section 94 of the said 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 a period of twenty days of the
date of such seizure or production, as the
case may be, after copies thereof or extracts
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therefrom certified by that person, in such
manner as may be prescribed, have been taken.
(3)If any person wilfully obstructs an
Inspector in the exercise of the powers
conferred upon by or under this Chapter or
refuses to produce any record, register or
other document when so required under clause
(cca) of sub-section (1), he shall be
punishable with imprisonment which may
extend to three years or with fine, or with
both.”
(Emphasis supplied)
13. Section 23 provides for the procedure to be followed
by the Inspector. It includes the tendering of fair price
when a sample is taken of a drug or cosmetic under the
Chapter. There are various other provisions regarding the
procedure to be followed by the Inspector which includes
seizure of record/ register, documents or other material
objects and the need to notify a judicial Magistrate [See
Section 23(6)].
14. Section 27 provides for penalty for manufacture, sale
etc. of drug in contravention of Chapter IV. It reads as
follows:
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“27. Penalty for manufacture, sale, etc., of
drugs in contravention of this Chapter.-
Whoever, himself or by any other person on his
behalf, manufactures for sale or for
distribution, or sells, or stocks or exhibits
or offers for sale or distributes,-
(a) any drug deemed to be adulterated under
section 17A or spurious under
section 17B and which when used by any
person for or in the diagnosis,
treatment, mitigation, or prevention of
any disease or disorder is likely to
cause his death or is likely to cause
such harm on his body as would amount to
grievous hurt within the meaning of
section 320 of the Indian Penal Code (45
of 1860), solely on account of such drug
being adulterated or spurious or not of
standard quality, as the case may be,
shall be punishable with imprisonment
for a term which shall not be less than
ten years but which may extend to
imprisonment for life and shall also be
liable to fine which shall not be less
than ten lakh 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 way
of compensation, to the person who had
used the adulterated or spurious drugs
referred to in this clause:
Provided further that where the use of
the adulterated or spurious drugs
referred to in this clause has caused the
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death of a person who used such drugs,
the fine imposed on and realised from,
the person convicted under this clause,
shall be paid to the relative of the
person who had died due to the use of the
adulterated or spurious drugs referred
to in this clause.
Explanation.--For the purposes of the
second proviso, the expression
"relative" means--
(i) spouse of the deceased person; or
(ii) a minor legitimate son, and
unmarried legitimate daughter and a
widowed mother; or
(iii) parent of the minor victim; or
(iv) if wholly dependent on the earnings
of the deceased person at the time of his
death, a son or a daughter who has
attained the age of eighteen years; or
(v) any person, if wholly or in part,
dependent on the earnings of the deceased
person at the time of his death,--
(a) the parent; or
(b) a minor brother or an unmarried
sister; or
(c) a widowed daughter-in-law; or
(d) a widowed sister; or
(e) a minor child of a pre-deceased son;
or
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(f) a minor child of a pre-deceased
daughter where no parent of the 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 being a drug referred to in
clause (a), or
(ii) without a valid licence as required
under clause (c) of section 18, shall be
punishable with imprisonment for a term
which shall not be less than three years but
which may extend to five years and with fine
which shall not be less than one lakh rupees
or three times the value of the drugs
confiscated, whichever is more:
Provided that the Court may, for any
adequate and special reasons to be recorded
in the judgment, impose a sentence of
imprisonment for a term of less than three
years and of fine of less than one lakh
rupees;
(c) any drug deemed to be spurious under
section 17B, but not being a drug
referred to in clause (a) shall be
punishable with imprisonment for a
term which shall not less than seven
years but which may extend to
imprisonment for life and with fine
which shall not be three lakh rupees
or three times the value of the drugs
confiscated, whichever is more:
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Provided that the Court may, for
any adequate and special reasons, to
be recorded in the judgment, impose a
sentence of imprisonment for a term
of 8 [less than seven years but not
less than three years and of fine of
less than one lakh rupees];
(d) any drug, other than a drug referred
to in clause (a) or clause (b) or
clause (c), in contravention of any
other provision of this Chapter or any
rule made thereunder, shall be
punishable with imprisonment for a
term which shall not be less than one
year but which may extend to two
years and with fine which shall not be
less than twenty thousand rupees:
Provided that the Court may for
any adequate and special reasons to be
recorded in the judgment impose a
sentence of imprisonment for a 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 center stage of the controversy
reads as follows:
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“32 Cognizance of offences. — (1) No
prosecution under this Chapter shall be
instituted except by—
(a) an Inspector; or
(b) any gazetted officer of the Central
Government or a State Government authorised
in writing in this behalf by the Central
Government or a State Government by a general
or special order made in this behalf by that
Government; or
(c) the person aggrieved; or
(d) a recognised consumer association
whether such person is a member of that
association or not.
(2) Save as otherwise provided in this Act,
no court inferior to that of a Court of
Session shall try an offence punishable under
this Chapter.
(3) Nothing contained in this Chapter shall
be deemed to prevent any person from being
prosecuted under any other law for any act 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, Siddha and Unani Drugs”. It also contains
27
provisions for the purpose of Chapter IV-A dealing with
deemed definitions of Misbranded drugs, Adulterated drugs,
Spurious drugs and are created offences. Section 33G
provides for appointment of Inspectors by the Central
Government or the State Government. Section 33H makes the
provision of Section 22,23,24 and 25 and the rules, if any,
thereunder applicable in respect of Ayurvedic, Siddha and
Unani drugs. Section 33M reads as follows:
“33M. Cognizance of offences.—
(1) No prosecution under this Chapter shall
be instituted except by an Inspector [with
the previous sanction of the authority
specified under sub-section (4) of section
33G.
(2) No Court inferior to that [of a
Metropolitan Magistrate or of a Judicial
Magistrate of the first class] shall try an
offence punishable under this Chapter.”
17. The last Chapter of the Act is Chapter V. It bears the
Chapter heading “Miscellaneous”. Section 36 declares that
any Metropolitan Magistrate or Judicial Magistrate of First
Class may pass a sentence in excess of the powers under the
28
CrPC. Section 36A provides that certain offences are to be
tried summarily.
18. Section 36AB provides for Special Courts. It declares
that the Central Government or the State Government in
consultation with the Chief Justice of the High Court,
shall, for certain offences designate one or more Court of
Sessions as a Special Court or Special Courts. Sub-section
(2) provides that the Special Court may try an offence other
than the offences covered by sub-section (1) which may be
charged against the accused at the same trial. Section
36AC around which much arguments were addressed reads as
follows:
“36AC. Offences to be cognizable and
non-bailable in certain cases. —
(1) Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2 of
1974),—
(a) every offence, relating to adulterated
or spurious drug and 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 and
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sub-sections (1) and (2) of section 30 and
other 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 and sub-sections (1) and (2) of section
30 and other offences relating to adulterated
drugs or spurious drugs, shall be released on
bail or on his own bond unless—
(i) the Public Prosecutor has been given an
opportunity to oppose the application for
such release; and
(ii) where the Public Prosecutor opposes the
application, the Court is satisfied that
there are reasonable grounds for believing
that he is not guilty of such offence and that
he is not likely to commit any offence while
on bail:
Provided that a person, who, is under the age
of sixteen years, or is a woman or is sick or
infirm, may be released on bail, if the
Special Court so directs.
(2) The limitation on granting of bail
specified in clause (b) of sub-section (1) is
in addition to the limitations under the Code
of Criminal Procedure, 1973 (2 of 1974) or any
other law for the time being in force on
granting of bail.
30
(3) Nothing contained in this section shall
be deemed to affect the special powers of the
High Court regarding bail under section 439
of the Code of Criminal Procedure, 1973 (2 of
1974) and the High Court 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 a reference to a “Special
Court” designated under section 36AB.”
Section 36AD also being relevant is referred to:
“36AD Application of Code of Criminal
Procedure, 1973 to proceedings before
Special Court. —
(1) Save as otherwise provided in this Act,
the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974) (including the
provisions as to bails or bonds), shall apply
to the proceedings before a Special Court and
for the purposes of the said provisions, the
Special Court shall be deemed to be a Court
of Session and the person conducting the
prosecution before the Special Court, shall
be deemed to be a Public Prosecutor:
Provided that the Central Government or the
State Government may also appoint, for any
case or class or group of cases, a Special
Public Prosecutor.
31
(2) A person shall not be qualified to be
appointed as a Public Prosecutor or a Special
Public Prosecutor under this section unless
he has been in practice as an advocate for not
less than seven years, under the Union or a
State, requiring special knowledge of law.
(3) Every person appointed as a Public
Prosecutor or a Special Public Prosecutor
under this section shall be deemed to be a
Public Prosecutor within the meaning of
clause (u) of section 2 of the Code of
Criminal Procedure, 1973 (2 of 1974) and the
provisions of that Code shall have effect
accordingly.”
RELEVANT PROVISIONS OF THE CRPC
19. Section 2(a) defines “bailable offence” as offence
shown as such in the First Schedule, or which is made
bailable under any other law for the time being in force.
“Non-bailable offence” means any other offence.
‘Cognizable offence’ is defined in Section 2(c). It reads
as follows:
“2(c) " cognizable offence" means an offence
for which, and" cognizable case" means a case
in which, a police officer may, in accordance
with the First Schedule or under any other law
32
for the 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 writing to a Magistrate, with a
view to his taking action under this Code,
that some person, whether known or unknown,
has committed an offence, but does not
include a police report.
Explanation.- A report made by a police
officer in a case which discloses, after
investigation, the commission of a noncognizable offence shall be deemed to be a
complaint; and the police officer by whom
such report is made shall be deemed to be the
complainant;”
21. Section 2(h) defines investigation as
follows:
“2(h)"investigation" includes all the
proceedings under this Code for the
collection of evidence conducted by a police
officer or by any person (other than a
Magistrate) who is authorised by a Magistrate
in this behalf.”
(Emphasis supplied)
33
22. ‘Police report’ is defined in Section 2 (r) as meaning
a report forwarded by a police officer to a Magistrate under
sub-section (2) of Section 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
dealt with 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 the same provisions, but
subject to any enactment for the time
being 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 of a specific provision
to the contrary, affect any special or local
law for the time being in force, or any
special jurisdiction or power conferred, or
any special form of procedure prescribed, by
any other law for the time being in force.”
34
23. Chapter XII comes under the heading ‘Information to the
Police and their Powers to Investigate’. Section 154 inter
alia provides that every information relevant to the
commission of a cognizable offence given orally to an
officer in charge of a Police Station shall be reduced to
writing by him or under his direction, and be read over to
informant. Every such information whether given in
writing or reduced to writing as aforesaid shall be signed
by the person giving it. The substance of the same is to
be entered in a book to be kept by such officer in such form
as may be prescribed. Section 155 deals with information
as to non-cognizable cases and the manner of investigation
of such cases. No police officer can investigate a
non-cognizable offence without the order of the Magistrate
having power to try such case or commit such case for trial.
Section 156 reads as under:
“156. Police officer's power to
investigate cognizable case. –
(1) Any officer in charge of a police station
may, without the order of a Magistrate,
35
investigate any cognizable case which a Court
having jurisdiction over the local area
within the limits of such station would have
power to inquire into or try under the
provisions of Chapter XIII.
(2) No proceeding of a police officer in any
such case shall at any stage be called in
question on the ground that the case was one
which such officer was not empowered under
this section to investigate.
(3) Any Magistrate empowered under section
190 may order such an investigation as
above-mentioned”.
(Emphasis supplied)
24. Section 157 provides for Procedure for Investigation.
The limitations for the use of the statement given under
Section 161 are spelt out in Section 162. Section 173
provides for the report to be given on completion of
investigation.
25. Chapter XIV deals with the “Conditions requisite for
Initiation of Proceedings”. Section 190 reads as follows:
“190. Cognizance of offences by
Magistrates.-
36
(1) Subject to the provisions of this
Chapter, any Magistrate of the first class,
and any Magistrate of the second class
specially empowered in this behalf under
sub- section (2), may take cognizance of
any offence-
(a) upon receiving a complaint of facts
which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any
person other than a police officer, or upon
his own knowledge, that such offence has
been committed.
(2) The Chief Judicial Magistrate may
empower any Magistrate of the second class
to take cognizance under sub- section (1)
of such offences as are within his
competence to inquire into or try.”
26. Chapter XV deals with Complaints to Magistrates.
Section 202 having been referred by the learned Amicus
Curiae is extracted:
“202. Postponement of issue of
process.-(1) Any Magistrate, on receipt of
a complaint of an offence of which he is
authorised to take cognizance or which has
been made over to him under section 192,
may, if he thinks fit, postpone the issue
of process against the accused, and either
37
inquire into the case himself or direct an
investigation to be made by a police
officer or by such other person as he thinks
fit, for the purpose of deciding whether or
not there is sufficient ground for
proceeding: Provided that no such
direction for investigation shall be
made,-
(a) where it appears to the Magistrate that
the offence complained of is triable
exclusively by the Court of Session; or
(b) where the complaint has not been made
by a Court, unless the complainant and the
witnesses present (if any) have been
examined on oath under section 200.
(2) In an inquiry under sub- section (1),
the Magistrate may, if he thinks fit, take
evidence of witnesses on oath:
Provided that if it appears to the
Magistrate that the offence complained of
is triable exclusively by the Court of
Session, he shall call upon the complainant
to produce all his witnesses and examine
them on oath.
(3) If an investigation under sub- section
(1) is made by a person not being a police
officer, he shall have for that
investigation all the powers conferred by
this Code on an officer- in- charge of a
38
police 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 deals with “Issue of Process” in a case where
the Magistrate taking cognizance is of the view that there
is sufficient ground for proceeding in the matter. It may
also be relevant to notice part II of the First Schedule
to the CrPC. It must be remembered that cognizable offence
has been defined in terms of the classification of the
offences under the First Schedule. The first part of the
First Schedule deals with offences under the Indian Penal
Code. The second part, as it were, deals with
classification of offences against other laws. It reads
as follows:
39
“Classification of Offences against other laws
Offence Cognizable or
non-cognizable
Bailable or
non-bailable
By what
Court
triable
1 2 3 4
If punishable with
death,
imprisonment for
life, or
imprisonment for
more than 7 years;
Cognizable Non-bailable Court of
Session.
If punishable with
imprisonment for 3
years, and upwards
but not more than 7
years.
Cognizable Non-bailable Magistrate
of the first
class.
If punishable with
imprisonment for
less than 3 years or
with fine only.
Non-cognizable Bailable Any
Magistrate.
28. Section 4(2) of the CrPC declares that all offences
under any law other than the IPC shall be investigated,
inquired into and tried and otherwise dealt with according
to the CrPC. This is however, subject to any enactment for
the time being in force which provides otherwise in the
matter of, the manner or place of investigation inter alia
40
in regard to offences under any law other than the IPC. The
purport of Section 5 is this:
If any special law or local law for the time
being in force contemplates any special
jurisdiction or power or any special form of
procedure prescribed, unless there is something to
the contrary, to be found, it is the provisions of
the special law or the local law which would
prevail.
IMPACT OF SECTION 2 OF THE ACT
29. We have noticed that Section 2 of the Act declares that
the provisions of the Act shall be in addition to and not
in derogation of the Dangerous Drugs Act 1930 and any other
law for the time being in force. As far as Section (2) of
the Act is concerned if the attempt of the appellant is to
contend that it imports the provisions in CrPC which tends
to overwhelm, in particular, any special procedure provided
under the Act, we have no hesitation in repelling the same.
41
The purport of Section 2 appears to be that Legislature
intended to keep alive the provisions of the Dangerous Drugs
Act, 1930. It would continue to hold sway despite the
enactment of the Act. If there are any other provisions
of cognate laws dealing with the subjects dealt with by the
Act, the operation of those Acts was to be preserved. The
Act does not provide for any express repeal of any
enactment. Nothing further needs to be stated about
Section 2 and we are of the view that it does not have any
further repercussion on the issue at hand.
SECTION 32 OF THE ACT
30. Coming to Section 32 of the Act, as already noted by
us it falls in chapter IV. Inspectors are appointed by the
Central Government or the State Government from persons
possessing prescribed qualifications under a notification.
Section 21 contemplates prescribing under rules the powers
which may be exercised by the Inspectors apart from the
duties which may be performed by him inter alia.
Section 22 of the Act provides for power of search by the
42
Inspectors. They have power to inspect any premise, take
samples, powers of search, examine any record, register,
material object and seize them. The Legislature has
undoubtedly applied the provisions of the CrPC in regard
to searches under the Act. Section 23 elaborately provides
for procedure to be adopted by Inspectors.
31. Section 32 falling under section heading ‘Cognizance
of offences’ declares, in unambiguous words, that
prosecution, under Chapter IV, can be instituted only by
(1) an Inspector (2)any gazetted officer of the Central
Government or State Government authorised in writing by the
respective Government by a general or special order made
in this behalf by that Government (3) the person aggrieved
(4) a recognised consumer association whether such person
is a member of that association or not. Section 32 further
proclaims that unless it is otherwise provided, no court
inferior to a court of session shall try an offence
punishable under Chapter IV. Section 32(3) makes it clear
that nothing in chapter IV would stand in the way of the
43
person being prosecuted against under any other law for any
act or omission which constitutes an offence against this
Chapter. Section 32 was substituted by Act 22 of 2008.
Prior to the substitution it read as follows:
“32 Cognizance of offences. — (1) No
prosecution under this Chapter shall be
instituted except by an Inspector or by the
person aggrieved or by a recognised consumer
association whether such person is a member of
that association or not.
(2) No court inferior to that of a Metropolitan
Magistrate or of a Judicial Magistrate of the
first class shall try an offence punishable
under this Chapter.
(3) Nothing contained in this Chapter shall be
deemed to prevent any person from being
prosecuted under any other law for any act or
omission which constitutes an offence against
this Chapter.”
32. It will be noticed at once that Section 190 of the CrPC
also has a title ‘Cognizance of Offence by Magistrate’.
Cognizance under Section 190 is contemplated in three
different modes. They are - (1) complaints of facts
constituting such offences, (2) police report of such
44
facts, (3) upon any information received from a person other
than a Police Officer or upon a court being possessed of
knowledge about the commission of the offence. In other
words, where the court takes cognizance suo motu. A
comparison between Section 32 of the Act and 190 of the CrPC
dealing with cognizance of offences, makes it abundantly
clear that the Law Giver has provided for distinct modes
in regard to prosecuting of the offences under the general
law, viz., the CrPC and the 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 as otherwise expressly
provided by this Code or by any other law
for the time being in force, no Court of
Session shall take cognizance of any
offence as a Court of original jurisdiction
unless the case has been committed to it by
a Magistrate under this Code.”
45
34. Section 195 prohibits the Court from taking any
cognizance of the offences mentioned therein except on the
complaint in writing by the persons named therein.
35. Section 198A and Section 199 likewise permit the courts
to take cognizance only upon the complaint made by the
persons mentioned therein. Similarly, Section 199 taboos
cognizance of offence of defamation except on the complaint
made by some aggrieved person.
36. Section 36AD of the Act applies the provisions of the
CrPC except where it is otherwise provided in the Act in
regard to the proceedings before the Special Court and the
Special Court is deemed to be the Court of Sessions and the
person conducting the prosecution is deemed to be the Public
Prosecutor. No doubt, the proviso empowers the Central
Government or the State Government to appoint for any case
or class or group of cases, a Special Public Prosecutor.
37. The Scheme of the Act must be borne in mind when Section
32, which provides, inter alia, that an Inspector can set
46
the ball rolling, is considered. The Inspectors, under the
Act, are to possess the prescribed qualifications. The
qualifications bear a nexus with the performance of the
specialised duties which are to be performed under the Act.
Apparently, knowledge about the drugs and cosmetics goes
a long way in equipping them to perform their multifarious
functions. Section 22 clothing the Inspector with powers
must also be viewed thus in the context of the legislative
value judgment that a complaint is to be moved by the
Inspector under the Act and not by a Police Officer under
the CrPC. The Inspector is expected to inspect premises
where drugs and cosmetics are being manufactured, sold,
stocked, exhibited, offered for sale or distributed.
Samples are to be taken at the points of manufacturing,
selling, stocking and the points of delivery. He is expected
also, where he has reason to believe that an offence under
the Act has been committed, to search any 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
47
as may be necessary for carrying the purposes of Chapter
IV or any Rules made thereunder. The elaborate procedure
to be followed by the Inspectors is also provided by the
law.
38. Section 26 of the Drugs and Cosmetics Act, 1940, reads
as follows:
“26. Purchaser of drug or cosmetic
enabled to obtain test or analysis.—Any
person or any recognised consumer
association, whether such person is a
member of that association or not shall, on
application in the prescribed manner and on
payment of the prescribed fee, be entitled
to submit for test or analysis to a
Government Analyst any drug or cosmetic
purchased by him or it and to receive a
report of such test or analysis signed by
the Government Analyst.
Explanation.—For the purposes of this
section and section 32, “recognised
consumer association” means a voluntary
consumer association registered under the
Companies Act, 1956 or any other law for the
time being in force.”
39. A perusal of the same would indicate the role which
is assigned to any person and recognized consumer
association within the meaning of Section 32. Section 26
48
of the Drugs and Cosmetics Act, 1940 declares that on the
application, any person or any recognized consumer
association, in the prescribed manner and on payment of
prescribed fee, is entitled to submit for test or analysis,
to a Government Analyst any drug or cosmetic purchased by
the person or the association and to receive a report of
such test or analysis signed by the Government Analyst.
There can be no gainsaying that armed with a report which
reveals the commission of an offence under Chapter IV of
the Act, they can invoke Section 32 and prosecute the
offender.
40. Section 32 of the Act undoubtedly provides for taking
cognizance of the offence by the court only at the instance
of the four categories mentioned therein. They are: (a)
Inspector under the Act; (b) Any Gazetted Officer empowered
by the Central or the State Government; (c) Aggrieved
person; and (d) Voluntary Association. It is clear that the
Legislature has not included the Police Officer as a person
who can move the court. Before the matter reaches the court,
49
under Section 190 of the CrPC, ordinarily starting with the
lodging of the first information report leading to the
registration of the first information report,
investigation is carried out culminating in a report under
Section 173. The Police Report, in fact, is the Report
submitted under Section 173 of the CrPC to the court. Under
Section 190 of the CrPC, the court may take cognizance on
the basis of the police report. Such a procedure is alien
to Section 32 of the Act. In other words, it is not open
to the Police Officer to submit a report under Section 173
of the CrPC in regard to an offence under Chapter IV of the
Act under Section 32. In regard to offences contemplated
under Section 32(3), the Police Officer may have power as
per the concerned provisions. Being a special enactment,
the manner of dealing with the offences under the Act, would
be governed by the provisions of the Act. It is to be noted
that Section 32 declares that no court inferior to the Court
of Sessions shall try offence punishable under Chapter IV.
We have noticed that under Section 193 of the CrPC, no Court
of Sessions can take cognizance of any offence as a Court
50
of Original Jurisdiction unless the case has been committed
to it by a Magistrate under the CrPC. This is, undoubtedly,
subject to the law providing expressly that that Court of
Sessions may take cognizance of any offence as the Court
of Original Jurisdiction. There is no provision in the Act
which expressly authorises the special court which is the
Court of Sessions to take cognizance of the offence under
Chapter IV. This means that the provisions of Chapters XV
and XVI of the CrPC must be followed in regard to even
offences falling under Chapter IV of the Act. Starting with
Section 200 of the Act dealing with taking of cognizance
by a Magistrate on a complaint, including examination of
the witnesses produced by the complainant, the dismissal
of an unworthy complaint under Section 203 and following
the procedure under Section 202 in the case of postponement
of issue of process are all steps to be followed. It is true
that when the complaint under Section 32 is filed either
by the Inspector or by the Authorised Gazetted Officer being
public servants under Section 200, the Magistrate is
exempted from examining the complainant and witnesses.
51
41. The learned Amicus Curiae, when queried about the
procedure to be adopted when a complaint is lodged by
persons falling in Section 32(C) and (d), viz., the
aggrieved person or a voluntary association, it was
submitted that the Magistrate can, under Section 202 of the
CrPC, order an investigation by the Police Officer or any
other person. A perusal of Section 202 would show that in
regard to an offence falling under Chapter IV of the Act,
being exclusively triable, by a Court of Sessions, the
proviso to sub-Section (1) to Section 202 prohibits the
direction for investigation under Section 202. The proviso
to sub-Section (2) of Section 202 contemplates that when
an offence is exclusively triable by the Court of Sessions,
and the Magistrate proceeds under Section 202 of the CrPC,
he is duty bound to call upon the complainant to produce
all its witnesses and examine them on oath. Thus, the effect
of the two provisions in sub-Sections (1) and (2),
respectively, is as follows:
52
A Magistrate proceeding under Section 202 of the CrPC,
is subjected to two conditions:
a.Unlike in an ordinary case, meaning thereby, an
offence which is not exclusively triable by a Court
of Sessions, in a case where it is an offence
exclusively triable by a Court of Sessions, the
inquiry can be conducted only by a Magistrate
himself. It is not open to him to cause an
investigation be it by a Police Officer or any
other person.
b.In regard to the inquiry so conducted by him, he
must call upon the complainant to produce all his
witnesses and they must be examined not on the
basis of any affidavit, and not without the support
of an oath but the examination must be under an
oath. It is to be remembered that under the
provisions existing under the previous Code, an
elaborate preliminary inquiry where even an
accused had right of cross-examination of
53
witnesses, was contemplated at the hands of the
Magistrate before the committal order was passed.
This no longer survives after the amendment.
42. Offences exclusively triable by a Court of Sessions are
ordinarily pursued on the strength of a Police Report. The
Police Officer examines witnesses under Section 161 of the
CrPC, collects other evidence, arrives at a satisfaction
that indeed a case is made out to arraign a person or persons
and, accordingly, the charge-sheet is filed under Section
173. Section 207 of the Code contemplates making available
statements of all the witnesses examined among other
documents to be made available to the accused as provided
therein. This prepares the accused for the case he is likely
to be called upon to meet in the Court of Sessions.
43. As far as a complainant setting the criminal law in
motion is concerned, what is contemplated is that by the
mechanism of cognizance under Section 200 read with Section
202, culminating in the issuance of summons or warrant under
54
Section 204, there is material before the Magistrate and
the court is assured that the case is not frivolous and
wholly meritless going by a prima facie view undoubtedly
as contemplated in law at that stage regarding the
commission of a cognizance offence. Apart from this,
reassuring aspect, as in a prosecution launched under
Police Report, the accused in a trial by a Court of Sessions
to which Court a case would stand committed under Section
209, would also know beforehand the case he would have to
meet having regard to the materials which weighed with the
Magistrate and which is also made available to him under
Section 208 of the Act. In such circumstances, we need not
consider further the argument of the learned Amicus Curiae
that a direction for investigation by the Magistrate under
Section 202 would not be tabooed as the result of the
investigation by the Police Officer pursuant to a direction
would not amount to a report under Section 173. This is for
the reason that being offences exclusively triable by the
Court of Sessions, as noticed earlier, there is a bar
55
against the Magistrate directing investigation under
Section 202 by the Police Officer or otherwise.
44. The learned Amicus Curiae submitted that the
registering of an FIR under Section 154 of the CrPC in regard
to reference under Chapter IV of the Act is a futile
exercise. It is his submission that the filing of the First
Information Statement (FIS) (We notice his complaint that
even courts refer to the FIS as the complaint whereas a
complaint is what is contemplated under Section 190 of the
CrPC which is filed before a court) constitutes information
provided under Section 154 before a Station House Officer
In-Charge of Police Station which activises the Officer and
he investigates the matter with the object of filing a
report under Section 173 which is also described as
charge-sheet in a case where the Officer finds that an
offence has been committed. It is named a final report where
no basis is found for prosecution. On the strength of the
same, he invites the court concerned to take cognizance.
If under Section 32 of the Act, the Police Officer has no
56
authority to file a report, he questions the actions of the
Police Officer as one which is bound to die a natural death.
He would submit that declaring certain offences under
Section 36AC cognisable, is only to empower the arrest of
the accused.
45. It may be noticed at this juncture, that the Act does
contemplate arrest. Section 36AC clearly declares that
certain offences are non-bailable. Section 36AC(b)
proclaims that no person accused of the offences mentioned
therein shall be released on bail or on his own bond unless
the Public Prosecutor has been given an opportunity to
oppose the application of such release and where the Public
Prosecutor opposes, the court is satisfied that there are
reasonable ground for believing that he is not guilty of
such offence and that he is not likely to commit any offence
while on bail. This limitation on the grant of bail is in
addition to the limitations under the CrPC or and under any
other law for the time being in force on grant of bail. The
special powers, however, of the High Court regarding the
57
grant of bail under Section 439 of the CrPC, is preserved
as found therein.
46. The argument of Ms. Pinky Anand, learned Additional
Solicitor General is that having regard to the fact that
certain offences under Section 36AC have been declared
cognizable, the powers of the police under the CrPC
including the duty to register a FIR under Section 154
cannot be obviated. The only prohibition is against the
Police Officer lodging the charge sheet. There can be no
taboo on the Police Officer registering the FIR and even
conducting the investigation. This brings up another issue,
who is the person who can arrest a person accused of an
offence in Chapter IV of the Act? Is it open to a Police
Officer acting under the CrPC to arrest such person? Is the
Inspector under the Act empowered to arrest a person accused
of an offence under Chapter IV of the Act? Before we deal
with this aspect, we may look at how this Court spoke in
the past in the matter of taking cognizance among other
aspects.
58
A LOOK AT HOW THIS COURT SPOKE IN THE PAST
47. In Jeewan Kumar Raut and another v. Central Bureau of
Investigation3, the case arose under the Transplantation of
Human Organs Act, 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 Act except on a complaint
made by—
(a) the Appropriate Authority concerned, or
any officer authorised in this behalf by the
Central Government or the State Government
or, as the case may be, the Appropriate
Authority; or
(b) a person who has given notice of not less
than sixty days, in such manner as may be
prescribed, to the Appropriate Authority
concerned, of the alleged offence and of his
intention to make a complaint to the court.
(2) No court other than that of a
Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any
offence punishable under this Act.
(3) Where a complaint has been made under
clause (b) of sub-section (1), the court may,
on demand by such person, direct the
3 (2009) 7 SCC 526
59
Appropriate Authority to make available
copies of the relevant records in its
possession to such person.”
48. The appellants were Medical Practitioners. An FIR was
registered against them under Section 420 of the IPC and
Sections 18 and 19 of the TOHO Act at the Police Station.
The investigation was transferred to the CBI, respondent
in the case. The CBI registered another FIR which included
Sections 18 and 19 of the TOHO Act. Appellant no.2 was
arrested and produced before the Magistrate. Appellant no.1
surrendered. The respondent filed a complaint under Section
22 of TOHO Act pointing out that the period of 90 days from
the detention expired on 07.05.2008, Appellant no.2 filed
an application for grant 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 a special Act. It deals with
the subjects mentioned therein, viz.
offences relating to removal of human organs,
etc. Having regard to the importance of the
60
subject only, enactment of the said
regulatory statute was imperative.
20. TOHO provides for appointment of an
appropriate authority to deal with the
matters specified in sub-section (3) of
Section 13 thereof. By reason of the
aforementioned provision, an appropriate
authority has specifically been authorised
inter alia to investigate any complaint of
the breach of any of the provisions of TOHO
or any of the rules made thereunder and take
appropriate action. The appropriate
authority, subject to exceptions provided
for in TOHO, thus, is only authorised to
investigate cases of breach of any of the
provisions thereof, whether penal or
otherwise.
21. Ordinarily, any person can set the
criminal law in motion. Parliament and the
State Legislatures, however, keeping in view
the sensitivity and/or importance of the
subject, have carved out specific areas where
violations of any of the provisions of a
special statute like TOHO can be dealt with
only by the authorities specified therein.
The FIR lodged before the officer in charge
of Gurgaon Police Station was by way of
information. It disclosed not only
commission of an offence under TOHO but also
under various provisions of the Penal Code.
The officer in charge of the police station,
however, was not authorised by the
61
appropriate Government to deal with the
matter in relation to TOHO; but, the
respondent was. In that view of the matter,
the investigation of the said complaint was
handed over to it.
xxx xxx xxx xxx
23. TOHO being a special Act and the matter
relating to dealing with offences thereunder
having been regulated by reason of the
provisions thereof, there cannot be any
manner of doubt whatsoever 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 else could do
it. For the aforementioned reasons, the
officer in charge of Gurgaon Police Station
had no other option but to hand over the
investigation to the appropriate authority.
xxx xxx xxx xxx
25. Section 22 of TOHO prohibits taking of
cognizance except on a complaint made by an
appropriate authority or the person who had
made a complaint earlier to it as laid down
therein. The respondent, although, has all
the powers of an investigating agency, it
expressly has been statutorily prohibited
from filing a police report. It could file a
complaint petition only as an appropriate
authority so as to comply with the
62
requirements contained in Section 22 of TOHO.
If by reason of the provisions of TOHO, filing
of a police report by necessary implication
is necessarily forbidden, the question of its
submitting a 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.
xxx xxx xxx xxx
28. To put it differently, upon completion
of the investigation, an authorised officer
could only file a complaint and not a police
report, as a specific bar has been created by
Parliament. In that view of the matter, the
police report being not a complaint and vice
versa, it was obligatory on the part of the
respondent to choose the said method invoking
the jurisdiction of the Magistrate concerned
for taking cognizance of the offence only in
the manner laid down therein and not by any
other mode. The procedure laid down in TOHO,
thus, would permit the respondent to file a
complaint and not a report which course of
action could have been taken recourse to but
for the special provisions contained in
Section 22 of TOHO.”
(Emphasis supplied)
63
49. We may also notice the hope expressed by the Court for
Parliamentary intervention expressing doubt about the
absence of power to arrest with the Officer who is
authorised to carry out the investigation:
“37. In the present case, however, the
respondent having specially been empowered
both under the 1946 Act as also under the Code
to carry out investigation and file a
charge-sheet is precluded from doing so only
by reason of Section 22 of TOHO. It is
doubtful as to whether in the event of
authorisation of an officer of the Department
to carry out investigation on a complaint
made by a third party, he would be entitled
to arrest the accused and carry on
investigation as if he is a police officer.
We hope that Parliament would take
appropriate measures to suitably amend the
law in the near future.”
50. In Jamiruddin Ansari v. Central Bureau of
Investigation and another 4 , the case arose under the
Maharashtra Control of Organized Crime Act, 1999 (MCOCA).
A private complaint was filed against certain accused
persons by a person. The Special Judge ordered the
4 (2009) 6 SCC 316
64
Commissioner of Police to investigate into the complaint
under Section 156(3) of the CrPC. The State took the stand
in a Writ Petition challenging the said order that in view
of Sections 23(2) of the MCOCA sans previous sanction 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) A Special Court may take
cognizance of any offence without the accused
being committed to it for trial, upon
receiving a complaint of facts which
constitute such offence or upon a police
report of such facts.
(2)-(3)***
xxx xxx xxx xxx
“23. Cognizance of, and investigation
into, an offence.—(1) Notwithstanding
anything contained in the Code,—
(a) no information about the
commission of an offence of organised
crime under this Act, shall be recorded
by a police officer without the prior
65
approval of the police officer not below
the rank of the Deputy Inspector General
of Police;
(b) no investigation of an offence
under the provisions of this Act shall
be carried out by a police officer below
the rank of the Deputy Superintendent of
Police.
(2) No Special Court shall take cognizance of
any offence under this Act without the
previous sanction of the police officer not
below the rank of Additional Director General
of Police.”
51. The Full Bench which was constituted to hear the
matter, by a majority, took the view that a private
complaint under Section 9, was not 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 of Section 25 of MCOCA, the
provisions of the said Act would have an
overriding effect over the provisions of the
Criminal Procedure Code and the learned
Special Judge would not, therefore, be
entitled to invoke the provisions of Section
156(3) CrPC for ordering a special inquiry on
a private complaint and taking cognizance
66
thereupon, without traversing the route
indicated in Section 23 of MCOCA. In other
words, even on a private complaint about the
commission of an offence of organised crime
under MCOCA cognizance cannot be taken by the
Special Judge without due compliance with
sub-section (1) of Section 23, which starts
with a non obstante clause.
68. As indicated hereinabove, the provisions
of Section 23 are the safeguards provided
against the invocation of the provisions of
the Act which are extremely stringent and far
removed from the provisions of the general
criminal law. If, as submitted on behalf of
some of the respondents, it is accepted that
a private complaint under Section 9(1) is not
subject to the rigours of Section 23, then the
very purpose of introducing such safeguards
lose their very raison d'être. At the same
time, since the filing of a private complaint
is also contemplated under Section 9(1)
of MCOCA, for it to be entertained it has also
to be subject to the rigours of Section 23.
Accordingly, in view of the bar imposed under
sub-section (2) of Section 23 of the Act, the
learned Special Judge is precluded from
taking cognizance on a private complaint upon
a separate inquiry under Section 156(3) CrPC.
The bar of Section 23(2) continues to remain
in respect of complaints, either of a private
nature or on a police report.”
67
52. Thereafter, the Court proceeded to harmonise the
provisions by holding as follows:
“69. In order to give a harmonious
construction to the provisions of Section
9(1) and Section 23 of MCOCA, upon receipt of
such private complaint the learned Special
Judge has to forward the same to the officer
indicated in clause (a) of sub-section (1) of
Section 23 to have an inquiry conducted into
the complaint by a police officer indicated
in clause (b) of sub-section (1) and only
thereafter take cognizance of the offence
complained of, if sanction is accorded to the
Special Court to take cognizance of such
offence under sub-section (2) of Section 23.”
53. It is pertinent to notice that in the said enactment,
under Section 23, there was a taboo against recording of
any information under the Act without the prior approval
of the Police Officer not below the rank of the Deputy
Inspector General of Police. This must be understood as
supplanting the provisions of Section 154 of the CrPC to
the extent that the modification was spelt out. Not only
could the information not be so recorded without the prior
68
approval, investigation also cannot be carried out except
by a Police Officer of the rank of Deputy Superintendent
of Police and above. This is apart from the prohibition
against taking cognizance of an offence under the said Act
without the previous sanction of the Police Officer not
below the rank of Additional Director General of Police.
54. The decision of this Court in H.N. Rishbud and Inder
Singh v. State of Delhi, ETC.5 dealt with a case under the
Prevention of Corruption Act, 1947. Investigation in the
said case was undertaken by an Officer without
authorisation by the Magistrate under Section 5(4) of the
Prevention of Corruption Act, 1947. Cognizance was taken
and the trial went on. The accused thereupon pointed out
the flaw in the investigation. It is in the said
circumstances, this Court proceeded to deal with what is
investigation, inter alia:
“8. … Thus, under the Code investigation
consists generally of the following steps:
5 AIR 1955 SC 196
69
(1) Proceeding to the spot, (2) Ascertainment
of the facts and circumstances of the case,
(3) Discovery and arrest of the suspected
offender, (4) Collection of evidence
relating to the commission of the offence
which may consist of (a) the examination of
various persons (including the accused) and
the reduction of their statements into
writing, if the officer thinks fit, (b) the
search of places or seizure of things
considered necessary for the investigation
and to be produced at the trial, and (5)
Formation of the opinion as to whether on the
material collected there is a case to place
the accused before a Magistrate for trial and
if so taking the necessary steps for the same
by the filing of a charge-sheet under Section
173. …”
55. No doubt, the Court went on to take the view that the
invalidity of the investigation, if brought to the
knowledge of the Court at a sufficiently early stage,
remedial steps may be taken to get the illegality cured.
However, it was found that if cognizance is taken on a Police
Report vitiated by the breach of a mandatory provision
relating to investigation, the result of the trial cannot
be affected unless it has resulted in a miscarriage of
justice. It is pertinent to note that the Court made the
following observations as well:
70
“9. … Here we are not concerned with the
effect of the breach of a mandatory provision
regulating the competence or procedure of the
Court as regards cognizance or trial. It is
only with reference to such a breach that the
question as to whether it constitutes an
illegality vitiating the proceedings or a
mere irregularity arises.“
(Emphasis supplied)
56. In Institute of Chartered Accountants of India v. Vimal
Kumar Surana and another 6 , the matter arose under the
Chartered Accounts Act, 1949. The respondent, who had
passed the examination of Chartered Accountant but was not
a member of the appellant-Institute, was sought to be
prosecuted on the basis that he had represented before the
Tax Authorities on the basis of the Power of Attorney or
as Legal Representative and was submitting documents by
preparing forged seals. The Authorised Representative of
the appellant-Institute submitted a complaint to the Police
Officer. After investigation, the Police filed a challan
of offences under the IPC and Sections 24 and 26 of the
71
Chartered Accountants Act. The same was successfully
questioned by the respondent on the basis that it fell foul
of the mandate of Section 28 of the Chartered Accounts Act.
57. Section 28 of the Chartered Accountants Act, 1949 reads
as follows:
“28. Sanction to prosecute
No person shall be prosecuted under this
Act except on a complaint made by or under the
order of the Council or of the Central
Government.”
58. This Court went on to notice the line of decisions
rendered by this Court which permitted prosecution of
distinct offences by way of dealing with the argument based
on prohibition against prosecution and punishment for the
same offence flowing from Article 20(2) of the Constitution
of India. We notice paragraphs 20,21 and 41 of Vimal Kumar
Surana and another (supra):
6 (2011) 1 SCC 534
72
“20. In other words, if the particular act
of a member of the Institute or a non-member
or a company results in contravention of the
provisions contained in Section 24 or
sub-section (1) of Sections 24-A, 25 or 26 and
such act also amounts to criminal misconduct
which is defined as an offence under IPC, then
a complaint can be filed by or under the order
of the Council or of the Central Government
under Section 28, which may ultimately result
in imposition of the punishment prescribed
under Section 24 or sub-section (2) of
Sections 24-A, 25 or 26 and such member or
non-member or company can also be prosecuted
for any identified offence under IPC.
21. The object underlying the prohibition
contained in Section 28 is to protect the
persons engaged in profession of Chartered
Accountants against false and untenable
complaints from dissatisfied litigants and
others. However, there is nothing in the
language of the provisions contained in
Chapter VII from which it can be inferred that
Parliament wanted to confer immunity upon the
members and non-members from prosecution and
punishment if the action of such member or
non-member amounts to an offence under IPC or
any other law.
xxx xxx xxx xxx
41. It is also apposite to mention that
except the provision contained in Section 28
73
against the prosecution of a person, who is
alleged to have acted in contravention of
sub-section (1) of Sections 24, 24-A, 25 or
26 otherwise then on a complaint made by 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 procedure prescribed in CrPC has to be
followed for inquiry, investigation and
trial of the complaint which may be filed for
contravention of any of the provisions
contained in Chapter VII of the
Act—Section 4 CrPC.”
59. In State (NCT of Delhi) v. Sanjay, ETC., ETC.7, the
matter arose under the Mines and Minerals Development and
Regulation Act, 1957 (MMDR Act) as also under Sections 378
and 379 of the IPC and the question which arose for decision
was whether the provisions of Sections 21 and 22, apart from
other provisions of the MMDR Act, operated as a bar to
prosecution for offences under Section 379/114 and other
provisions of the IPC. Section 21 of the said Act prescribes
7 (2014) 9 SCC 772
74
various penalties. Section 22 deals with cognizance of
offences and it reads as follows:
“22.Cognizance of offences.—No court
shall take cognizance of any offence
punishable under this Act or any Rules made
thereunder except upon complaint in writing
made by a person authorised in this behalf by
the Central Government or the State
Government.”
60. The Court was dealing with appeals from judgments of
High Courts of Delhi and Gujarat. The registration of the
cases was challenged on the basis of Section 22 of the MMDR
Act. Paragraphs 8, 9, 10 and 11 reveals the questions which
arose and how it came to be dealt with by the High Court:
“8. Criminal Appeal No. 499 of 2011, as
stated above, arose out of the order
[Sanjay v. State, (2009) 109 DRJ 594] passed
by the Delhi High Court. The Delhi High Court
formulated three issues for consideration:
(1) Whether the police could have
registered an FIR in the case;
(2) Whether a cognizance can be taken by
the Magistrate concerned on the basis of
police report; and
75
(3) Whether a case of theft was made out
for permitting registration of an FIR
under Sections 379/411 of the Penal Code.
9. The Delhi High Court after referring
various provisions on the MMDR Act vis-à-vis
the Code of Criminal Procedure disposed of
the application directing the respondent to
amend the FIR, which was registered, by
converting the offence mentioned therein
under Sections 379/411/120-B/34 IPC to
Section 21 of the MMDR Act. The High Court in
para 18 of the impugned order held as under:
“18. In view of the aforesaid and taking
into consideration the provisions
contained under Section 21(6) of the said
Act I hold that:
(i) The offence under the said Act
being cognizable offence, the police
could have registered an FIR in this
case;
(ii) However, so far as taking
cognizance of an offence under the said
Act is concerned, it can be taken by the
Magistrate only on the basis of a
complaint filed by an authorised
officer, which may be filed along with
the police report;
(iii) Since the offence of mining of
sand without permission is punishable
under Section 21 of the said Act, the
question of the said offence being an
offence under Section 379 IPC does not
76
arise because the said Act makes illegal
mining as an offence only when there is
no permit/licence for such extraction
and a complaint in this regard is filed
by an authorised officer.”
10. On the other hand the Gujarat High
Court formulated the following questions for
consideration:
(1) Whether Section 22 of the Act would
debar even lodging an FIR before the police
with respect to the offences punishable
under the said Act and the Rules made
thereunder?
(2) In case such FIRs are not debarred
and the police are permitted to
investigate, can the Magistrate concerned
take cognizance of the offences on a police
report?
(3) What would be the effect on the
offences punishable under the Penal Code
in view of the provisions contained in the
Act?
11. The Gujarat High Court came to the
following conclusion:
(i) The offence under the said Act being
cognizable offence, the police could have
registered an FIR in this case;
(ii) However, so far as taking
cognizance of offence under the said Act
is concerned, it can be taken by the
Magistrate only on the basis of a complaint
77
filed by an authorised officer, which may
be filed along with the police report;
(iii) Since the offence of mining of sand
without permission is punishable under
Section 21 of the said Act, the question
of said offence being an offence under
Section 379 IPC does not arise because the
said Act makes illegal mining as an offence
only when there is no permit/licence for
such extraction and a complaint in this
regard is filed by an authorised officer.”
61. The Gujarat High Court also held that Section 22 did
not prohibit registering an FIR by the Police in regard to
offence under the MMDR Act and the Rules thereunder.
However, it was not open to the Magistrate to take
cognizance. This Court, after referring to the decisions
in Sanjay, ETC., ETC. (supra), held as follows:
“69. Considering the principles of
interpretation and the wordings used in
Section 22, in our considered opinion, the
provision is not a complete and absolute bar
for taking action by the police for illegal
and dishonestly committing theft of minerals
including sand from the riverbed. The Court
shall take judicial notice of the fact that
over the years rivers in India have been
affected by the alarming rate of unrestricted
78
sand mining which is damaging the ecosystem
of the rivers and safety of bridges. It also
weakens riverbeds, fish breeding and
destroys the natural habitat of many
organisms. If these illegal activities are
not stopped by the State and the police
authorities of the State, it will cause
serious repercussions as mentioned
hereinabove. It will not only change the
river hydrology but also will deplete the
groundwater levels.
70. There cannot be any dispute with
regard to restrictions imposed under the MMDR
Act and remedy provided therein. In any case,
where there is a mining activity by any person
in contravention of the provisions of Section
4 and other sections of the Act, the officer
empowered and authorised under the Act shall
exercise all the powers including making a
complaint before the Jurisdictional
Magistrate. It is also not in dispute that the
Magistrate shall in such cases take
cognizance on the basis of the complaint
filed before it by a duly authorised officer.
In case of breach and violation of Section 4
and other provisions of the Act, the police
officer cannot insist the Magistrate for
taking cognizance under the Act on the basis
of the record submitted by the police
alleging contravention of the said Act. In
other words, the prohibition contained in
Section 22 of the Act against prosecution of
a person except on a complaint made by the
79
officer is attracted only when such person is
sought to be prosecuted for contravention of
Section 4 of the Act and not for any act or
omission which constitutes an offence under
the Penal Code.
71. However, there may be a situation
where a person without any lease or licence
or any authority enters into river and
extracts sand, gravel and other minerals and
remove or transport those minerals in a
clandestine manner with an intent to remove
dishonestly those minerals from the
possession of the State, is liable to be
punished for committing such offence under
Sections 378 and 379 of the Penal Code.
72. From a close reading of the provisions
of the MMDR Act and the offence defined under
Section 378 IPC, it is manifest that the
ingredients constituting the offence are
different. The contravention of terms and
conditions of mining lease or doing mining
activity in violation of Section 4 of the Act
is an offence punishable under Section 21 of
the MMDR Act, whereas dishonestly removing
sand, gravel and other minerals from the
river, which is the property of the State, out
of the State's possession without the
consent, constitute an offence of theft.
Hence, merely because initiation of
proceeding for commission of an offence under
the MMDR Act on the basis of complaint cannot
and shall not debar the police from taking
80
action against persons for committing theft
of sand and minerals in the manner mentioned
above by exercising power under the Code of
Criminal Procedure and submit a report before
the Magistrate for taking cognizance against
such persons. In other words, in a case where
there is a theft of sand and gravel from the
government land, the police can register a
case, investigate the same and submit a final
report under Section 173 CrPC before a
Magistrate having jurisdiction for the
purpose of taking cognizance as provided in
Section 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 Code of Criminal Procedure and the Penal
Code, we are of the definite opinion that the
ingredients constituting the offence under
the MMDR Act and the ingredients of
dishonestly removing sand and gravel from the
riverbeds without consent, which is the
property of the State, is a distinct offence
under IPC. Hence, for the commission of
offence under Section 378 IPC, on receipt of
the police report, the Magistrate having
jurisdiction can take cognizance of the said
offence without awaiting the receipt of
complaint that may be filed by the authorised
officer for taking cognizance in respect of
violation of various provisions of the MMDR
Act. Consequently, the contrary view taken by
81
the different High Courts cannot be sustained
in law and, therefore, overruled.
Consequently, these criminal appeals are
disposed of with a direction to the
Magistrates concerned to proceed
accordingly.”
(Emphasis supplied)
62. Chapter XII of the CrPC carries the chapter heading
“Information to the Police and their Powers to
Investigate”. The Chapter starts off with Section 154
carrying Section heading “Information in cognizable
cases”. It declares that every information relating to a
cognizable offence given to an officer in charge of the
police station, if given orally, is to be reduced to writing
and whether given in writing or reduced to writing it is
to be signed by the informant. The key elements of Section
154 CrPC can be noticed. Information in relation to a
cognizable offence reaching the officer in charge of a
police station which is ordinarily understood as first
information statement concerning cognizable offences sets
the ball rolling so far as the police officer, in charge
of a police station is concerned. The next provision to
82
notice in the Chapter is Section 156. It provides that any
officer in charge of a police station may without the order
from a Magistrate investigate any cognizable offence within
which a court, having jurisdiction over a local area within
the limits of such station, would have the power to enquire
into or try under the provisions of Chapter XIII. In fact,
Section 177 of the CrPC, which is the first Section in
Chapter XIII dealing with jurisdiction of Criminal Courts
Inquiries and Trial, proclaims that every offence shall
ordinarily be enquired into and tried by a court within
whose jurisdiction, the offence was committed. Thus,
ordinarily, it is the Police Officer, within whose
jurisdiction the cognizable offence is committed, would
have the jurisdiction to investigate that offence. Section
178 onwards provide for the exceptions to Section 177 and
we need not probe this matter further. Sub-section (2)
declares the proceedings of police officer in a case of
cognizable offence shall not in any stage be called in
question on the ground that the case was one which he was
not empowered to investigate under the provision. Lastly,
83
sub-section (3) provides that any Magistrate who is
empowered under Section 190 may order 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, from
information received or otherwise, an
officer in charge of a police station has
reason to suspect the commission of an
offence which he is empowered under section
156 to investigate, he shall forthwith send
a report of the same to a Magistrate empowered
to take cognizance of such offence upon a
police report and shall proceed in person, or
shall depute one of his subordinate officers
not being below such rank as the State
Government may, by general or special order,
prescribe in this behalf, to proceed, to the
spot, to investigate the facts and
circumstances of the case, and, if necessary,
to take measures for the discovery and arrest
of the offender; Provided that-
(a) when information as to the
commission of any such offence is
given against any person by name and
the case is not of a serious nature,
the officer in charge of a police
station need not proceed in person
or depute a subordinate officer to
make an investigation on the spot;
84
(b) if it appears to the officer in
charge of a police station that
there is no sufficient ground for
entering on an investigation, he
shall not investigate the case.
(2) In each of the cases mentioned in clauses
(a) and (b) of the proviso to sub-section (1),
the officer in charge of the police station
shall state in his report his reasons for not
fully complying with the requirements of that
sub- section, and, in the case mentioned in
clause (b) of the said proviso, the officer
shall also forthwith notify to the informant,
if any, in such manner as may be prescribed
by the State Government, the fact that he will
not investigate the case or cause it to be
investigated.”
63. It comes 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 a
police station may from information received have reason
to suspect the commission of an offence. He may also have
reason to suspect the commission of cognizable offence not
on the basis of any information but otherwise. (ii) As far
as information is concerned, it is clearly relatable to the
85
information which has been provided to him within the
meaning of Section 154. Cases where he acts on his own
knowledge would be covered by the expression otherwise.
(iii) The offences must be an offence which he is empowered
under Section 156 to investigate. We have noticed that a
police officer is empowered to investigate a cognizable
offence without an order of the Magistrate. As far as
non-cognizable offence is concerned, he cannot investigate
such offence without the order of the Magistrate having
power to try or commit the case for trial. (iv) However,
a police officer who undertakes to investigate the matter
is obliged to forthwith send a report of the same to the
Magistrate empowered to take cognizance of an offence upon
a police report. It is at once relevant to notice in the
facts of this case that this indispensable element is not
present. This is for the reason that under Section 32 of
the Act, a Magistrate is not competent to take cognizance
of the offences under Chapter IV of the Act upon a police
report. At this juncture, we may notice Section 158 CrPC.
It speaks about the manner of sending the report to the
86
Magistrate under Section 157. It is a matter governed by
a general or special order issued by the State Government.
Quite clearly even Section 158 cannot apply in the case of
a cognizable offence falling under Chapter IV of the Act
for the reasons which we have adverted to. Section 159
enables the Magistrate on receiving such report to direct
investigation or if he thinks fit at once to proceed or
depute any Magistrate subordinate to him to proceed, to hold
a preliminary inquiry or otherwise to dispose of the case
in the manner provided in the Code. It is clear that the
purpose of Section 157 is to hold the police officer
accountable to keep informed the Magistrate. It acts as an
assurance that the reports are not tampered, and that the
rights of the accused are sought to be secured. The purport
of Section 159 is also to enable the Magistrate to exercise
control over the investigation. All these aspects are
irrelevant and out of bounds both for the police officer
and the Magistrate in respect of an offence falling under
chapter IV of the Act.
87
64. Section 160 refers to investigation under the Chapter,
viz., Chapter XII. Section 161 speaks about the examination
of witnesses and how the statements are to be reduced to
writing. Again, Section 161 speaks about an investigation
carried out under Chapter XII. The use to which statements
under Section 161 can be put and the limitation on the same
are spelt out in Section 162 CrPC. Reverting back to
Section 157, we have taken note of the requirement about
the police officer reporting to the Magistrate about the
reason to suspect entertained by the police officer about
the commission of a cognizable offence on which the
Magistrate is to take cognizance on a report. Be it
remembered that the Magistrate can take cognizance under
Section 190 of the CrPC on a complaint, a police report or
information received from any person other than a police
officer or otherwise. Section 157 appears to contemplate
information received under Section 154 or knowledge gained
otherwise about the commission of a cognizance offence
clothing the police officer with the power to investigate
88
leading to the sending of the report to the Magistrate being
confined to cases where officer intends to send the police
report which has been defined as the report under Section
173 of the CrPC. In regard to taking cognizance under
Section 32 of the Act, it is unambiguously clear that there
is no place for a police report within the meaning of Section
173 of the CrPC in regard to offences falling under Chapter
IV of the Act. Section 157 contemplates that the Officer
proceeding either by himself or through his subordinate
Officer to investigate the facts and circumstances, and if
necessary, to take measures for the discovery and the arrest
of the offender. But on reading the provisions, we gather
the unmistakable impression that the law giver has
empowered the police officer to investigate in the case of
a cognizable offence without any order of the Magistrate
where he ultimately in an appropriate case wishes the Court
to take cognizance based on the material he gathers and
transmits a police report. If this impression of ours is
not flawed, an inevitable corollary would be that in the
case of offence under Chapter IV of the Act though it be
89
cognizable, a police officer would not have the power to
investigate the matter. Section 169 speaks about the duty
to release a person in custody if it is found on
investigation that there is no sufficient evidence or
reasonable ground of suspicion to justify forwarding such
person to the Magistrate. Section 170 deals with cases
where an officer conducting investigation finds sufficient
evidence or reasonable ground and the accused is forwarded
to the Magistrate empowered to take cognizance of the
offence upon a report. Again, the cardinal requirement for
the officer to invoke Section 170 is availability of power
with the Magistrate to take cognizance upon a police report.
This key requirement is absent in the case of an offence
falling under Chapter IV of the Act. The link therefore
snaps. Section 173 speaks about the report on completion
of the investigation for the police officer. Section 173
(5) is to be read with Section 170, that is to say, in a
case where there is sufficient material for prosecuting the
concerned person, the documents and the statements of
witnesses are to be forwarded to the Magistrate as provided
90
therein. We have already noted Section 190 of the CrPC.
Sections 154, 156, 157, 158, 159, 160, 161, 170 and 173 are
part of a scheme of provisions geared to empower and require
investigation of cognisable offences which are to culminate
in a police report within the meaning of Section 190(b) of
the CrPC. However, what is applicable in respect of
offences under Chapter IV of the Act is not 190 of the CrPC
but Section 32 of the Act which does not permit cognizance
being taken on a police report. The entire exercise of a
police officer proceeding on a basis of a FIR becomes
futile. It is not contemplated in law. It therefore
becomes unauthorised.
IMPACT OF LALITA KUMARI V. GOVERNMENT OF UTTAR PRADESH AND
OTHERS8
65. In the said case, a Constitution Bench of this Court
has held that registration of an FIR is mandatory under
Section 154 of the CrPC, if the information discloses
commission of a cognizable offence and no preliminary
8 (2014) 2 SCC 1
91
inquiry is permissible in such a situation. It was further
held that a preliminary inquiry may be conducted only to
ascertain whether a cognizable offence is disclosed or not,
if the information received does not disclose a cognizable
offence but indicates the need for such an inquiry. The
Court has also indicated certain cases where a preliminary
inquiry may be conducted, depending on the facts and
circumstances of each case. They include matrimonial
disputes, commercial offences and cases where there is
abnormal delay/latches. This Court also held that the
aforesaid were not exhaustive of all conditions which may
warrant a preliminary inquiry.
66. We would think that this Court was not, in the said
case, considering a case under the Act or cases similar to
those under the Act, and we would think that having regard
to the discussion which we have made and on a conspectus
of the provisions of the CrPC and Section 32 of the Act,
the principle laid down in Lalita Kumari (supra) is not
attracted when an information is made before a Police
92
Officer making out the commission of an offence under
Chapter IV of the Act mandating a registration of a FIR under
Section 154 of the CrPC.
DUTY OF POLICE OFFICER UNDER SECTION 154 OF THE CRPC
IRRESPECTIVE OF IMPACT OF TERRITORIAL JURISDICTION
67. In State of A.P. v. Punati Ramulu and others9 , the
Police Constable had refused to record the complaint on the
ground that the said Police Station had no territorial
jurisdiction over the place of crime. It was held as
follows:
“4. … It was certainly a dereliction of
duty on the part of the constable because any
lack of territorial jurisdiction, could not
have prevented the constable from recording
information about the cognizable offence and
forwarding the same to the police station
having jurisdiction over the area in which
the crime was said to have been committed.”
(Emphasis supplied)
9 AIR 1993 SC 2644
93
68. In Satvinder Kaur v. State (Govt. of NCT of Delhi) and
another10, this Court held, inter alia, as follows:
“10. It is true that territorial
jurisdiction also is prescribed under
sub-section (1) to the extent that the
officer can investigate any cognizable case
which a court having jurisdiction over the
local area within the limits of such police
station would have power to enquire into or
try under the provisions of Chapter XIII.
However, sub-section (2) makes the position
clear by providing that no proceeding of a
police officer in any such case shall at any
stage be called in question on the ground that
the case was one which such officer was not
empowered to investigate. After
investigation is completed, the result of
such investigation is required to be
submitted as provided under Sections 168, 169
and 170. Section 170 specifically provides
that if, upon an investigation, it appears to
the officer in charge of the police station
that there is sufficient evidence or
reasonable ground of suspicion to justify the
forwarding of the accused to a Magistrate,
such officer shall forward the accused under
custody to a Magistrate empowered to take
cognizance of the offence upon a police
report and to try the accused or commit for
trial. Further, if the investigating officer
arrives at the conclusion that the crime was
not committed within the territorial
jurisdiction of the police station, then FIR
can be forwarded to the police station having
10 AIR 1999 SC 3596
94
jurisdiction over the area in which the crime
is committed. But this would not mean that in
a case which requires investigation, the
police officer can refuse to record the FIR
and/or investigate it.”
(Emphasis supplied)
69. This was a case where the FIR had been quashed by the
High Court under Section 482 CrPC on the ground that the
Police Officer at Delhi was not having territorial
jurisdiction. It was a case under Section 498A of the IPC.
This Court set aside the judgment of the High Court quashing
the FIR, also taking note of Section 156(2) of the IPC.
70. There is practice of registering an FIR as a Zero FIR,
when the Police Station at which FIR is registered, does
not have territorial jurisdiction, and then, it is made over
to the Police Station which has jurisdiction in the matter.
Could it, therefore, be said that when information is given
to a Police Officer, within the meaning of Section 154 of
the CrPC, in relation to the commission of a cognizable
offence under Chapter IV of the Act, the Police Officer must
register a FIR and then make it over to the Inspector.
95
71. It is to be noted that the duty to register FIR, when
information is received about a cognizable offence falling
under Chapter IV of the Act, it is clear from the very
inception that a Police Officer has no jurisdiction to
investigate the offence. It is not a case of absence of
territorial jurisdiction. No doubt, if it is a case of
another Police Officer being empowered to investigate the
offence in terms of powers under CrPC, the law is, as laid
down, that there is the obligation to register an FIR and
then make it over to the Police Station which has
jurisdiction. In fact, a conflict, when in the context of
Sections 178 to 185 of the CrPC, which constitute exceptions
to the general principle laid down in Section 177 of the
CrPC, the High Court is to decide the dispute, as is provided
in Section 186 of the CrPC. If an information is relatable
only to cognizable offences under Chapter IV of the Act,
we would think that the Police Officer would be out of bounds
and he has no role to play in the investigation as neither
he nor any other Police Officer has any role to play in the
96
investigation. His duty lies in referring the complainant
to the concerned Drugs Inspector. If he is in receipt of
information about an offence under Chapter IV of the Act,
he must promptly notify the concerned Drugs Inspector.
POWER TO ARREST UNDER THE ACT
72. One of the reliefs which is sought by the first
respondent-writ petitioner was a direction not to arrest
him. The Act does not expressly confer 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
arrest is contemplated under the Act. Conditions have been
imposed for grant of bail as enacted in Section 36AC which
we have already referred. If the Inspector under the Act
has no authority to carry out the arrest, there cannot be
a situation where arrest is in the contemplation of the law
giver and yet there is no person who can effectuate that
arrest.
97
74. The further question which would therefore arise is,
the impact of finding that arrest can be effected by a police
officer in respect of a cognizable offence under Chapter
IV of the Act on the need to register an FIR under Section
154. We have already noticed that under Section 157 of the
Act making a report to the Magistrate who can take
cognizance of a police report renders the provision as such
inapplicable under Chapter IV of the Act.
75. The question would arise if investigation is not
permissible for a police officer under Section 157 and that
he cannot give a report under the said provision, can he
be empowered to carry out the arrest? Is the scheme of
arrest under Section 41 of the Act interlinked with the
power of arrest under Section 157? We heard the learned
Counsel for the petitioner and the learned Amicus Curiae
on this point and have considered their Written Submissions
as well.
98
PROVISIONS AS TO ARREST IN THE CONSTITUTION OF INDIA –
ARTICLE 22(1) AND ARTICLE 22(2).
76. Article 22(1) and Article 22(2) of the Constitution of
India, reads as follows:
“22. Protection against arrest and detention
in certain cases
(1) No person who is arrested shall be
detained in custody without being informed,
as soon as may be, of the grounds for such
arrest nor 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 be produced before
the nearest magistrate within a period of
twenty four hours of such arrest excluding
the time necessary for the journey from the
place of arrest to the court of the
magistrate and no such person shall be
detained in custody beyond the said period
without the authority of a magistrate.”
77. At this juncture, it is necessary to notice the
judgment of this Court in D.K. Basu v. State of West
Bengal 11 . In the said case, this Court issued various
11 (1997) 1 SCC 416
99
directions in regard to safeguards to be observed in the
matter of effecting arrest. They are found in paragraph-35
and read as follows:
“35. We, therefore, consider it
appropriate to issue the
following requirements to be followed in all
cases of arrest or detention till legal
provisions are made in that behalf
as preventive measures:
(1) The police personnel carrying out
the arrest and handling the interrogation
of the arrestee should bear accurate,
visible and clear identification and name
tags with their designations. The
particulars of all such police personnel
who handle interrogation of the arrestee
must be recorded in a register.
(2) That the police officer carrying out
the arrest of the arrestee shall prepare
a memo of arrest at the time of arrest and
such memo shall be attested by at least one
witness, who may either be a member of the
family of the arrestee or a respectable
person of the locality from where the
arrest is made. It shall also be
countersigned by the arrestee and shall
contain the time and date of arrest.
(3) A person who has been arrested or
detained and is being held in custody in
a police station or interrogation centre
or other lock-up, shall be entitled to have
one friend or relative or other person
100
known to him or having interest in his
welfare being informed, as soon as
practicable, that he has been arrested and
is being detained at the particular place,
unless the attesting witness of the memo
of arrest is himself such a friend or a
relative of the arrestee.
(4) The time, place of arrest and venue
of custody of an arrestee must be notified
by the police where the next friend or
relative of the arrestee lives outside the
district or town through the Legal Aid
Organisation in the District and the
police station of the area concerned
telegraphically within a period of 8 to 12
hours after the arrest.
(5) The person arrested must be made
aware of this right to have someone
informed of his arrest or detention as soon
as he is put under arrest or is detained.
(6) An entry must be made in the diary
at the place of detention regarding the
arrest of the person which shall also
disclose the name of the next friend of the
person who has been informed of the arrest
and the names and particulars of the police
officials in whose custody the arrestee
is.
(7) The arrestee should, where he so
requests, be also examined 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 arrestee
101
and the police officer effecting the
arrest and its copy provided to the
arrestee.
(8) The arrestee should be subjected to
medical examination by a trained doctor
every 48 hours during his detention in
custody by a doctor on the panel of
approved doctors appointed by Director,
Health Services of the State or Union
Territory concerned. Director, Health
Services should prepare such a panel for
all tehsils and districts as well.
(9) Copies of all the documents
including the memo of arrest, referred to
above, should be sent to the Illaqa
Magistrate for his record.
(10) The arrestee may be permitted to
meet his lawyer during interrogation,
though not throughout the interrogation.
(11) A police control room should be
provided at all district and State
headquarters, where information regarding
the arrest and the place of custody of the
arrestee shall be communicated by the
officer causing the arrest, within 12
hours of effecting the arrest and at the
police control room it should be displayed
on a conspicuous notice board.”
78. We may observe what this Court laid down in
paragraphs-36 and 37:
102
“36. Failure to comply with the requirements
hereinabove mentioned shall apart from
rendering the official concerned liable for
departmental action, also render him liable to
be punished for contempt of court and the
proceedings for contempt of court may be
instituted in any High Court of the country,
having territorial jurisdiction over the
matter.
37. The requirements, referred to above flow
from Articles 21 and 22(1) of the Constitution
and need to be strictly followed. These would
apply with equal force to the other
governmental agencies also to which a reference
has been made earlier.”
79. When this Court laid down in paragraph-37 that the
requirements laid down by this Court would apply with equal
force to other governmental agencies, to which reference
was made earlier, the Court had in mind the following
statements in paragraph-30 of the Judgment:
“30. Apart from the police, there are
several other governmental authorities also
like Directorate of Revenue Intelligence,
Directorate of Enforcement, Coastal Guard,
Central Reserve Police Force (CRPF), Border
Security Force (BSF), the Central Industrial
103
Security Force (CISF), the State Armed
Police, Intelligence Agencies like the
Intelligence Bureau, RAW, Central Bureau of
Investigation (CBI), CID, Traffic Police,
Mounted Police and ITBP, which have the power
to detain a person and to interrogate him in
connection with the investigation of
economic offences, offences under the
Essential Commodities Act, Excise and
Customs Act, Foreign Exchange Regulation Act
etc. ……”
No doubt, these are all cases where express
power of arrest was conferred on those
Authorities under the concerned law.
80. We may notice that a Bench of this Court in Arnesh
Kumar v. State of Bihar and another12 again considered the
aspect relating to the balance that is to be struck between
individual liberty and societal order, while exercising
power of arrest. Though the matter arose under Section 498A
of the Indian Penal Code, 1860, which deals with matrimonial
cruelty read with the Dowry Prohibition Act, 1961, the Court
issued directions as contained in from paragraph-11.1 to
11.8. It also held as follows:
12 (2014) 8 SCC 273
104
“12. We hasten to add that the directions
aforesaid shall not only apply to the cases
under Section 498-A IPC or Section 4 of the
Dowry Prohibition Act, the case in hand, but
also such cases where offence is punishable
with imprisonment for a term which may be less
than seven years or which may extend to seven
years, whether with or without fine.”
81. Still later, we may notice that a Bench of this Court
frowned upon arrest which was unwarranted in the decision
reported in Rini Johar v. State of M.P.13 and the Court also
granted compensation, having regard to the manner in which
the petitioner was treated in the said case. After referring
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 legal position prevalent in
the field. On a studied scrutiny of the
report, it is quite vivid that the arrest of
the petitioners was not made by following the
procedure of arrest. Section 41-A CrPC as has
been interpreted by this Court has not been
followed. The report clearly shows that there
have been number of violations in the arrest,
and seizure. Circumstances in no case justify
13 (2016) 11 SCC 703
105
the manner in which the petitioners were
treated.”
No doubt, the Court, in Arnesh Gupta (supra), was
dealing with the case which dealt with a situation where
the offences were punishable with imprisonment upto seven
years, and as mandated in Section 41 of the 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. 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 without warrant. It reads as follows after
substitution:
“41. When police may arrest without
warrant.-(1) Any police officer may without
an order from a Magistrate and without a
warrant, arrest any person-
106
14(a) who commits, in the presence of a
police officer, a cognizable offence;
(b) against whom a reasonable complaint has
been made, or credible information has
been received, or a reasonable suspicion
exists that he has committed a
cognizable offence punishable with
imprisonment for a term which may be less
than seven years or which may extend to
seven years whether with or without
fine, if the following conditions are
satisfied, namely:-
(i) the police officer has reason to
believe on the basis of such
complaint, information, or
suspicion that such person has
committed the said offence;
(ii) the police office is satisfied that
such arrest is necessary-
(a) to prevent such person from
committing any further
offence; or
(b) for proper investigation of the
offence; or
(c) to prevent such person from
causing the evidence of the
offence to disappear or
tampering with such evidence in
any manner; or
(d) to prevent such person from
making any inducement, threat
or promise to any person
14 Substituted by Act 5 of 2009, sec.5(i), for clauses (a) and (b)
(w.e.f. 1-11-2010).
107
acquainted with the facts of
the case so as to dissuade him
from disclosing such facts to
the Court or to the police
officer; or
(e) as unless such person is
arrested, his presence in the
Court whenever required cannot
be ensured,
and the police officer shall record
while making such arrest, his
reasons in writing:
15 [Provided that a police officer
shall, in all cases where the arrest
of a person is not required under
the provisions of this sub-section,
record the reasons in writing for
not making the arrest.]
(ba) against whom credible information has
been received that he has committed a
cognizable offence punishable with
imprisonment for a term which may extend
to more than seven years whether with or
without fine or with death sentence and
the police officer has reason to believe
on the basis of that information that
such person has committed the said
offence;]
(c) who has been proclaimed as an offender
either under this Code or by order of the
State Government; or
(d) in whose possession anything is found
which may reasonably be suspected to be
15 Ins. By Act 41 of 2010, sec.2 (w.e.f. 2-11-2010).
108
stolen property and who may reasonably
be suspected of having committed an
offence with reference to such thing; or
(e) who obstructs a police officer while in
the execution of his duty, or who has
escaped, or attempts to escape, from
lawful custody; or
(f) who is reasonably suspected of being a
deserter from any of the Armed Forces of
the Union; or
(g) who has been concerned in, or against
whom a reasonable complaint has been
made, or credible information has been
received, or a reasonable suspicion
exists, of his having been concerned in,
any act committed at any place out of
India which, if committed in India,
would have been punishable as an
offence, and for which he is, under any
law relating to extradition, or
otherwise, liable to be apprehended or
detained in custody in India; or
(h) who, being a released convict, commits
a breach of any rule made under subsection (5) of section 356; or
(i) for whose arrest any requisition,
whether written or oral, has been
received from another police officer,
provided that the requisition specifies
the person to be arrested and the offence
or other cause for which the arrest is
to be made and it appears therefrom that
the person might lawfully be arrested
109
without a warrant by the officer who
issued the requisition.
16[(2) Subject to the provisions of Section
42, no person concerned in a non-cognizable
offence or against whom a complaint has been
made or credible information has been
received or reasonable suspicion exists of
his having so concerned, shall be arrested
except under a warrant or order of a
Magistrate.]."
83. Section 41A of the CrPC, inserted w.e.f. 01.11.2010,
provides for issuance of Notice by the Police Officer in
all the cases covered by Sub-Section (1) of Section 41 of
the CrPC, where the arrest of a person is not required, to
appear before him. As long as a person complies with the
Notice, Section 41A(iii) prohibits arrest unless the Police
Officer, for reasons to be recorded, is of the view that
he is to be arrested. Section 41B of the CrPC, again inserted
w.e.f. 01.11.2010, casts a duty on a Police Officer, making
an arrest, to bear an accurate, visible and clear
16 Subs. By Act 5 of 2009, sec. 5(ii), for sub-Section (2) (w.e.f.
1-11-2010).
110
identification of his name. He is to prepare a Memorandum
of Arrest, which is, inter alia, to be countersigned by the
person arrested. Section 41D of the CrPC confers a right
on the arrested person to meet an Advocate of his choice
during the interrogation, though not throughout
interrogation. Under Section 42 of the CrPC, if a person
commits a non-cognizable offence in the presence of a Police
Officer or he is accused of committing a non-cognizable
offence, and the Police Officer, on demanding his name and
residence, is met with a refusal or the giving of a name
or residence, which the Officer believes to be false, arrest
can be made but for the purpose of ascertaining the name
and residence. In fact, he is to be released immediately
on executing a bond when the true name and residence is
ascertained. If there is failure to ascertain the address
within twenty-four hours, inter alia, of arrest, no doubt,
it is forthwith forwarded to the nearest Magistrate having
jurisdiction. The Act contemplates arrest by a private
person. The power and the procedure, is detailed in Section
43 of the CrPC, it reads as follows:
111
“43. Arrest by private person and procedure
on such arrest.
(1) Any private person may arrest or cause to
be arrested any person who in his presence
commits a non- bailable and cognizable
offence, or any proclaimed offender, and,
without unnecessary delay, shall make over or
cause to be made over any person so arrested
to a police officer, or, in the absence of a
police officer, take such person or cause him
to be taken in custody to the nearest police
station.
(2) If there is reason to believe that such
person comes under the provisions of section
41, a police officer shall re- arrest him.
(3) If there is reason to believe that he has
committed a non- cognizable offence, and he
refuses on the demand of a police officer to
give his name and residence, or gives a name
or residence which such officer has reason to
believe to be false, he shall be dealt with
under the provisions of section 42; but if
there is no sufficient 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 a person sought to be arrested. Section
48 of the CrPC reads as follows:
112
“48. Pursuit of offenders into other
jurisdictions. A police officer may, for the
purpose of arresting without warrant any
person whom he is authorised to arrest,
pursue such person into any place in India.”
85. The person arrested is not to be subjected to more
restraint than is necessary to prevent his escape, declares
Section 49 of the CrPC. Every Police Officer or other
person, arresting a person without a warrant, is bound
forthwith to communicate to him all particulars of the
offence for which he is arrested or other grounds for such
arrest. This is provided for in Section 50 of the CrPC. A
Police Officer, when he arrests a person without warrant
and he is not accused of committing a non-bailable offence,
is duty-bound to inform him of his entitlement to be
released on Bail. The Police Officer is also under an
obligation to inform, under Section 50A of the CrPC, a
nominated person about the factum of arrest. This came into
force on 23.06.2006. Section 51 deals with search of the
arrested person.
113
86. Section 54 of the CrPC declares that when any person
is arrested, he shall be examined by a Medical Officer.
Section 54A of the CrPC, inserted w.e.f. 23.06.2006,
specifically provides for identification of 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 the person, to take reasonable care of the health
and safety. Section 56 of the CrPC makes it the duty of the
Police Officer, arresting without warrant, to produce the
person arrested before a Magistrate having jurisdiction
without unnecessary delay or before the Officer In-charge
of a 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- four hours. No police officer
shall detain in custody a person arrested
without warrant for a longer period than
under all the circumstances of the case is
reasonable, and such period shall not, in the
absence of a special order of a Magistrate
under section 167, exceed twenty- four hours
exclusive of the time necessary for the
114
journey from the place of arrest to the
Magistrate' s Court.”
87. The Officer In-charge of Police Station is to report
about all persons arrested without warrant to the District
Magistrate or the Sub-Divisional Magistrate as directed by
the District Magistrate. Section 59 of the CrPC provides
that no person, who has been arrested by a Police Officer,
shall be discharged, except on his own bond or on Bail or
under the Special Order of the Magistrate. Section 60A of
the CrPC provides that no arrest is to be made, except in
accordance with the provisions of the CrPC or any other law
being in force, providing for arrest. Chapter XI of the CrPC
provides for preventive action of the Police. Section 151
of the CrPC, inter alia, empowers a Police Officer, knowing
of a design by a person to commit a cognizable offence, to
arrest him without orders from a Magistrate and without a
warrant. Section 157 of the CrPC provides, inter alia, that
the Police Officer, proceeding to investigate a case, may
take measures for the arrest of the offender. Section 167
115
of the CrPC deals with a case where investigation is not
completed within twenty-four hours, as fixed in Section 57
of the CrPC. It provides that in such a situation, if there
are grounds for believing that the accusation or
information is well founded, the person arrested, is to be
forwarded to the Magistrate, inter alia. Section 167
empowers Magistrate to order remand of the accused person,
as provided therein.
A FEW WORDS ABOUT THE PROVISIONS AS TO BAIL
88. Chapter XXXIII of the CrPC deals with Bail. Section 436
of the CrPC deals with Bail in the case of an arrest of a
person accused of a bailable offence. There is a Statutory
Right to Bail in the manner provided therein. Section 437
of the CrPC provides for Bail in the case of a non-bailable
offence. It, essentially, deals with a situation where a
person is brought before a court other than the High Court
or Court of Sessions. There are certain restrictions and
conditions to be fulfilled in the matter of grant of Bail
on the Court, as is stated therein.
116
89. Section 439 of the CrPC, confers special powers on the
High Court or the Court of Sessions in regard to Bail. It
reads as follows:
“439. Special powers of High Court or Court
of Session regarding bail.
(1) A High Court or Court of Session may
direct-
(a) that any person accused of an offence and
in custody be released on bail, and if the
offence is of the nature specified in
subsection (3) of section 437, may impose any
condition which it considers necessary for
the purposes mentioned in that sub- section;
(b) that any condition imposed by a
Magistrate when releasing an person on bail
be set aside or modified: Provided that the
High Court or the Court of Session shall,
before granting bail to a person who is
accused of an offence which is triable
exclusively by the Court of Session or which,
though not so triable, is punishable with
imprisonment for life, give notice of the
application for bail to the Public Prosecutor
unless it is, for reasons to be recorded in
writing, of opinion that it is not
practicable to give such notice.
(2) A High Court or Court of Session may
direct that any person who has been released
on bail under this Chapter be arrested and
commit him to custody.”
117
90. Section 36AC of the Act, around which much arguments
were addressed reads as follows:
“36AC. Offences to be cognizable and
non-bailable in certain cases. —
(1) Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2 of
1974),—
(a) every offence, relating to adulterated
or spurious drug and 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 and sub-sections (1) and (2)
of section 30 and other 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 and sub-sections (1) and (2) of section
30 and other offences relating to adulterated
drugs or spurious drugs, shall be released on
bail or on his own bond unless—
(i) the Public Prosecutor has been given an
opportunity to oppose the application for
such release; and
118
(ii) where the Public Prosecutor opposes the
application, the Court is satisfied that
there are reasonable grounds for believing
that he is not guilty of such offence and that
he is not likely to commit any offence while
on bail:
Provided that a person, who, is under the age
of sixteen years, or is a woman or is sick or
infirm, may be released on bail, if the
Special Court so directs.
(2) The limitation on granting of bail
specified in clause (b) of sub-section (1) is
in addition to the limitations under the Code
of Criminal Procedure, 1973 (2 of 1974) or any
other law for the time being in force on
granting of bail.
(3) Nothing contained in this section shall be
deemed to affect the special powers of the High
Court regarding bail under section 439 of the
Code of Criminal Procedure, 1973 (2 of 1974)
and the High Court 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 a reference to a “Special Court”
designated under section 36AB.”
91. The learned Counsel for the Union of India would submit
that the Inspector, under Section 32 of the Act, cannot be
treated as a Police Officer who has the power to arrest under
the CrPC. Reliance is placed on Badaku Joti Savant v. State
119
of Mysore17. Similarly, support is drawn from Raj Kumar
Karwal v. Union of India and others18. Reliance is also
placed on Ramesh Chandra Mehta v. State of W.B.19, Illias
v. Collector of Customs, Madras20, State of U.P. v. Durga
Prasad 21 and Balkishan A. Devidayal v. State of
Maharashtra22. These decisions, apparently, are relied on
to show that Officers of Department, including the
Directorate of Revenue Intelligence (DRI), invested with
powers of investigation under the Narcotic Drugs and
Psychotropic Substances Act, 1985, Customs Act, 1962 and
under the Railway Property (Unlawful Possession) Act, 1966,
are not Police Officers. It is, therefore, the case of the
petitioner that important indispensable attribute of a
Police Officer is not only authority to investigate but to
also have power to file a Report under Section 173 of the
CrPC.
17 (1966) 3 SCR 698
18(1990) 2 SCC 409
19(1969) 2 SCR 461
20(1969) 2 SCR 613
21(1975) 3 SCC 210
22(1980) 4 SCC 600
120
92. It is further contended that unlike the Prevention of
Money-Laundering Act, 2002, which specially provides that
“no Police Officer can investigate into an offence under
the Act”, the Act in question is silent. The special
provision must prevail in case of conflict with the general
provision. In view of absence of specific powers on the
Inspector under the Act, provisions of CrPC will prevail.
A literal interpretation, according to the plain meaning
of the language, is commended for our acceptance. The
provisions of Section 36AC of the Act are emphasized before
us treating offences thereunder as being cognizable and
non-bailable. It is submitted that there is power to arrest
with the Police. The judgment in Deepak Mahajan (supra) is
sought to be distinguished. The implication of Section 36AC
of the Act is that the offences set-out therein can be
investigated by the Police. Therefore, Section 36AC will
apply notwithstanding Section 32 of the Act. Otherwise, the
intention of the Legislature, in making the offence
cognizable and, at the same time, to denude the Police of
121
the power to prosecute, would be a contradiction. It is
pointed out that before Section 36AC of the Act, the
offences relating to adulterated and spurious drugs under
the Act, were non-cognizable offences. It is also contended
that Section 36AC of the Act now makes an exception by
empowering the Police to investigate and consequently
prosecute for the offences specifically set-out in Section
36AC. It is pointed out that the offences set-out in Section
36AC, other than the offences relating to adulterated drugs
and spurious drugs, could not have been 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 other
provisions mentioned in Section 36AC of the Act, were
non-cognizable offences as per Schedule I Part 2 of the
CrPC. But having regard to the amended Section 36AC of the
Act, it is the special provisions in Section 36AC, which
will prevail.
122
THE SUBMISSIONS OF THE LEARNED AMICUS IN REGARD TO ARREST.
93. When the Court pointed out that there is no express
power on the Drugs Inspector under the Act to arrest and
when an arrest is effected, whether it becomes necessary
to register an FIR under Section 154 of the CrPC. The learned
Amicus Curiae submitted as follows:
He agreed that for a person to be released on
Bail, he should have been remanded to custody. He
should further have been arrested under Section 157
of the CrPC in order that he be remanded under
Section 167 of the CrPC. If he is arrested under
Section 41(1) of the CrPC, immediately thereafter,
a case should be registered and he should be sent
to the Court seeking remand. Any case registered
under Section 154 or 155 of the CrPC, is to culminate
in the Report under Section 173(2) of the CrPC. There
is no other way for giving disposal to the case.
Filing of such a Final Report under Section 190 of
the CrPC is to take cognizance, and since Section
123
32 of the Act would bar such cognizance, no purpose
would be served in registering the case. The
Legislative intent, under Section 32 of the Act,
cannot be diluted. The Police Officer, therefore,
cannot arrest under Section 157 of the CrPC. While
introducing Section 36AC, the Legislature was
presumed to know the bar in Section 32. There is an
inconsistency between Section 32 and Section 36AC,
though they were amended/introduced by the same
amendment. It becomes the duty of the Court to avoid
a head-on clash between the two Sections. It is
contended that the Court must effect
reconciliation. Reliance is placed on judgment of
this Court in D. Sanjeevayya v. Election Tribunal,
Andhra Pradesh and others23.
94. Learned Amicus Curiae further submits that Section 21
of the Act speaks of the “Appointment of the Inspectors”.
The qualifications of Inspectors are provided in Rule 49
23 AIR 1967 SC 1211
124
of the Drugs and Cosmetics Rules. They are Experts in the
subjects so far as the powers are provided in Sections 22
and 23 of the Act. The provisions in Section 23 are
mandatory. The Act provides for getting a Report on the
sample and the accused is also enabled to seek a Second
Report from the Central Laboratory. The Police Officer may
not have the qualifications. He may not know how to draw
the sample. The procedure can be meaningfully followed only
by the Inspectors. Legislature did not intend to give
similar powers to the Police. It is further contended that
if it is held that the Police can file a Final Report, upon
which cognizance can be taken, it will make Section 32 of
the Act non-existent. Similarly, in an attempt to interpret
Section 36AC, if the Police is conferred with the power to
arrest, it will lead to authorizing the Police to also
register the case under Section 154 of the CrPC and to file
a Final Report under Section 173(2) of the CrPC. It is
difficult to harmonise Section 32 and Section 36AC of the
Act, it is pointed out. The learned Amicus Curiae draws our
125
attention to the following observations of this Court in
Sultana Begum v. Prem Chand Jain24:
“11. The statute has to be read as a whole to
find out the real intention of the
legislature.
12. In Canada Sugar Refining
Co. v. R. [1898 AC 735 : 67 LJPC 126] , Lord
Davy observed:
“Every clause of a statute should be
construed with reference to the context
and other clauses of the Act, so as, as
far as possible, to make a consistent
enactment of the whole statute or series
of statutes relating to the
subject-matter.”
13. This Court has adopted the same rule
in M. Pentiah v. Muddala Veeramallappa [AIR
1961 SC 1107 : (1961) 2 SCR 295] ; Gammon
India Ltd. v. Union of India [(1974) 1 SCC
596 : 1974 SCC (L&S) 252 : AIR 1974 SC 960]
; Mysore SRTC v. Mirja Khasim Ali
Beg [(1977) 2 SCC 457 : 1974 SCC (L&S) 282 :
AIR 1977 SC 747] ; V. Tulasamma v. Sesha
Reddy [(1977) 3 SCC 99 : AIR 1977 SC 1944]
; Punjab Beverages (P) Ltd. v. Suresh
Chand [(1978) 2 SCC 144 : 1978 SCC (L&S) 165
: AIR 1978 SC 995] ; 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
24 (1997) 1 SCC 373
126
1962 SC 1044 : 1962 Supp (3) SCR 1] and J.K.
Cotton Spg. & Wvg. Mills Co. Ltd. v. State of
U.P. [AIR 1961 SC 1170 : (1961) 1 LLJ 540]
xxx xxx xxx xxx
15. On a conspectus of the case-law
indicated above, the following principles
are clearly discernible:
(1) It is the duty of the courts to avoid
a head-on clash between two sections of the
Act and to construe the provisions which
appear to be in conflict with each other
in such a manner as to harmonise them.
(2) The provisions of one section of a
statute cannot be used to defeat the other
provisions unless the court, in spite of
its efforts, finds it impossible to effect
reconciliation between them.
(3) It has to be borne in mind by all the
courts all the time that when there are two
conflicting provisions in an Act, which
cannot be reconciled with each other, they
should be so interpreted that, if
possible, effect should be given to
both. This is the essence of the rule of
“harmonious construction”.
(4) The courts have also to keep in mind
that an interpretation which reduces one
of the provisions as a “dead letter” or
“useless lumber” is not harmonious
construction.
(5) To harmonise is not to destroy any
statutory provision or to render it
otiose.”
127
95. Police cannot arrest as there can be no investigation
by the Police. Section 36AC of the Act stipulates stringent
conditions for granting Bail. It can be made applicable when
the accused is remanded to the custody by the Magistrate
while committing the case to the Sessions Court.
96. As regards Section 41 of the CrPC, the learned Amicus
Curiae would point out that empowering the Police to arrest
in respect of cognizable offence, under the said
provisions, being a general provision, may not be
countenanced as the general provisions are overridden by
the provisions of the Act. Again, arrest under Section 41
of the CrPC must be followed by the registration of the case
under Section 154 of the CrPC, which is not possible in view
of Section 32 of the Act. The learned Amicus Curiae also
voices the apprehension that if power to arrest is conferred
on the Police Officer, under Section 41, then, in every
special enactment, such as the Food Adulteration Act,
Income-Tax Act, Food Safety and Standards Act, Customs Act,
etc., the Police will arrest under Section 41 of the CrPC,
128
register a case and file a Final Report. The special
provisions of those Acts, restricting cognizance only on
the basis of a complaint, would be rendered nugatory.
97. The learned Amicus Curiae would also submit that though
there 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 the Inspector has power
to arrest. In this regard, reliance is placed on Deepak
Mahajan (supra).
ANALYSIS
98. The arrest of a person involves an encroachment on his
personal liberty. Article 21 of the Constitution of India
declares that no person shall be deprived of his personal
liberty and life except in accordance with procedure
established by law. There can be no doubt that the power
to arrest any person therefore must be premised on a law
which authorizes the same.
129
99. Under the Act, as noted by us, and bearing in mind the
law laid down in connection with similar Statutes, we have
no hesitation in rejecting the argument of the petitioner
that after the amendment of Section 36AC of the Act, making
the offences cognizable and non-bailable, it is open to the
Police Officer to prosecute the person for the offences
set-out in Section 36AC of the Act. Having regard to the
express provisions of Section 32 of the Act, insofar as the
prosecution is to be launched qua offences falling within
the four walls of Chapter IV of the Act, and which are also
the subject matter of Section 36AC of the Act, there cannot
be any doubt that prosecution of the offender, for such
offences, can be done only in the manner provided in Section
32 of the Act. The prosecution can be launched only by the
persons mentioned in Section 32 of the Act. A Police
Officer, as such, does not figure as one of the persons who
may prefer a 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
130
offence under Chapter IV, if the acts or omission also
constitutes an offence under any other law, under Section
32(3) of the Act, it may be open to the Police Officer, if
he is otherwise empowered under the said law, to prosecute
the person for the same offence, to act as such.
100. Consequently, the registration of an FIR, which
under the scheme of the CrPC, sets the ball rolling,
empowering the Police Officer to investigate under Section
157 of the CrPC, and gather material and finally file a
Report, would all appear to us to be inapplicable to an
offence under Chapter IV of the Act.
101. The conundrum, however, is posed by the aspect
relating to arrest. Undoubtedly, there is no express power
on the Inspector to arrest under the Act. The argument of
the learned Additional Solicitor General, Ms. Pinky Anand
that the Drugs Inspector could not be a Police Officer as
he is not a person who can file a Report under Section 173
of the CrPC and, therefore, he cannot arrest, does not
appeal to us. The decisions relied upon by the learned
131
Counsel, referred to by us in paragraph-91 hereinbefore,
only declare that the Customs Officer under the Customs Act
and the other officers in the enactments, which we have
referred to, are not Police Officers in the context of
Section 25 of the Indian Evidence Act, 1872 (hereinafter
referred to as ‘the Evidence Act’, for short). Section 25
of the Evidence Act renders inadmissible a confession made
to a Police Officer. The question here is not whether the
Drugs Inspector is a Police Officer and the question here
is whether he is empowered to carry out arrest of a person
under the Act. Still further, the question to be answered
is, whether a Police officer under the CrPC is deprived of
his power, under the CrPC, to arrest. These are the
questions 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 of the provisions of the CrPC, as
it existed at the time when the Act was enacted in 1940.
This is following the principle that the Legislature must
132
be assumed to know the law which exists on the Statute Book
when it makes a new law. It must, therefore, be assumed to
know that the power of arrest is expressly conferred on the
Police Officer in the manner which we have referred to. The
Legislature has not, in the Act, yet conferred express power
on the Drugs inspector, to arrest. However, Section
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 may be necessary for carrying out the
purpose of Chapter IV or any Rules made thereunder. The
sanction, which is contemplated under Chapter IV, is the
criminal sanction by way of prosecuting a person for
contravening the provisions of Chapter IV of the Act. In
other words, the Legislature has given teeth to the law by
providing for prosecuting offenders. The Inspector is at
the center stage. In every other aspect, as can be seen from
the Act, the implementation of its provisions is vitally
dependent upon the powers and functions assigned to the
Inspector. The very qualifications, which are provided in
the Rules, as indispensable for being appointed as an
133
Inspector, represents a carefully chosen value judgment by
the Legislature to assign the implementation of the Act
through the competent hands of qualified persons. The Act
is enacted to achieve the highest public interest in as much
as what is at stake is the health of the members of the
public, which again is recognized as one of the aspects
covered by the Fundamental Right protected under Article
21 of the Constitution of India. Keeping the Police Officer
out from the categories of persons, who could prosecute
offenders for offences under Chapter IV of the Act, is also
a carefully thought out ideal.
THE DECISION OF THIS COURT IN DIRECTORATE OF ENFORCEMENT
V. DEEPAK MAHAJAN AND ANOTHER25
103. In Deepak Mahajan (supra), the question arose in
the context of provisions of Section 35 of the Foreign
Exchange Regulation Act, 1973 (FERA) and Section 104 of the
Customs Act, 1962, which expressly conferred power of
arrest on the Officers under the Acts. The question which
25 (1994) 3 SCC 440
134
squarely arose was whether upon arrest being effected under
Section 35 of the FERA and Section 104 of the Customs Act,
a remand could be ordered under Section 167(2) of the CrPC.
In the course of discussion, the Court proceeded to hold
that the CrPC gives power of arrest not only to the Police
Officer, but to a Magistrate and also under certain
circumstances or given situations to private persons. It
went on to hold that in every arrest there is custody but
not vice-versa. It further held as follows:
“54. The above deliberation leads to a
derivation that to invoke Section 167(1), it
is not an indispensable pre-requisite
condition that in all circumstances, the
arrest should have been effected only by a
police officer and none else and that there
must necessarily be records of entries of a
case diary. Therefore, it necessarily
follows that a mere production of an arrestee
before a competent Magistrate by an
authorised officer or an officer empowered to
arrest (notwithstanding the fact that he is
not a police officer in its stricto sensu) on
a reasonable belief that the arrestee “has
been guilty of an offence punishable” under
the provisions of the special Act is
sufficient for the Magistrate to take that
person into his custody on his being
satisfied of the three preliminary
conditions, namely (1) the arresting officer
135
is legally competent to make the arrest; (2)
that the particulars of the offence or the
accusation for which the person is arrested
or other grounds for such arrest do exist and
are well-founded; and (3) that the provisions
of the special Act in regard to the arrest of
the persons and the production of the
arrestee serve the purpose of Section 167(1)
of the Code.”
(Emphasis supplied)
104. Section 35(2) in FERA and Section 104(2) of the
Customs Act, provided that the person arrested was to be
taken before a Magistrate without unnecessary delay. As
regards the power to detain the person arrested 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 a generic sense in
Section 167(1) and (2) denoting the ‘person’
whose liberty is actually restrained on his
arrest by a 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 the
Code includes ‘any person arrested’. The
136
inevitable consequence that follows is that
“any person is arrested” occurring in the
first limb of Section 167(1) of the Code takes
within its ambit “every person arrested”
under Section 35 of FERA or Section 104 of the
Customs Act also as the case may be and the
‘person arrested’ can be detained by the
Magistrate in exercise of his power under
Section 167(2) of the Code. In other words,
the ‘person arrested’ under FERA or Customs
Act is assimilated with the characteristics
of an ‘accused’ within the range of Section
167(1) and as such liable to be detained under
Section 167(2) by a Magistrate when produced
before him.”
105. The Court went on to consider the impact of other
laws in regard to the scope of the expression “Police
Officer”. It held as follows:
“111. Neither the Police Act, 1861 (Act V
of 1861) nor any other statute defines the
expression ‘police officer’. Shortly stated,
the main duties of the police are the
prevention, detention and investigation of
crimes. As the powers and duties of the State
have increased and are increasing manifold,
various Acts dealing with Customs, Excise,
Forest, Taxes etc. have come to be passed and
consequently the prevention, detention and
investigation of offences as prescribed
under those Acts have come to be entrusted to
officers with different nomenclatures
appropriate to the subject with reference to
which they function. However, as stated
137
supra, though the powers of customs officers
and enforcement officers are not identical to
those of police officers qua the
investigation under Chapter XII of the Code
yet the officers under the FERA and Customs
Act are vested with certain powers similar to
the powers of police officers.”
106. Section 167(1) of the CrPC contemplates forwarding
the diary which was interpreted to be not the general diary
and the special diary under Section 167(2) of the CrPC. In
regard to the enactments in question, this Court held as
follows:
“113. Though an authorised officer of
Enforcement or Customs is not undertaking an
investigation as contemplated under Chapter
XII of the Code, yet those officers are
enjoying some analogous powers such as
arrest, seizures, interrogation etc.
Besides, a statutory duty is enjoined on them
to inform the arrestee of the grounds for such
arrest as contemplated under Article 22(1) of
the Constitution and Section 50 of the Code.
Therefore, they have necessarily to make
records of their statutory functions showing
the name of the informant, as well as the name
of the person who violated any other
provision of the Code and who has been guilty
of an offence punishable under the Act,
138
nature of information received by them, time
of the arrest, seizure of the contraband if
any and the statements recorded during the
course of the detection of the
offence/offences.”
107. It also found the following powers available under
five Central enactments:
Sl.
No.
Name of the Act Power to
search
premises
Power to
search
suspected
persons,
entering or
leaving India
Power to
search
persons
1 2 3 4 5
1. Foreign
Exchange
Regulation Act,
1973
Sec. 37 Sec. 34 Sec. 34
2. The Customs Act Sec. 105 Sec. 100 Sec. 101
3. The Gold
(Control) Act
(now repealed)
Sec. 58 — Sec. 60
4. The Prevention
of Food
Adulteration
Act.
Sec. 10(2) S. 6 to be r/w
S. 18 or the
Sea Customs
Act.
—
5. The Railway
Property
(Unlawful
Possession)
Act.
Sec. 10
and Sec.
11
— —
139
Power to stop
and search
conveyances
Power to
seize
goods,
documents
etc.
Power to
arrest.
Power to
examine
persons
Power to
summon
persons to
give
evidence and
produce
documents
6 7 8 9 10
Sec. 36 Sec. 38 Sec. 35 Sec. 39 Sec. 40
Sec. 106 Sec. 110 Sec. 104 Sec. 107 Sec. 108
Sec. 61 Sec. 66 Sec. 68 Sec. 64 Sec. 63
— Sec. 10 Sec.
10(B)
— —
— — Sec. 6 — Sec. 9
108. The Court further held as follows:
“116. It should not be lost sight of the
fact that a police officer making an
investigation of an offence representing the
State files a report under Section 173 of the
Code and becomes the complainant whereas the
prosecuting agency under the special Acts
files a complaint as a complainant i.e. under
Section 61(ii) in the case of FERA and under
Section 137 of the Customs Act. To say
differently, the police officer after
consummation of the investigation files a
report under Section 173 of the Code upon
which the Magistrate may take cognizance of
any offence disclosed in the report under
Section 190(1)(b) of the Code whereas the
empowered or authorised officer of the
special Acts has to file only a complaint of
facts constituting any offence under the
140
provisions of the Act on the receipt of which
the Magistrate may take cognizance of the
said offence under Section 190(1)(a) of the
Code. After taking cognizance of the offence
either upon a police report or upon receiving
a complaint of facts, the Magistrate has to
proceed with the case as per the procedure
prescribed under the Code or under the
special procedure, if any, prescribed under
the special Acts. Therefore, the word
‘investigation’ cannot be limited only to
police investigation but on the other hand,
the said word is with wider connotation and
flexible so as to include the investigation
carried on by any agency whether he be a
police officer or empowered or authorised
officer or a person not being a police officer
under the direction of a Magistrate to make
an investigation vested with the power of
investigation.”
(Emphasis supplied)
109. In fact, as laid down in Deepak Mahajan (supra),
the power of arrest can be conferred on persons other than
a Police Officer. We are, for the moment, excluding the
position under the CrPC that even a private person can
arrest as provided in Section 43 of the CrPC. The Foreign
Exchange Regulation Act, 1973 (hence repealed); the Customs
141
Act, 1962; the Gold (Control) Act, 1968 (repealed); the
Prevention of Food Adulteration Act, 1954 (hence repealed)
and the Railway Property (Unlawful Possession) Act, 1966,
in Sections 35, 104, 68, 10B and Section 6, respectively,
conferred power of arrest on the Officers under these Acts.
Therefore, if we interpret Section 22(1)(d) of the Act, as
comprehending the power of arrest with the Drugs Inspector,
then, his competency to arrest, a requirement in law, as
laid down again in Deepak Mahajan (supra) (See
paragraph-54), would stand satisfied. However, the further
question is, what is the procedure to be followed by the
Inspector, and still finally, whether the Police Officer,
under the CrPC, will stand deprived of the power to arrest.
The argument of the learned Amicus Curiae appears to be that
since a Police Officer, once he registers an FIR under
Section 154 of the CrPC, is duty-bound to carry the matter
to its logical conclusion, viz., to investigate the matter
as provided in the CrPC, and finally, file a Report under
Section 173(2) of the CrPC, to persuade the Court to take
cognizance in an appropriate case, all of which powers are
142
not available to a Police Officer in regard to offences
under Chapter IV of the Act, the interpretation that avoids
such a futile exercise, which also is unauthorized and
illegal in law, should be adopted.
110. We do agree with the learned Amicus Curie that the
Police Officer, for instance, cannot be approached by any
person with a complaint that a cognizable offence under
Chapter IV of the Act has been committed and he is not bound
to register the FIR in terms of the law 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 would
have 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 he deemed qualified or empowered by
the Law Giver nor is he entitled to file a Report under
Section 173 of the CrPC.
POWER OF ARREST UNDER THE ACT
111. We are faced with a situation which projects a
discord between two Statutes, viz., the CrPC and the Act,
143
and the only silver-lining appearing on the horizon, is the
ambit of the power under Section 22(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 of section 23 and of any rules
made by the Central Government in this
behalf, an Inspector may, within the local
limits of the area for which he is appointed,-
xxx xxx xxx xxx
(d) Exercise such other powers as may be
necessary for carrying out the purposes of
this Chapter or any rules made there under.”
Apart from the same, there is no express power of arrest
under the Act on the Drugs Inspector.
SOME ENACTMENTS CONTAINING PROVISIONS SIMILAR 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
144
Ground Water (Regulation and Control of Development and
Management) Act, 2016 [Section 13(1)(j)], contain
provisions similar to what is contained in Section 22(1)(d)
of the Act.
113. The Weekly Holidays Act, 1942 [Section 8(1)(c)],
the Jammu and Kashmir Factories Act, 1999 [Section
9(1)(c)], contained provisions which confer power on the
Authorities under the Act to exercise such other power as
may be necessary for carrying outer purposes of the
enactment. As far as the Shops and Commercial Establishment
Act, 1958 [Section 19(1)(c)], after conferring the power
to exercise such powers, as may be necessary for carrying
out the Act, the Law Giver carves out a limitation by way
of a proviso that no one shall be required, under the said
Section, to answer any question or give any evidence tending
to incriminate him. Such a proviso is also found in the
Private Medical Establishment Act, 2007 [vide Section
21(1)(b)] as also in the Jammu and Kashmir Factories Act,
1999.
145
SPECIFIC STATUTES CONFERRING POWERS OF ARREST; COGNIZABLE
VERSUS NON-COGNIZABLE OFFENCE
114. It is, however, relevant to notice the provisions
of the enactments containing the power to arrest and
referred to in Deepak Mahajan(supra). Section 104 of the
Customs Act, 1962, at present, reads as follows:
“104. Power to arrest. –(1) If an officer of
customs empowered in this behalf by general
or special order of the 3[Principal
Commissioner of Customs or Commissioner of
Customs] has reason to believe that any
person in India or within the Indian customs
waters has committed an offence punishable
under section 132 or section 133 or section
135 or section 135A or section 136, he may
arrest such person and shall, as soon as may
be, inform him of the grounds for such arrest.
(2) Every person arrested under
sub-section (1) shall, without unnecessary
delay, be taken to a magistrate.
(3) Where an officer of customs has
arrested any person under sub-section (1), he
shall, for the purpose of releasing such
person on bail or otherwise, have the same
powers and be subject to the same provisions
as the officer-in-charge of a police-station
146
has and is subject to under the 4Code of
Criminal Procedure, 1898 (5 of 1898).
(4) Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2 of
1974), any offence relating to —
(a) prohibited goods; or
(b) evasion or attempted evasion of duty
exceeding fifty lakh rupees,
shall be cognizable.
(5) Save as otherwise provided in
sub-section (4), all other offences under the
Act shall be non-cognizable.
(6) Notwithstanding anything contained in
the Code of Criminal Procedure, 1973, (2 of
1974) an offence punishable under section 135
relating to —
(a) evasion or attempted evasion of duty
exceeding fifty lakh rupees; or
(b) prohibited goods notified under section
11 which are also notified under sub-clause
(C) of clause (i) of sub-section (1) of
section 135; or
(c) import or export of any goods which have
not been declared in accordance with the
provisions of this Act and the market price
of which exceeds one crore rupees; or
(d) fraudulently availing of or attempt to
avail of drawback or any exemption from duty
provided under this Act, if the amount of
drawback or exemption from duty exceeds fifty
lakh rupees,
147
shall be non-bailable.
(7) Save as otherwise provided in
sub-section (6), all other offences under
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 The Foreign Exchange Management Act (FEMA), 1999]:
“35. Power to arrest.—(1) If any officer of
Enforcement authorised in this behalf by the
Central Government, by general or special
order, has reason to believe that any person
in India or within the Indian customs waters
has been guilty of an offence punishable
under this Act, he may arrest such person and
26 Prior to 13.07.2006, when the present provision came to be
substituted by Act 29 of 2006, the power to arrest was confined in
relation to person about whom reason to believe was entertained that
he had committed an offence under Section 135. As can be seen the
power of arrest after 13.07.2006, has become more wide. Further, it
is to be noticed, 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 of 1898), an offence under this Act, shall not
be cognizable. The change brought about by sub-Section (4) as
substituted, is that the offences mentioned in sub-Section (4), have
been declared to be cognizable. However, under Section 104(5), all
other offences under the Act have been declared to be non-cognizable.
148
shall, as soon as may be, inform him of the
grounds for such arrest.
(2) Every person arrested under sub-section
(1) shall, without unnecessary delay, be
taken to a magistrate.
(3) Where any officer of Enforcement has
arrested any person under sub-section (1), he
shall, for the purpose of releasing such
person on bail or otherwise, have the same
powers and be subject to the same provisions
as the officer-in-charge of a police station
has, 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 stands repealed in 1990), read as follows:
“68. Power to arrest.
(1) Any Gold Control Officer authorised by
the Administrator in this behalf may, if he
has reasons to believe that any person has
contravened, or is contravening, or is about
to contravene any provision of this Act,
arrest such person and shall as soon as
possible inform him of the grounds for such
arrest and shall take such arrested person to
the nearest magistrate within a period of
twenty-four hours of such arrest excluding
the time necessary for the journey from the
place of arrest to the court of the magistrate
and no such person shall be detained in
149
custody beyond the said period without the
authority of a magistrate.
(2) Any officer who has arrested any person
under this section shall, for the purpose of
releasing such person on bail or otherwise,
have the same powers and be subject to the
same provisions as the officer-in-charge of
a 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
Adulteration Act, 1954 (37 Of 1954), read as follows:
“10(8) Any food inspector may exercise the
powers of a police officer under section 42
of the Code of Criminal Procedure, 1973 (2 of
1974) for the purpose of ascertaining the
true name and residence of the person from
whom a sample is taken or an article of food
is seized.”
It may be noticed that Section 42 of the Cr.P.C. confers
power of arrest on a Police Officer to arrest even in regard
to a non-cognizable offence in the circumstances mentioned
therein without a warrant.
150
118. Finally, Section 6 of The Railway Property
(Unlawful Possession) Act, 1966, read as follows:
“6. Power to arrest without warrant.—Any
superior officer or member of the Force may,
without an order from a Magistrate and
without a warrant, arrest any person who has
been concerned in an offence punishable under
this Act or against whom a reasonable
suspicion exists of his having been so
concerned.”
Here, it is relevant to notice that the persons
empowered are members of the force, which is defined as
being members of the force and the word ‘force’ is defined
as the Railway protection force constituted under the
Railway Protection Force Act, 1957. It is an armed force.
119. In the Foreign Exchange Management Act, 1999,
there is no express power of arrest, as such conferred.
Instead, it is relevant to notice Section 37 of the said
enactment:
“37. Power of search, seizure, etc.—
(1) The Director of Enforcement and other
officers of Enforcement, not below the rank
of an Assistant Director, shall take up for
151
investigation the contravention referred to
in section 13. —(1) The Director of
Enforcement and other officers of
Enforcement, not below the rank of an
Assistant Director, shall take up for
investigation the contravention referred to
in section 13."
(2) Without prejudice to the provisions of
sub-section (1), the Central Government may
also, by notification, authorise any officer
or class of officers in the Central
Government, State Government or the Reserve
Bank, not below the rank of an Under Secretary
to the Government of India to investigate any
contravention referred to in section 13.
(3) The officers referred to in sub-section
(1) shall exercise the like powers which are
conferred on income-tax authorities under
the Income-tax Act, 1961 (43 of 1961) and
shall exercise such powers, subject to such
limitations laid down under that Act.”
120. The provision for arrest is contained in the Second
Schedule to the Income-Tax Act as a mode of recovery of tax.
121. A perusal of Section 104(4) of the Customs Act,
as it stood when this Court decided Deepak Mahajan (supra),
would show that while an express power was conferred on the
Customs Officer to arrest under Section 104(1), it was
152
considered to be non-cognizable offence. Further, the power
of arrest was confined only to an offence committed under
Section 135 of the Act. It is apposite to notice that under
the CrPC, there is no power with the Police Officer to arrest
in the case of a non-cognizable offence except upon a
Warrant or Order of a Magistrate.
122. In this regard, it may also be apposite to refer
to the provisions of the Central Excise Act, 1944. Section
13 confers the power to arrest. It reads as follows:
“13. Power to arrest:- Any Central
Excise Officer not below the rank of
Inspector of Central Excise may, with the
prior approval of the Principal Commissioner
of Central Excise or Commissioner of Central
Excise, arrest any person whom he has reason
to believe to be liable to punishment under
this Act or the rules made thereunder.”
123. However, Section 9A, as it stood prior to it being
amended from the year 2004 onwards, declared that the
offences under Section 9 were to be deemed to be
non-cognizable under the provisions of the Code of Criminal
153
Procedure. In Sunil Gupta v. Union of India27, the Division
Bench of the Punjab and Haryana High Court had to answer
the question as to whether the power of arrest, under
Section 13 of the Act, could be exercised without a warrant,
in view of the fact that under Section 9A, the offence was
declared as non-cognizable. The Court took the view that
Section 13 embodied a substantive power. It held, inter
alia, as follows:
“21. In our view, Section 13 embodies a
substantive power. It confers the power to
arrest. The procedural safeguards have been
protected by Section 18. This provision
merely regulates the exercise of power
under Section 13. It only provides that the
searches and arrests under the Central
Excise Act "shall be carried out in
accordance with the provisions of the
Code of Criminal Procedure ....." In other
words, an officer of the Central Excise shall
make the arrest in the manner laid down
in Section 46 of the Code of Criminal
Procedure. He "shall actually touch or
confine the body of the person to be
arrested....." In case of resistance, the
officer of the Central Excise "may use all
means necessary to effect the arrest." The
persons arrested "shall not be subjected to
more restraint than is necessary to prevent
27 2000(118) ELT 8 P&H
154
his escape." Similarly, a search shall be
carried out in accordance with the procedure
laid down in Section 100. If the person of a
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 locality shall be called
upon to be present. The search shall be made
in their presence and "a list of things seized
in the course of such search ..... shall be
prepared ......" In a nut shell, the
procedural protection contained in the
Code of Criminal Procedure has been
guaranteed even in case of arrests and
searches under the Central Excise Act, 1944.
No more.”
124. A Single Judge of the High Court of Gujarat, also
posed the following question as the one which it had to
answer in the case reported in Bhavin Impex Pvt. Ltd. v.
State of Gujarat28, as follows:
“1. The key question that arises for
consideration in this writ petition is as to
whether the authorities under the Central
Excise Act, 1944 (hereinafter referred to as
‘the Act’) have the power to arrest a person
under Section 13 of the Act without a warrant
and without filing an FIR or lodging a
complaint before a Court of competent
jurisdiction.”
28 2010(260) ELT 526 (Gujarat)
155
125. The Court purported to follow the Punjab and
Haryana High Court 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 Punjab and Haryana High Court,
viz, a Central Excise Officer, (satisfying
the conditions laid down under Section 13) is
not debarred from arresting a person without
a warrant when he has reason to believe that
the person is liable to punishment under the
Act or the rules made thereunder. Section 13
is not curtailed by Section 18 and in fact
Section 18 is merely procedural.”
126. We must, however, notice the judgment of this Court
reported in Om Parkash and Another v. Union of India and
Another29, a Judgment, which dealt with the Central Excise
Act, 1944 and also the Customs Act, 1962. The question,
however, which arose was, whether under the said
enactments, as the offences were non-cognizable, were they
bailable as well? Section 9A, as it was considered by this
Court, read as follows:
29 (2011)14 SCC 1
156
"9A. Certain offences to be
non-cognizable.-(1) Notwithstanding
anything contained in the Code of Criminal
Procedure, 1898 (5 of 1898), 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 after the institution of
prosecution, be compounded by the Chief
Commissioner of Central Excise on payment, by
the person accused of the offence to the
Central Government, of such compounding
amount and in such manner of compounding, as
may be prescribed.
Provided that nothing contained in this
sub-section shall apply to -
(a) a person who has been allowed to compound
once in respect 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) a person who has been accused of
committing an offence under this Act which is
also an offence under the Narcotic Drugs
and Psychotropic Substances Act, 1985 (61 of
1985);
(c) a person who has been allowed to compound
once in respect of any offence under this
Chapter for goods of value exceeding rupees
one crore;
157
(d) a person who has been convicted by the
court under this Act on or after the 30th day
of December, 2005.”
127. The Court did make reference to both Sunil
Gupta (supra) and Bhavin Impex Pvt. Ltd. (supra). This Court
went on to find, on an examination of the provisions, that
being non-cognizable offences under the Central Excise Act,
and taking note of the fact that as a general rule, though,
with exceptions under the First Schedule to the CrPC,
non-cognizable offences were treated as bailable, and also,
taking note of Section 20 of the Excise Act, which appeared
to show that the offences were bailable that they were
bailable. What is, however, noteworthy for the purpose of
deciding the case before us, is the statement of the law
as 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 a non-cognizable
offence is an offence for which a police
officer has no authority to arrest without
warrant. As we have also noticed
hereinbefore, the expression "cognizable
offence" in Section 2(c) of the Code means an
158
offence for which a police officer may, in
accordance with the First Schedule or under
any other law for the time being in force,
arrest without warrant. In other words, on a
construction of the definitions of the
different expressions used in the Code and
also in connected enactments in respect of a
non-cognizable offence, a police officer,
and, in the instant case an excise officer,
will have no authority to make an arrest
without obtaining a warrant for the said
purpose. The same provision is contained
in Section 41 of the Code which specifies
when a police officer may arrest without
order from a Magistrate or without warrant.”
(Emphasis supplied)
128. The Court applied the same principles in regard to
the cases which it decided under the Customs Act. We may
notice that Section 18 of the Central Excise Act, 1944
provides for the manner of making an arrest. It reads as
follows:
“18. Searches and arrests how to be made.- All
searches made under this Act or any rules made
thereunder and all arrests made under this
Act shall be carried out in accordance with
the provisions of the Code of Criminal
Procedure, 1898(5 of 1898), relating
respectively to searches and arrests made
under that Code.”
159
129. Equally of interest, are the provisions contained
in Sections 19, 20 and 21:
“19. Disposal of persons arrested.- Every
person arrested under this Act shall be
forwarded without delay to the nearest
Central Excise Officer empowered to send
persons so arrested to a Magistrate, or, if
there is no such Central Excise Officer
within a reasonable distance, to the officer
in charge of the nearest police station.
20. Procedure to be followed by officer in
charge of police station.- The officer in
charge of a police station to whom any person
is forwarded under Section 19 shall either
admit him to bail to appear before the
Magistrate having jurisdiction, or in
default of bail forward him in custody to such
Magistrate.
21. Inquiry how to be made by Central Excise
Officers against arrested persons forwarded
to them under Section 19. – (1)
When any person is forwarded under Section 19
to a Central Excise Officer empowered to send
persons so arrested to a Magistrate, the
Central Excise Officer shall proceed to
inquire into the charge against him.
(2) For this purpose the Central Excise
Officer may exercise the same powers and
shall be subject to the same provisions as the
officer in charge of a police station may
exercise and is subject to under the Code of
160
Criminal Procedure, 1898 (5 of 1898), when
investigating a cognizable case:
Provided that-
(a) If the Central Excise Officer is of
opinion that there is sufficient
evidence or reasonable ground of
suspicion against the accused person, he
shall either admit him to bail to appear
before a Magistrate having jurisdiction
in the case, or forward him in custody
to such Magistrate;
(b) If it appears to the Central Excise
Officer that there is not sufficient
evidence or reasonable ground of
suspicion against the accused person, he
shall release the accused person on his
executing a bond, with or without
sureties as the Central Excise Officer
may direct, to appear, if and when so
required, before the Magistrate having
jurisdiction, and shall make a full
report of all the particulars of the case
to his official superior.”
130. On a perusal of the statement of law contained in
paragraph-41, we find that this Court has found that as the
provisions under the enactments in question declared the
offences to be non-cognizable, the officer exercising the
power of arrest, could not arrest, except after obtaining
a warrant for the said purpose. That they may not arrest
161
without obtaining a warrant in respect of the
non-cognizable offences, being the view taken by this
Court, cannot be squared with the view taken by Punjab and
Haryana High Court and Gujarat High Court, respectively,
in Sunil Gupta (supra) and also Bhavin Impex Pvt.
Ltd. (supra), which took the view in effecting arrest under
the Central Excise Act, no warrant was required. It is
apparently consequent upon the same that Legislature
stepped in with amendments. Section 9A came to be amended
and it reads as follows after the amendment:
“Section 9A. Certain offences to be
non-cognizable.-
(1) Notwithstanding anything contained in
the Code of Criminal Procedure, 1973(2 of
1974), offences under section 9, except the
offences referred to in sub-section (1A),
shall be non-cognizable within the meaning of
that Code.
(2) Any offence under this Chapter may,
either before or after the institution of
prosecution, be compounded by the Principal
Chief Commissioner of Central Excise or Chief
Commissioner of Central Excise on payment, by
the person accused of the offence to the
Central Government, of such compounding
amount and in such manner of compounding as
may be prescribed:
162
Provided that nothing contained in this sub
-section shall apply to ---
(a) a person who has been allowed to
compound once in respect 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) a person who has been accused of
committing an offence under this Act which is
also an offence under the Narcotic Drugs and
Psychotropic Substance Act,1985 (61 of
1985);
(c) a person who has been allowed to
compound once in respect of any of the offence
under this Chapter for goods of value
exceeding rupees one crore;
(d) a person who has been convicted by the
court under this Act on or after the 30th day
of December, 2005.”
(Emphasis supplied)
131. The result would appear to be that acknowledging
the effect of making the offences being non-cognizable to
be to limit the power of the authorities under the Act for
effecting arrest under the Act, to require a warrant,
certain offences were declared to be cognizable as noticed
in Section 9A, as amended after the Judgment in
Om Parkash (supra). The resultant position after the
amendment is, it became open to the Officers to effect the
163
arrest in regard to a cognizable offence without obtaining
a warrant.
132. In regard to the Customs Act, 1962 in Section 104,
under the present avatar, two changes have been brought
about. Firstly, the power to arrest is available in respect
of offences under Sections 132, 133, 135, 135A and 136. The
offences are divided into two categories. Under Section
104(4), the offences which fall within its ambit, are
treated as cognizable. The other offences are treated as
non-cognizable under Section 104(5). For instance, if a
person is involved in an offence relating to evasion or
attempted evasion of duty exceeding 50 lakhs rupees (w.e.f.
01.08.2019), while the offence is cognizable, the power of
arrest is conferred on the Officers under Section 104(1).
The power to arrest is conferred and the only condition to
be fulfilled is that the Officer has reason to believe that
the person has committed offence concerned. The position
is the same in respect of offence relating to prohibited
goods.
164
133. We have embarked upon referring to the provisions
relating to arrest under the Excise Act and Customs Act and
the decision of this Court 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 Section 36AC,
the offences have been declared cognizable. If we proceed
on the basis that the power of arrest can be traced from
Section 22(1)(d) of the Act, then, after the amendment in
Section 36AC, by which, the offences falling under Chapter
IV of the Act, which are declared as cognizable and
non-bailable, the decks are cleared for effecting arrest
without a warrant by the Inspector.
134. However, the question would arise whether there
exists the power of arrest with the Drugs Inspector. We
will, on the one hand, array possible objections to the
conferment of such powers. The power to arrest is a drastic
power. It involves encroachment on personal liberty. The
Drugs Inspector is not a Police Officer under the CrPC. The
Legislature was aware of the power of the Police Officer
165
to arrest when he embarks on investigation of a cognizable
case, as is clear from Section 157 of the CrPC. There is
another indication in the Act which may reveal the mind of
the Legislature that the power of arrest was not intended
to be conferred on the Drugs Inspector. Section 34AA,
reads as follows:
“34AA.- Penalty for vexatious search or
seizure.—Any Inspector exercising 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, or any substance or
article, or any record, register, document or
other material object; or
(d) commits, as such Inspector, any other
act, to the injury of any person without
having reason to believe that such act is
required for the execution of his duty, shall
be punishable with fine which may extend to
one thousand rupees.”
There is no reference to arrest forming the subject
matter of penalty.
166
135. In contrast, we must notice Section 22 of the
Central Excise Act, 1944, reads as follows:
“22. Vexatious search, seizure, etc., by
Central Excise Officer.—Any Central Excise
or other officer exercising powers under this
Act or under the rules made thereunder who—
(a) without reasonable ground of suspicion
searches or causes to be searched any house,
boat or place;
(b) vexatiously and unnecessarily detains,
searches or arrests any person;
(c) vexatiously and unnecessarily seizes the
movable property of any person, on pretence
of seizing or searching for any article
liable to confiscation under this Act;
(d) commits, as such officer, any other act
to the injury of any person, without having
reason to believe that such act is required
for the execution of his duty, shall, for
every such offence, be punishable with fine
which may extend to two thousand rupees. Any
person wilfully and maliciously giving false
information and so causing an arrest or a
search to be made under this Act shall be
punishable with fine which may extend to two
thousand rupees or with imprisonment for a
term which may extend to two years or with
both.”
(Emphasis supplied)
167
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, as we
have noticed on a perusal of Sections 19 and 20. Section
68 of the Gold Control Act, 1968 has expressly conferred
power of arrest, the conditions in which the power could
be exercised and further procedure to be followed.
137. We have noticed that the Inspector under the Act
has been conferred with a vast and formidable array of
powers, and in an enactment like the Act, the taking of
samples, the Report given by the Competent Officer in regard
to the same and the right reserved to the concerned person
to seek a further Report from the Central Laboratory, go
a long way in the successful culmination of a complaint
under Section 32 of the Act. The Inspector is, undoubtedly,
endowed with the power of inspection, taking samples of any
drug or cosmetic, searching any person, searching any
168
place, searching any vehicle, examining records,
registers, documents and other material objects and seizing
the same, requiring any person to produce any record,
register or other document. These are powers which are
expressly conferred on the Inspector. Though, a complaint
could be filed by other categories of complainants in
Section 32 of the Act, the Inspector is pivot around which
the Act moves. Rule 51(4) makes it a duty on the part of
the Drugs Inspector to investigate any complaint in writing
which may be made to him. It is also his duty under Rule
51(5) to institute prosecution in respect of breaches of
the Act and the Rules thereunder. He is also duty-bound
under Rule 51(7) to make inquiries and inspections as may
be necessary to detect sale of drugs in contravention of
the Act. Under Rule 52, in regard to manufacture of drugs,
it is again the duty to institute prosecution for breaches
besides making inspections of all premises. This is having
regard to both his qualifications and also the powers
conferred on him. Section 23 of the Act, undoubtedly, is
the procedure to be followed by the Inspector. We are,
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therefore, to ascertain the meaning of the expression
“other powers”, which are essential for carrying out the
object of Chapter IV and the Rules made thereunder. The
Legislature has not given any hint, intending to limit the
scope of the residuary powers. No doubt, the Act is a
pre-Independence Act. If we interpret that it is a Drugs
Inspector, acting under Section 22 of the Act, who alone
can investigate offences falling under Chapter IV of the
Act and there is no power for the Police Officer under the
CrPC to investigate under the Act or to file a Report under
Section 173 of the CrPC, which indeed is indisputable, then,
a power of arrest, which is necessary for the purpose of
investigating and prosecution of the offences falling
within Chapter IV of the Act, must be conceded to the Drugs
Inspector. The legislative intention in conferring various
powers, as we have noticed in the foregoing provisions of
Section 22 of the Act and declaring that all other powers,
which are necessary for the purpose of the Act, are to inhere
in the Drugs Inspector, reassures us that we would be
correctly ascertaining the legislative intention to be that
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on a Drug Inspector taking-up a matter falling under Chapter
IV of the Act, he is invested with the power to arrest.
138. There is another aspect which may have an important
bearing on the issue. Under Section 36AC of the Act, the
offences as mentioned therein which include some of the
offences under Chapter IV of the Act are declared cognizable
and non-bailable. The provision imposes restriction on
the arrested person being released on bail or on his own
bond unless the public prosecutor has been given an
opportunity to oppose the application and when the public
prosecutor opposes the application, the Court is to be
satisfied that there are reasonable grounds for believing
that the accused person is not guilty of such offence and
that he is not likely to commit an offence. This
limitation, is apart from the limitations in the CrPC, inter
alia. Now, the Police Officer acting under the CrPC even
proceeding for a moment on the basis that it is sufficient
that a mere memorandum of arrest as required under the CrPC
is prepared and further there is compliance with other
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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 the Drugs Inspector who is empowered and duty bound to
investigate the complaint about violations of acts and
rules. He is the person charged with a duty of prosecuting
the offenders. If the police officer is merely to be granted
a power of arrest and without having any power of
investigation then how would it be possible for the police
officer to make any investigation under the act and if no
investigation is possible, how would the Police Officer be
in a position to be of any assistance to the Public
Prosecutor and, therefore, to the Court in the disposal of
an application for bail? In other words, it would be based
on the records of investigation and material collected by
the investigating officer that a Court in a case would
decide as to whether bail is to be granted or not. How would
the police officer seek a remand for carrying out
investigation which he cannot do? If the Act and the Rules
do not contemplate investigation by a Police Officer, then,
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conferring the power of arrest on the Police Officer, would,
in fact, frustrate the working of the Act. On the other
hand, if it is the Drugs Inspector who can arrest, the
following consequences would follow:
a. He has the requisite technical qualifications to
properly investigate and prosecute the offender.
b. He would be able to make adequate entries in whatever
document he has to maintain as a part of investigation
and it would facilitate a proper and fair consideration
of an application for bail within the meaning of
Section 36AC of the Act and also facilitate a request
for remand under Section 167 of the Cr.P.C.
139. Declaring the power to arrest with the Inspector,
is not to be understood as proclaiming that the Inspector
is bound to arrest any person. The provisions of the CrPC,
relating to arrest, would necessarily have to be followed
by the Drugs Inspector. In fact, he is obliged to bear in
mind the law, as declared by this Court in D.K. Basu (supra),
and the peril of defying the same, would be to invite
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consequences, inter alia, as are provided therein. As far
as the arrest, not being mentioned in Section 34AA, as
forming a ground for visiting the delinquent Officer with
penalty, it may be noticed that there is a residuary power
in Section 34AA and it would cover any act. We notice that
Section 34AA(d) provides that if any Inspector, exercising
powers under the Act or the Rules made thereunder, commits,
as such Inspector, any other act, to the injury of any person
without having reason to believe that such act is required
for the execution of his duty, he shall be punishable with
fine which may extend to one thousand rupees.
140. Regarding the power for seeking and ordering a
remand under Section 167, we would apply the principles laid
down by this Court in Deepak Mahajan (supra) and the same
principles would apply.
141. This process of interpretation would produce the
result of harmonizing two seemingly irreconcilable
commands from the Law-Giver. This interpretation commends
itself to us for the reason that the investigation into
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offences, under Chapter IV of the Act, would commence, be
carried out and would culminate in, in the safe hands of
the competent and qualified Statutory Authority, as
designated by law. It would also avoid an outside agency
like a Police Officer, being obliged to register an FIR,
for the reason that where arrest has to be made, a FIR is
to be registered, and, when the registering of the FIR
carries with it an unattainable object of preferring a Final
Report under Section 173 of the CrPC, as far as the Police
Officer is concerned. We make it clear that if a Police
Officer is approached with regard to a complaint regarding
commission of an offence falling under Chapter IV of the
Act, he is not to register an FIR unless it be that a
cognizable offence, other than an offence falling under
Chapter IV of the Act, is also made out. He must makeover
the complaint to the competent Drug Inspector so that action
in according with law is immediately taken where only
offences under Chapter IV are made out.
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142. As far as the arrest contemplated under Section 41
of the CrPC is concerned, in case a cognizable offence,
falling under Chapter IV of the Act, is committed, either
in the presence of the Drugs Inspector, or in respect of
which offence, a Police Officer would have power to arrest,
as provided therein, viz., covered by the situations
contemplated under Section 41(ba), the Drugs Inspector
would be entitled to effect the arrest. We are arriving at
this conclusion on the basis that since the procedure under
the CrPC is to be read as applicable, except to the extent
that a different procedure is to be provided under the Act,
and since there is no procedure or power otherwise provided
in the Act in regard to arrest, the powers and procedure
available to a 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
that the Drugs Inspector, under the Act, is invested with
certain powers similar to a Police Officer. Still further,
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we would hold that the word “investigation” cannot be
limited only to a Police investigation, as has been noted
in Deepak Mahajan (supra). Thirdly, we find that the power
to arrest a person must indeed flow from the provisions
of a Statute. The statutory provision under the Act is
Section 22(1)(d). The arrested person, under the Act, would
be an accused person to be detained under Section 167(2)
of the CrPC. No doubt, the Police Officer is bound to provide
assistance to the Inspector in case of need to effectuate
the arrest where there is resistance or likelihood of
resistance. No doubt, in regard to the arrest in relation
to offences falling under Chapter IV of the Act, which do
not fall under Section 36AC, the power of arrest would
depend upon the provision in the Schedule to the CrPC.
144. We again reiterate that the existence of the power
to arrest with the Drugs Inspector is not to be understood
as opening the doors to making illegal, unauthorized or
unnecessary arrest. Every power comes with responsibility.
In view of the impact of an arrest, the highest care must
177
be taken to exercise the same strictly as per the law. The
power of arrest must be exercised, recognizing the source
of his authority, to be Section 22(1)(d) of the Act, which
is for carrying out the purpose of Chapter IV of the Act
or any Rules made thereunder.
145. Section 33P of the Act, reads as follows:
“33P. Power to give directions.—The Central
Government may give such directions to any
State Government as may appear to the Central
Government to be necessary for carrying into
execution in the State any of the provisions
of this Act or of any rule or order made
thereunder.”
We notice that the Central Government is conferred with
powers to give directions to the State Government for the
purpose of carrying into execution, in the State, any of
the provisions of the Act or any Rule or Order made
thereunder. It is for the Central Government to consider
the question whether it can, under the said provision, issue
directions in regard to the power of arrest, which we have
found, subject to what we have stated in this Judgment.
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146. Further, Section 58 of the CrPC provides that the
Officers In-charge of Police Stations are to report cases
of all persons arrested without warrant as provided
therein. We make it clear that the Drugs Inspector must,
apart from other relevant provisions of the CrPC, comply
with the requirement of reporting. In view of the need to
safeguard the interest of persons, who may be proceeded
against by the Drugs Inspector, we also hold and direct that
the Drugs Inspector will immediately, after arrest, make
a report of the arrest to his superior Officer.
147. It has been brought to our notice that FIRs have
been filed in regard to offences under Chapter IV of the
Act. In the view we have taken, no further investigation
can be done by the Police Officer. However, it is in the
interest of justice that the FIRs are made over by the Police
Officers to the concerned Drugs Inspector at the earliest.
We are persuaded to issue such directions in the exercise
of our powers under Article 142 of the Constitution of
India.
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148. It would appear that on an understanding of the
provisions, arrests would have been effected by Police
Officers in regard to the cognizable offences under Chapter
IV of the Act. Having regard to the fact that we are
resolving this controversy on a conspectus of the various
provisions of the Act and the CrPC, we are inclined to direct
that this Judgment, holding that Police Officers do not have
power to arrest in regard to cognizable offences under
Chapter IV of the Act, is to operate from 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 resolved through this Judgment, in regard to
the power of arrest, may engage the competent Legislative
Body.
THE CONCLUSIONS/DIRECTIONS
150. Thus, we may cull out our conclusions/directions
as follows:
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I. In regard to cognizable offences under Chapter IV
of the Act, in view of Section 32 of the Act and
also the scheme of the CrPC, the Police Officer
cannot prosecute offenders in regard to such
offences. Only the persons mentioned in Section 32
are entitled to do the same.
II. There is no bar to the Police Officer, however, to
investigate and prosecute the person where he has
committed an offence, as stated under Section
32(3) of the Act, i.e., if he has committed any
cognizable offence under any other law.
III. Having regard to the scheme of the CrPC and also
the mandate of Section 32 of the Act and on a
conspectus of powers which are available with the
Drugs Inspector under the Act and also his duties,
a Police Officer cannot register a FIR under
Section 154 of the CrPC, in regard to cognizable
offences under Chapter IV of the Act and he cannot
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investigate such offences under the provisions of
the CrPC.
IV. Having regard to the provisions of Section
22(1)(d) of the Act, we hold that an arrest can be
made by the Drugs Inspector in regard to cognizable
offences falling under Chapter IV of the Act
without any warrant and otherwise treating it as
a cognizable offence. He is, however, bound by
the law as laid down in D.K. Basu (supra) and to
follow the provisions of CrPC.
V. It would appear that on the understanding that the
Police Officer can register a FIR, there are many
cases where FIRs have been registered in regard to
cognizable offences falling under Chapter IV of
the Act. We find substance in the stand taken by
learned Amicus Curiae and direct that they should
be made over to the Drugs Inspectors, if not
already made over, and it is for the Drugs
Inspector to take action on the same in accordance
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with the law. We must record that we are resorting
to our power under Article 142 of the Constitution
of India in this regard.
VI. Further, we would be inclined to believe that in
a number of cases on the understanding of the law
relating to the power of arrest as, in fact,
evidenced by the facts of the present case, police
officers would have made arrests in regard to
offences under Chapter IV of the Act. Therefore,
in regard to the power of arrest, we make it clear
that our decision that Police Officers do not have
power to arrest in respect of cognizable offences
under Chapter IV of the Act, will operate with
effect from the date of this Judgment.
VII. We further direct that the Drugs Inspectors, who
carry out the arrest, must not only report the
arrests, as provided in Section 58 of the CrPC, but
also immediately report the arrests to their
superior Officers.
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151. In view of our conclusions/directions and subject
to the same, we would, on the facts, uphold the impugned
Judgment and dismiss the Appeal. We record our appreciation
for the enlightening submissions of the learned Amicus
Curiae Shri S. Nagamuthu.
..................J.
(SANJAY KISHAN KAUL)
..................J.
(K.M. JOSEPH)
NEW DELHI,
AUGUST 28, 2020.
