Whether in respect of offences falling under chapter IV of the Act, 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

. = 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 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 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.

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,

2

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.

  1. 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

3

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.

4

FINDINGS OF THE HIGH COURT

  1. 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

5

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.”

  1. 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

6

procedure laid down under this Act forthwith

against the petitioner.

  1. 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.”

  1. 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

  1. 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

7

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.

8

  1. 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.

  1. 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

9

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

10

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,

11

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.

  1. 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

  1. The Act purports to achieve the object of regulating

the import, manufacture, distribution and sale of drugs and

12

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;

  1. 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,

13

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.

14

(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)

  1. 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

15

(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;

16

(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.”

17

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

18

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

19

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;

20

(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

21

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)

  1. 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)].

  1. Section 27 provides for penalty for manufacture, sale

etc. of drug in contravention of Chapter IV. It reads as

follows:

22

“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

23

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

24

(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:

25

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.”

  1. 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:

26

“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.

  1. 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.”

  1. 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.

  1. 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

29

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

  1. 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)

  1. 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;”

  1. 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

  1. ‘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.

  1. 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

  1. 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)

  1. 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.

  1. 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.”

  1. 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)

  1. 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.

  1. 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

  1. 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

  1. 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.

  1. 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.”

  1. 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.

  1. 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

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.”

  1. 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.

  1. 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

  1. 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.

  1. 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

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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

  1. 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.”

  1. 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.

  1. 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.

  1. 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

  1. 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

  1. 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

  1. 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

  1. 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.”

  1. 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.”

  1. 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.

  1. 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

  1. 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.”

  1. 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.

  1. 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

  1. …”
  2. 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)

  1. 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.

  1. 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.”

  1. 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.

  1. 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

  1. 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.”

  1. 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.”

  1. 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.

  1. 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.”

  1. 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?

  1. 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.”

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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)

  1. 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.”

  1. 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

  1. 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

  1. 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.

  1. 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

  1. 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

  1. 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)

  1. 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.

  1. 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

  1. 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

  1. 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.

  1. 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

  1. 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

  1. 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.

  1. 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).

  1. 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.”

  1. 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.”

  1. 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.

  1. 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.”

  1. 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.

  1. 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.”

  1. 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

  1. 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.].”

  1. 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.”

  1. 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.”

  1. 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

  1. 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.”

  1. 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

  1. 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

  1. 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

  1. 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.”

  1. 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

  1. 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.

  1. 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.

  1. 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.

  1. 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.”

  1. 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

  1. 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

  1. 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.

  1. 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.

  1. 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

  1. 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

  1. 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.

  1. 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.

  1. 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.

  1. 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

  1. 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)

  1. 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.”

  1. 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.”

  1. 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.”

  1. 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

  1. The Customs Act Sec. 105 Sec. 100 Sec. 101
  2. The Gold

(Control) Act

(now repealed)

Sec. 58 — Sec. 60

  1. The Prevention

of Food

Adulteration

Act.

Sec. 10(2) S. 6 to be r/w

S. 18 or the

Sea Customs

Act.

  1. 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

  1. 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)

  1. 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.

  1. 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

  1. 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

  1. 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.

  1. 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,

  1. 145

SPECIFIC STATUTES CONFERRING POWERS OF ARREST; COGNIZABLE

VERSUS NON-COGNIZABLE OFFENCE

  1. 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”

  1. 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)].”

  1. 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)

  1. 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

  1. 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.

  1. 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.”

  1. The provision for arrest is contained in the Second

Schedule to the Income-Tax Act as a mode of recovery of tax.

  1. 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.

  1. 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.”

  1. 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.”

  1. 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

  1. 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.”

  1. 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.”

  1. 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)

  1. 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

  1. 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.

  1. 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.

  1. 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.”

  1. 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)

  1. 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.

  1. 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

  1. 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.

  1. 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.

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  1. 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

  1. 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.

  1. 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,

169

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

170

on a Drug Inspector taking-up a matter falling under Chapter

IV of the Act, he is invested with the power to arrest.

  1. 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

171

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.

  1. 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

173

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.

  1. 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.

  1. 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

174

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.

175

  1. 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.

  1. 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,

176

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.

  1. 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.

  1. 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.

178

  1. 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.

  1. 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.

179

  1. 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.

  1. 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

  1. 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

181

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

182

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.

183

  1. 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.