(2020) 4 MLJ (Crl) Union of India v.

Ashok Kumar Sharma SC 243

(2020) 4 MLJ (Crl) 243 (SC) Act and also his duties, a Police Officer
LNIND 2020 SC 373 cannot register a FIR under Section 154 of
CrPC, in regard to cognizable offences
IN THE SUPREME COURT OF INDIA under Chapter IV of Act and he cannot
investigate such offences under provisions
Present:
of CrPC – As per provisions of Section
Hon’ble Mr. Justice Sanjay Kishan Kaul and 22(1)(d) of Act, an arrest can be made by
Hon’ble Mr. Justice K.M. Joseph Drugs Inspector in regard to cognizable
Crl. A. No. 200 of 2020 28th August, 2020 offences falling under Chapter IV of Act
without any warrant and otherwise treat-
Union of India ... Appellant
ing it as cognizable offence – Police Offi-
Versus cers do not have power to arrest in respect
Ashok Kumar Sharma and Others of cognizable offences under Chapter IV of
... Respondents Act – Drugs Inspectors, who carry out
arrest, must not only report arrests, as
FIR registration – Power of Police Officer provided in Section 58 of CrPC, but also
– Criminal Procedure Code, 1973 (CrPC), immediately report arrests to their supe-
Sections 154 and 190 – Drugs and Cosmet- rior Officers – Judgment of High court,
ics Act, 1940, Sections 18, 27 and 32 – First upheld – Appeal dismissed.
Respondent/Medical store owner stored
medicines without proper license, thereby, Held: There is no bar to Police Officer,
committing offence under Section 18 and however, to investigate and prosecute person
27 of Act and hence, FIR lodged – On where he has committed an offence, as stated
petition filed by First Respondent for under Section 32(3) of Act, i.e., if he has
quashing FIR, High Court quashed FIR committed any cognizable offence under any
and held that under Act, section 32 must be other law. Having regard to scheme of CrPC
scrupulously observed and it is mechanism and mandate of Section 32 of Act and on a
for prosecuting offences and there is no conspectus of powers which are available with
scope for registration of FIR under CrPC Drugs Inspector under Act and also his duties,
– Whether in respect of offences falling a Police Officer cannot register a FIR under
under chapter IV of Act, a FIR can be
Section 154 of CrPC, in regard to cognizable
registered under Section 154 of CrPC and
offences under Chapter IV of Act and he
case investigated – Whether Section 32 of
Act supplants procedure for investigation cannot investigate such offences under pro-
of offences under CrPC and taking of visions of CrPC. Having regard to provisions
cognizance of an offence under Section 190 of Section 22(1)(d) of Act, we hold that an
of CrPC – Whether Inspector under Act, arrest can be made by Drugs Inspector in
arrest a person in connection with an of- regard to cognizable offences falling under
fence under Chapter IV of Act – Held, Chapter IV of Act without any warrant and
there is no bar to Police Officer, however, to otherwise treating it as cognizable offence.
investigate and prosecute person where he Police Officers do not have power to arrest in
has committed an offence, as stated under respect of cognizable offences under Chapter
Section 32(3) of Act – Having regard to IV of Act, will operate with effect from date
scheme of CrPC and mandate of Section 32 of this Judgment. We further direct that Drugs
of Act and on a conspectus of powers which Inspectors, who carry out arrest, must not only
are available with Drugs Inspector under report arrests, as provided in Section 58 of
MLJ-CRIMINAL-10-11-2020 Postal Page No. 15
244 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
CrPC, but also immediately report arrests to State of A.P. v. Punati Ramulu AIR 1993 SC 2644
their superior Officers. [Para 150] [Para 67]
State of U.P. v. Durga Prasad LNIND 1974 SC 248
CASES CITED/REFERRED TO: (Considered) [Para 91]
Arnesh Kumar v. State of Bihar LNIND 2014 SC Sultana Begum v. Prem Chand Jain LNIND 1996
647 [Paras 80, 81] SC 2089 [Para 94]
Badaku Joti Savant v. State of Mysore LNIND Sunil Gupta v. Union of India 2000 (118) ELT 8
1966 SC 68 (Considered) [Para 91] P&H [Paras 123, 125, 127, 130]
Balkishan A. Devidayal v. State of Maharashtra
LNIND 1980 SC 298 (Considered) [Para 91] JUDGMENT
Bhavin Impex Pvt. Ltd. v. State of Gujarat 2010
(260) ELT 526 [Paras 124, 127, 130]
Mr. K.M. JOSEPH, J.
D.K. Basu v. State of West Bengal LNIND 1996 SC What is the interplay between the provi-
2177 [Paras 77, 139, 142, 150(IV)] sions of the Code of Criminal Procedure
Directorate of Enforcement v. Deepak Mahajan (hereinafter referred to as “CrPC” for short)
(1994) 3 SCC 440 and the Drugs and Cosmetics Act, 1940 (here-
[Paras 92, 97, 103, 109, 114, 121, 140, inafter referred to as “the Act” for short)?
143] Whether in respect of offences falling under
H.N. Rishbud and Inder Singh v. State of Delhi, chapter IV of the Act, a FIR can be registered
ETC. (1955) 1 MLJ 173 (Considered) under Section 154 of the CrPC and the case
[Para 54] investigated or whether Section 32 of the Act
Illias v. Collector of Customs, Madras LNIND supplants the procedure for investigation of
1968 SC 329 (Considered) [Para 91] offences under CrPC and the taking of cog-
Institute of Chartered Accountants of India v. nizance of an offence under Section 190 of the
Vimal Kumar Surana (2011) 1 MLJ (Crl) 437 CrPC? Still further, can the Inspector under
(Considered) [Paras 56, 58] the Act, arrest a person in connection with an
Jamiruddin Ansari v. Central Bureau of Investi- offence under Chapter IV of the Act.
gation LNIND 2009 SC 1148 [Para 50]
2. One Naushad Khan made an online
Jeewan Kumar Raut v. CBI (2009) 4 MLJ (Crl)
complaint on 22.2.2018. The Commissioner
1339 (Considered) [Para 7(a), 47]
(Food Protection and Drugs) directed enquiry
Lalita Kumari v. Government of Uttar Pradesh and the Drug Inspector, Mau, U.P. along with
(2013) 4 MLJ (Crl) SC 579 (Considered)
two others conducted an inspection at the
[Paras 65, 66, 110]
Sharda Narayan Clinic and Pharmacy and the
Om Parkash v. Union of India LNIND 2011 SC respondent No. 1 was directed to show papers
2553 [Paras 126, 131, 133]
in respect of medicines stored in the shop. The
Raj Kumar Karwal v. Union of India (1990) 1 MLJ first respondent according to the appellant
(Crl) 365 (Considered) [Para 91] stated that he did not have any license though
Ramesh Chandra Mehta v. State of W.B. LNIND he was the owner of the medical store and that
1968 SC 317 (Considered) [Para 91] he had stored the medicines without proper
Rini Johar v. State of M.P. (2016) 3 MLJ (Crl) 501 license. Thereby, he has committed offence
[Para 81] under Section 18 and 27 of the Act. On the
Satvinder Kaur v. State (Govt. of NCT of Delhi) basis of recovery made, an FIR came to be
(2000) 1 MLJ (Crl) 220 [Para 68] lodged on 22.6.2018 purporting to be under
State (NCT of Delhi) v. Sanjay LNIND 2014 SC Section 18 (a)(i) and Section 27 of the Act.
780 (Considered) [Paras 7(b), 59, 61] The complainant it may be noted is none other
MLJ-CRIMINAL-10-11-2020 Postal Page No. 16
(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 245
than the Drugs Inspector. The respondent filed persons defined under Section 32, who is
a writ petition for quashing the FIR and not to supposed to follow the entire procedure as
arrest him. The appellant, viz., the Union of narrated above. By no stretch of imagina-
India through the Secretary, Ministry of tion could the concerned Inspector have
Health and Family Welfare was not made a lodged an F.I.R. in this case and authorize
party to the writ petition. The respondents in the police to make investigation in this
the writ petition were the Superintendent of case.”
Police, the Station House Officer and the
4. It was further held that the lodging of the
Drugs Inspector, Mau in his personal capacity.
FIR is absolutely barred and FIR deserved to
This is apart from the State of U.P. which was
be quashed. The court also directed the issue
made the first respondent. It is pointed out by
of notice to the Inspector who had gone to
the appellant that the High Court issued notice
lodge the FIR, despite there being a special
seeking presence of the appellant. The High
Court by the impugned order had allowed the provision for launching the prosecution and
writ petition and quashed the FIR. In short, the explanation was sought. Still further it was
reasoning of the High Court is that under the directed as follows:
Act Section 32 must be scrupulously observed “23. We, accordingly, allow this petition
and it is the mechanism for prosecuting of- and quash the F.I.R. and simultaneously it
fences and there is no scope for registration of is further directed that notice shall be issued
a FIR under CrPC. to the concerned Inspector by the Compe-
Findings of the High Court tent Authority to show cause as to why he
deliberately lodged an F.I.R. when there is
3. The High Court referred to Section 32 of
specific provision for prosecuting the ac-
the Act and found that only an Inspector, a
Gazetted Officer conferred with authority, a cused by lodging a complaint. The expla-
person aggrieved or recognized consumer nation and action taken against him, shall
organization is eligible to make a complaint. be forwarded to the Court by the Competent
The court adverted to the other provisions of Authority within 8 weeks from today
the Act including Sections 22, 23, 25 and 27 through Registrar General of this Court
apart from Section 32 and found that the Act who shall place the same before us for
clearly lays down a complete code for the trial perusal in our chambers as soon as the same
of offences committed in respect of Drugs and is received by Registrar General. We fur-
Cosmetics. The Act was a special Act enacted ther grant liberty to the respondent no. 4 to
for the trial of offences committed under the initiate criminal proceedings in accordance
Act. No other provision would be applicable with the procedure laid down under this Act
as the Act had an overriding effect over all forthwith against the petitioner.
Acts. The provisions of the CrPC would not be 24. Registrar General to sent a certified
applicable except as provided in the Act itself. copy of this order to Principal Secretary,
Since the lodging of an FIR is under Section Food Safety and Drug Administration,
154 of the CrPC, the said provision would not Government of U.P. for his necessary in-
be invokable. It further held as follows: formation and follow up action. It is further
“21. In this Act, the procedure for launching directed that Principal Secretary, Food
a prosecution has been clearly laid down Safety and Drug Administration, Govern-
saying that prosecution under this Act can ment of U.P. shall notify such direction to
be initiated only on a complaint made by an all the D. Ms. of the State so that no such
authorized Inspector or other authorized error recurs.”
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246 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
5. We heard Ms. Pinky Anand, learned (2009) 4 MLJ (Crl) 1339 : LNIND 2009 SC
Additional Solicitor General appearing on 1418 : (2009) 7 SCC 526;
behalf of the appellant. We also heard Shri S. b. State (NCT of Delhi) v. Sanjay LNIND
Nagamuthu, learned Senior Counsel, whom 2014 SC 780 : (2014) 9 SCC 772.
we appointed as Amicus Curiae.
8. He also referred to the judgment of this
Submissions of the Appellant
Court in Kanwar Pal Singh v. State of Uttar
6. Ms. Pinky Anand, learned Additional Pradesh and Another in Criminal Appeal No.
Solicitor General would submit that the High 1920 of 2019. He would submit that as far as
Court was in error in holding that FIR under offences falling within the ambit of Section
CrPC cannot be lodged in respect of the Act. 36AC are concerned, a FIR under Section 154
She drew our attention to Section 36 AC of the of the CrPC is not contemplated and cannot be
Act. Thereunder, as we shall see in greater registered. The mere fact that Section 36 AC
detail, certain offences under the Act have of the Act declares certain offences under the
been declared to be cognizable offences. She
Act cognizable would not mean that the
would point out that once these offences are
scheme of Section 32 of the Act can be
declared as cognizable offences it is incon-
ceivable that a FIR cannot be lodged under the jettisoned. He would point out that prosecu-
CrPC in regard to the same. She drew our tion can be launched only in the manner
attention to Section 4 and 5 of the CrPC. She provided under the Act in regard to offences
contended that there is nothing in the Act under the Act covered by Section 32. The
which detracted from a FIR being registered institution of the prosecution can be only at the
in regard to offences under the Act. Regarding instance of the persons named in the said
the consequences flowing from Section 32 of section. He points out that Section 32 came to
the Act, it is her contention that the High Court be amended at the same time as Section 36 AC
fell in error in ignoring Section 36AC of the was inserted. Nothing prevented the Legisla-
Act. It is her complaint that the Act contem- ture if it so desired to provide that the offences
plated curbing of various highly undesirable falling under Section 32 should be investi-
activities posing a great threat to the health gated in the manner provided under the pro-
and the safety of citizens as can be gleaned visions of the CRPC namely by lodging a FIR
from the grave offences which have been and after investigating the offences by filing a
created under the Act. In fact, it is pointed out report within the meaning of Section 173 of
that many cases where investigation was car- the CrPC. The fact that such a procedure was
ried out on the basis of FIR lodged under the not contemplated by the Legislature is clear
Act will witness unmerited burial and offend- from the fact that under the pre amended
ers would go scot free if the impugned judg- regime, three out of four categories mentioned
ment of the High Court is allowed to stand. in the present amended avtaar were already
There is no bar under the Act to the registra- present and the amendment added only one
tion of FIR under CrPC. more to the categories of persons who alone
could institute the prosecution. In fact, as
7. Shri Nagamuthu, learned senior counsel regards Section 36 AC declaring certain of-
submitted that having regard to the scheme of fences under the Act to be cognizable, he drew
the Act and Section 32, in particular, the our attention to the second part of the first
judgment of the High Court is only to be schedule of the CrPC. He contended inter alia
supported. He drew our attention to the fol- that even without the aid of Section 36 AC, the
lowing judgments: offences under Section 27(1)(a) and 27(1)(c)
a. Jeewan Kumar Raut and Another v. CBI were cognizable having regard to the term of
MLJ-CRIMINAL-10-11-2020 Postal Page No. 18
(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 247
imprisonment provided as punishment for the “3 Definitions. —In this Act, unless there is
same. Nothing turned on the offence being anything repugnant in the subject or
cognizable except apprehension of the of- context,—
fender without the aid of a warrant. He would (e) “Inspector” means—
submit that in regard to the offences embraced
(i) in relation to Ayurvedic, Siddha or Unani
by Section 32, an F.I.R. within the meaning of
drug, an Inspector appointed by the Central
the CrPC is not contemplated but he was at Government or a State Government under
pains to point out that this did not stand in the section 33G; and
way of an F.I.R. being lodged if the offence
constituted a distinct offence under any other (ii) in relation to any other drug or cosmetic,
law. In such a scenario, while the lodging of an Inspector appointed by the Central Gov-
the F.I.R. in regard to the offences covered by ernment or a State Government under sec-
Section 32 would be impermissible the Offi- tion 21;
cer would be within his powers if he were to 11. Chapter III contains provisions which
register an F.I.R. and proceed to investigate provide for deeming definitions of mis-
offences other than the offence falling under branded drugs, adulterated drugs, spurious
Section 32, should they be cognizable. In this drugs, misbranded cosmetics and spurious
case, he would submit that the offence alleged cosmetics for the purpose of Chapter III.
is under Section 27 (1)(b) of the Act which Section 13 provides for offences arising out of
squarely fell within the four walls of Section imports. Chapter IV falls under the chapter
32. So, also Section 18 prohibiting certain acts heading “Manufacture, Sale and Distribution
fell in Chapter IV of the Act, thus, attracting of Drugs and Cosmetics”. Interestingly, mis-
Section 32. In regard to these offences, Sec- branded drugs, adulterated drugs, spurious
tion 32 constitutes a bar for the registration of drugs, misbranded cosmetics and spurious
an F.I.R. under CrPC and the investigation as cosmetics, adulterated cosmetics are defined
an ordinary case. by provisions found in Chapter IV for the
9. In reply to submission of learned Amicus purpose of Chapter IV. Section 18 contem-
Curiae, Ms. Pinky Anand, learned Additional plates that from such date as may be fixed by
Solicitor General, drew our attention to Sec- the State Government, manufacture for sale or
tion 36AC and reiterated that neither the CrPC distribution, or to sell, or stock or exhibit or
nor the Act constitute a stumbling block to the offer for sale or distribution of drugs mis-
lodging of an FIR. She also drew our attention branded, adulterated, spurious drugs and cos-
to Section 13 of the Act. It is pointed out that metics inter alia are prohibited. Section 21
Section 13 falls under Chapter III. She con- reads as follows:
tended that the Act contemplated a Special “21. Inspectors.—
Court to deal with the offences under the Act. (1) The Central Government or a State
The procedure leading to the institution of the Government may by notification in the
prosecution case must be governed by the Official Gazette, appoint such persons as it
provisions of the CrPC, runs her argument. thinks fit, having the prescribed qualifica-
Analysis tions, to be Inspectors for such areas as may
10. The Act purports to achieve the object be assigned to them by the Central Gov-
of regulating the import, manufacture, distri- ernment or the State Government, as the
bution and sale of drugs and cosmetics. The case may be.
word Drugs has been defined in Section 3(b). (2) The powers which may be exercised by
Section 3(e) defines Inspector: an Inspector and the duties which may be
MLJ-CRIMINAL-10-11-2020 Postal Page No. 19
248 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
performed by him, the drugs or [classes of fied in Schedule C during the tenure of their
drugs or cosmetics or classes of cosmetics] services as Drugs Inspectors; shall be
in relation to which and the conditions, authorised to inspect the manufacture of the
limitations or restrictions subject to which, substances mentioned in Schedule C:
such powers and duties may be exercised or Provided further that the requirement as to
performed shall be such as may be pre- the academic qualification shall not apply
scribed. to persons appointed as Inspectors on or
(3) No person who has any financial inter- before the 18th day of October, 1993.”
est in the import, manufacture or sale of
Rule (51) deals with duties of Inspectors in
drugs or cosmetics shall be appointed to be
regard to sale. It reads as follows:
an Inspector under this section.
“51. Duties of Inspectors of premises li-
(4) Every Inspector shall be deemed to be
censed for sale.—Subject to the instruc-
a public servant within the meaning of
tions of the controlling authority, it shall be
section 21 of the Indian Penal Code (45 of
the duty of an Inspector authorized to
1860), and shall be officially subordinate to
inspect premises licensed for the sale of
such authority, having the prescribed quali-
drugs—
fications,] as the Government appointing
him may specify in this behalf.” (1) to inspect not less than once a year all
establishments licensed for the sale of
(Emphasis supplied)
drugs within the area assigned to him;
12. It is necessary to notice the rules (2) to satisfy himself that the conditions of
relevant in this regard. Rule (49) deals with the licences are being observed;
qualifications of Inspectors. It reads as
follows:- (3) to procure and send for test or analysis,
if necessary, imported packages which he
“49. Qualifications of Inspectors. —A per- has reason to suspect contain drugs being
son who is appointed an Inspector under the sold or stocked or exhibited for sale in
Act shall be a person who has a degree in contravention of the provisions of the Act
Pharmacy or Pharmaceutical Sciences or or rules thereunder;
Medicine with specialisation in Clinical
Pharmacology or Microbiology from a (4) to investigate any complaint in writing
University established in India by law: which may be made to him;
Provided that only those Inspectors— (5) to institute prosecutions in respect of
(i) who have not less than 18 months’ breaches of the Act and rules thereunder;
experience in the manufacture of at least (6) to maintain a record of all inspections
one of the substances specified in Schedule made and action taken by him in the
C, or performance of his duties, including the
(ii) who have not less than 18 months’ taking of samples and the seizure of stocks,
experience in testing of at least one of the and to submit copies of such record to the
substances in Schedule C in a laboratory controlling authority;
approved for this purpose by the licensing (7) to make such enquiries and inspections
authority, or as may be necessary to detect the sale of
(iii) who have gained experience of not less drugs in contravention of the Act;
than three years in the inspection of firm (8) when so authorized by the State Gov-
manufacturing any of the substances speci- ernment, to detain imported packages
MLJ-CRIMINAL-10-11-2020 Postal Page No. 20
(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 249
which he has reason to suspect contain made by the Central Government in this
drugs, the import of which is prohibited.” behalf, an Inspector may, within the local
limits of the area for which he is
Rule (52) deals with duties of Inspectors in
appointed,—” (a) inspect,—”
regard to manufacturer. It reads as follows:
(i) any premises wherein any drug or cos-
“52. Duties of inspectors specially
authorised to inspect the manufacture of metic is being manufactured and the means
drugs or cosmetics. —Subject to the in- employed for standardising and testing the
structions of the controlling authority it drug or cosmetic;
shall be the duty of an Inspector authorized (ii) any premises wherein any drug or
to inspect the manufacture of drugs— cosmetic is being sold, or stocked or ex-
(1) to inspect [not less than once a year], all hibited or offered for sale, or distributed;
premises licensed for manufacture of drugs (b) take samples of any drug or cosmetic,—
or cosmetics within the area allotted to him
(i) which is being manufactured or being
to satisfy himself that the conditions of the
licence and provisions of the Act and Rules sold or is stocked or exhibited or offered for
thereunder are being observed; sale, or is being distributed;
(2) in the case of establishments licensed to (ii) from any person who is in the course of
manufacture products specified in Sched- conveying, delivering or preparing to de-
ules C and C (1) to inspect the plant and the liver such drug or cosmetic to a purchaser
process of manufacture, the means em- or a consignee;
ployed for standardizing and testing the (c) at all reasonable times, with such assis-
drug, the methods and place of storage, the tance, if any, as he considers necessary,—
technical qualifications of the staff em- (i) search any person, who, he has reason to
ployed and all details of location, construc- believe, has secreted about his person, any
tion and administration of the establish- drug or cosmetic in respect of which an
ment likely to affect the potency or purity offence under this Chapter has been, or is
of the product; being, committed; or
(3) to send forthwith to the controlling (ii) enter and search any place in which he
authority after each inspection a detailed has reason to believe that an offence under
report indicating the conditions of the li- this Chapter has been, or is being, commit-
cence and provisions of the Act and rules ted; or
thereunder which are being observed and
(iii) stop and search any vehicle, vessel or
the conditions and provisions, if any, which
other conveyance which, he has reason to
are not being observed;
believe, is being used for carrying any drug
(4) to take samples of the drugs manufac- or cosmetic in respect of which an offence
tured on the premises and send them for test under this Chapter has been, or is being,
or analysis in accordance with these Rules; committed, and order in writing the person
(5) to institute prosecutions in respect of in possession of the drug or cosmetic in
breaches of the Act and rules thereunder.” respect of which the offence has been, or is
being, committed, not to dispose of any
Section 22 deals with the powers of the
stock of such drug or cosmetic for a speci-
Inspector. reads as follows: fied period not exceeding twenty days, or,
“22. Powers of Inspectors.—(1) Subject to unless the alleged offence is such that the
the provisions of section 23 and of any rules defect may be removed by the possessor of
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250 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
the drug or cosmetic, seize the stock of such conferred upon by or under this Chapter or
drug or cosmetic and any substance or refuses to produce any record, register or
article by means of which the offence has other document when so required under
been, or is being, committed or which may clause (cca) of sub-section (1), he shall be
be employed for the commission of such punishable with imprisonment which may
offence; extend to three years or with fine, or with
(cc) examine any record, register, docu- both.”
ment or any other material object found
with any person, or in any place, vehicle, (Emphasis supplied)
vessel or other conveyance referred to in 13. Section 23 provides for the procedure to
clause (c), and seize the same if he has be followed by the Inspector. It includes the
reason to believe that it may furnish evi- tendering of fair price when a sample is taken
dence of the commission of an offence of a drug or cosmetic under the Chapter. There
punishable under this Act or the Rules made are various other provisions regarding the
thereunder;
procedure to be followed by the Inspector
(cca) require any person to produce any which includes seizure of record/ register,
record, register, or other document relating documents or other material objects and the
to the manufacture for sale or for distribu- need to notify a judicial Magistrate [See
tion, stocking, exhibition for sale, offer for Section 23(6)].
sale or distribution of any drug or cosmetic
in respect of which he has reason to believe 14. Section 27 provides for penalty for
that an offence under this Chapter has been, manufacture, sale etc. of drug in contravention
or is being, committed; of Chapter IV. It reads as follows:
(d) exercise such other powers as may be “27. Penalty for manufacture, sale, etc., of
necessary for carrying out the purposes of drugs in contravention of this Chapter.-
this Chapter or any rules made thereunder. Whoever, himself or by any other person on
22(2) The provisions of the Code of Crimi- his behalf, manufactures for sale or for
nal Procedure, 1973 (2 of 1974)] shall, so distribution, or sells, or stocks or exhibits or
far as may be, apply to any search or seizure offers for sale or distributes,-
under this Chapter as they apply to any (a) any drug deemed to be adulterated
search or seizure made under the authority under section 17A or spurious under section
of a warrant issued under section 94 of the 17B and which when used by any person
said Code. for or in the diagnosis, treatment, mitiga-
(2A) Every record, register or other docu- tion, or prevention of any disease or disor-
ment seized under clause (cc) or produced der is likely to cause his death or is likely
under clause (cca) shall be returned to the to cause such harm on his body as would
person, from whom they were seized or amount to grievous hurt within the meaning
who produce the same, within a period of of section 320 of the Indian Penal Code (45
twenty days of the date of such seizure or of 1860), solely on account of such drug
production, as the case may be, after copies being adulterated or spurious or not of
thereof or extracts therefrom certified by standard quality, as the case may be, shall
that person, in such manner as may be be punishable with imprisonment for a term
prescribed, have been taken. which shall not be less than ten years but
(3) If any person wilfully obstructs an which may extend to imprisonment for life
Inspector in the exercise of the powers and shall also be liable to fine which shall
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(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 251
not be less than ten lakh rupees or three (g) the paternal grandparent if no parent of
times value of the drugs confiscated, the member is alive;]
whichever is more: (b) any drug--
Provided that the fine imposed on and (i) deemed to be adulterated under section
released from, the person convicted under 17A, but not being a drug referred to in
this clause shall be paid, by way of com- clause (a), or
pensation, to the person who had used the
adulterated or spurious drugs referred to in (ii) without a valid licence as required
this clause: under clause (c) of section 18, shall be
punishable with imprisonment for a term
Provided further that where the use of the which shall not be less than three years but
adulterated or spurious drugs referred to in which may extend to five years and with
this clause has caused the death of a person fine which shall not be less than one lakh
who used such drugs, the fine imposed on rupees or three times the value of the drugs
and realised from, the person convicted confiscated, whichever is more:
under this clause, shall be paid to the
relative of the person who had died due to Provided that the Court may, for any ad-
the use of the adulterated or spurious drugs equate and special reasons to be recorded in
referred to in this clause. the judgment, impose a sentence of impris-
onment for a term of less than three years
Explanation.--For the purposes of the sec- and of fine of less than one lakh rupees;
ond proviso, the expression “relative”
means-- (c) any drug deemed to be spurious under
section 17B, but not being a drug referred
(i) spouse of the deceased person; or to in clause (a) shall be punishable with
(ii) a minor legitimate son, and unmarried imprisonment for a term which shall not
legitimate daughter and a widowed mother; less than seven years but which may extend
or to imprisonment for life and with fine
(iii) parent of the minor victim; or which shall not be three lakh rupees or three
times the value of the drugs confiscated,
(iv) if wholly dependent on the earnings of
the deceased person at the time of his death, whichever is more:
a son or a daughter who has attained the age Provided that the Court may, for any ad-
of eighteen years; or equate and special reasons, to be recorded
(v) any person, if wholly or in part, depen- in the judgment, impose a sentence of
dent on the earnings of the deceased person imprisonment for a term of 8 [less than
at the time of his death,-- seven years but not less than three years and
of fine of less than one lakh rupees];
(a) the parent; or
(d) any drug, other than a drug referred to
(b) a minor brother or an unmarried sister; in clause (a) or clause (b) or clause (c), in
or contravention of any other provision of this
(c) a widowed daughter-in-law; or Chapter or any rule made thereunder, shall
(d) a widowed sister; or be punishable with imprisonment for a term
which shall not be less than one year but
(e) a minor child of a pre-deceased son; or which may extend to two years and with
(f) a minor child of a pre-deceased daughter fine which shall not be less than twenty
where no parent of the child is alive; or thousand rupees:
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252 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
Provided that the Court may for any ad- of Inspectors by the Central Government or
equate and special reasons to be recorded in the State Government. Section 33H makes the
the judgment impose a sentence of impris- provision of Section 22, 23, 24 and 25 and the
onment for a term of less than one year.” rules, if any, thereunder applicable in respect
of Ayurvedic, Siddha and Unani drugs. Sec-
15. Sections 27A, 28, 28A, 28B and 29 tion 33M reads as follows:
provide for other offences. Section 30 con-
“33M. Cognizance of offences.—
templates penalty in the case of subsequent
offences. Section 31 deals with confiscation. (1) No prosecution under this Chapter shall
Section 32 which is at the center stage of the be instituted except by an Inspector [with
controversy reads as follows: the previous sanction of the authority speci-
fied under sub-section (4) of section 33G.
“32 Cognizance of offences. — (1) No
prosecution under this Chapter shall be (2) No Court inferior to that [of a Metro-
instituted except by— politan Magistrate or of a Judicial Magis-
trate of the first class] shall try an offence
(a) an Inspector; or punishable under this Chapter.”
(b) any gazetted officer of the Central 17. The last Chapter of the Act is Chapter
Government or a State Government V. It bears the Chapter heading “Miscella-
authorised in writing in this behalf by the neous”. Section 36 declares that any Metro-
Central Government or a State Government politan Magistrate or Judicial Magistrate of
by a general or special order made in this First Class may pass a sentence in excess of
behalf by that Government; or the powers under the CrPC. Section 36A
(c) the person aggrieved; or provides that certain offences are to be tried
(d) a recognised consumer association summarily.
whether such person is a member of that 18. Section 36AB provides for Special
association or not. Courts. It declares that the Central Govern-
(2) Save as otherwise provided in this Act, ment or the State Government in consultation
no court inferior to that of a Court of with the Chief Justice of the High Court, shall,
Session shall try an offence punishable for certain offences designate one or more
under this Chapter. Court of Sessions as a Special Court or Special
Courts. Sub-section (2) provides that the Spe-
(3) Nothing contained in this Chapter shall cial Court may try an offence other than the
be deemed to prevent any person from offences covered by sub-section (1) which
being prosecuted under any other law for may be charged against the accused at the
any act or omission which constitutes an same trial. Section 36AC around which much
offence against this Chapter.” arguments were addressed reads as follows:
Section 32B provides for compounding of “36AC. Offences to be cognizable and
certain offences. non-bailable in certain cases. —(1) Not-
16. Chapter IV-A provides for “Provisions withstanding anything contained in the
relating to Ayurvedic, Siddha and Unani Code of Criminal Procedure, 1973 (2 of
Drugs”. It also contains provisions for the 1974),—
purpose of Chapter IV-A dealing with deemed (a) every offence, relating to adulterated or
definitions of Misbranded drugs, Adulterated spurious drug and punishable under clauses
drugs, Spurious drugs and are created of- (a) and (c) of sub-section (1) of section 13,
fences. Section 33G provides for appointment clause (a) of sub-section (2) of section 13,
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(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 253
sub-section (3) of section 22, clauses (a) that section includes also a reference to a
and (c) of section 27, section 28, section “Special Court” designated under section
28A, section 28B and sub-sections (1) and 36AB.”
(2) of section 30 and other offences relating
Section 36AD also being relevant is re-
to adulterated drugs or spurious drugs, shall
ferred to:
be cognizable.
“36AD Application of Code of Criminal
(b) no person accused, of an offence pun-
Procedure, 1973 to proceedings before
ishable under clauses (a) and (c) of sub-
Special Court. —
section (1) of section 13, clause (a) of
sub-section (2) of section 13, sub-section (1) Save as otherwise provided in this Act,
(3) of section 22, clauses (a) and (c) of the provisions of the Code of Criminal
section 27, section 28, section 28A, section Procedure, 1973 (2 of 1974) (including the
28B and sub-sections (1) and (2) of section provisions as to bails or bonds), shall apply
30 and other offences relating to adulter- to the proceedings before a Special Court
ated drugs or spurious drugs, shall be and for the purposes of the said provisions,
released on bail or on his own bond the Special Court shall be deemed to be a
unless— Court of Session and the person conducting
(i) the Public Prosecutor has been given an the prosecution before the Special Court,
opportunity to oppose the application for shall be deemed to be a Public Prosecutor:
such release; and Provided that the Central Government or
(ii) where the Public Prosecutor opposes the State Government may also appoint, for
the application, the Court is satisfied that any case or class or group of cases, a
there are reasonable grounds for believing Special Public Prosecutor.
that he is not guilty of such offence and that (2) A person shall not be qualified to be
he is not likely to commit any offence while appointed as a Public Prosecutor or a Spe-
on bail: cial Public Prosecutor under this section
Provided that a person, who, is under the unless he has been in practice as an advo-
age of sixteen years, or is a woman or is sick cate for not less than seven years, under the
or infirm, may be released on bail, if the Union or a State, requiring special knowl-
Special Court so directs. edge of law.
(2) The limitation on granting of bail speci- (3) Every person appointed as a Public
fied in clause (b) of sub-section (1) is in Prosecutor or a Special Public Prosecutor
addition to the limitations under the Code under this section shall be deemed to be a
of Criminal Procedure, 1973 (2 of 1974) or Public Prosecutor within the meaning of
any other law for the time being in force on clause (u) of section 2 of the Code of
granting of bail. Criminal Procedure, 1973 (2 of 1974) and
(3) Nothing contained in this section shall the provisions of that Code shall have effect
be deemed to affect the special powers of accordingly.”
the High Court regarding bail under section
439 of the Code of Criminal Procedure, Relevant Provisions of the CrPC
1973 (2 of 1974) and the High Court may 19. Section 2(a) defines “bailable offence”
exercise such powers including the power as offence shown as such in the First Schedule,
under clause (b) of sub-section (1) of that or which is made bailable under any other law
section as if the reference to “Magistrate” in for the time being in force. “Non-bailable
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254 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
offence” means any other offence. ‘Cogni- (1) All offences under the Indian Penal
zable offence’ is defined in Section 2(c). It Code (45 of 1860 ) shall be investigated,
reads as follows: inquired into, tried, and otherwise dealt
“2(c) “cognizable offence” means an of- with according to the provisions hereinafter
fence for which, and” cognizable case” contained.
means a case in which, a police officer may, (2) All offences under any other law shall
in accordance with the First Schedule or be investigated, inquired into, tried, and
under any other law for the time being in otherwise dealt with according to the same
force, arrest without warrant;” provisions, but subject to any enactment for
(Emphasis supplied) the time being in force regulating the man-
ner or place of investigating, inquiring into,
20. Section 2(d) defines ‘complaint’. It trying or otherwise dealing with such of-
reads as follows:- fences.
“2(d) “complaint” means any allegation 5. Saving.- Nothing contained in this Code
made orally or in writing to a Magistrate, shall, in the absence of a specific provision
with a view to his taking action under this to the contrary, affect any special or local
Code, that some person, whether known or law for the time being in force, or any
unknown, has committed an offence, but special jurisdiction or power conferred, or
does not include a police report. any special form of procedure prescribed,
Explanation.- A report made by a police by any other law for the time being in
officer in a case which discloses, after force.”
investigation, the commission of a non- 23. Chapter XII comes under the heading
cognizable offence shall be deemed to be a ‘Information to the Police and their Powers to
complaint; and the police officer by whom Investigate’. Section 154 inter alia provides
such report is made shall be deemed to be that every information relevant to the com-
the complainant;” mission of a cognizable offence given orally
21. Section 2(h) defines investigation as to an officer in charge of a Police Station shall
follows: be reduced to writing by him or under his
direction, and be read over to informant.
“2(h) “investigation” includes all the pro- Every such information whether given in
ceedings under this Code for the collection writing or reduced to writing as aforesaid shall
of evidence conducted by a police officer or be signed by the person giving it. The sub-
by any person (other than a Magistrate) stance of the same is to be entered in a book
who is authorised by a Magistrate in this to be kept by such officer in such form as may
behalf.” be prescribed. Section 155 deals with infor-
(Emphasis supplied) mation as to non-cognizable cases and the
manner of investigation of such cases. No
22. ‘Police report’ is defined in Section 2 (r) police officer can investigate a non-
as meaning a report forwarded by a police cognizable offence without the order of the
officer to a Magistrate under sub-section (2) of Magistrate having power to try such case or
Section 173. Sections 4 and 5 being relevant, commit such case for trial. Section 156 reads
we advert to the same. as under:
“4. Trial of offences under the Indian Penal “156. Police officer’s power to investigate
Code and other laws.- cognizable case. –
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(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 255
(1) Any officer in charge of a police station (1) of such offences as are within his
may, without the order of a Magistrate, competence to inquire into or try.”
investigate any cognizable case which a
26. Chapter XV deals with Complaints to
Court having jurisdiction over the local
Magistrates. Section 202 having been referred
area within the limits of such station would
by the learned Amicus Curiae is extracted:
have power to inquire into or try under the
provisions of Chapter XIII. “202. Postponement of issue of process.-(1)
Any Magistrate, on receipt of a complaint
(2) No proceeding of a police officer in any of an offence of which he is authorised to
such case shall at any stage be called in take cognizance or which has been made
question on the ground that the case was over to him under section 192, may, if he
one which such officer was not empowered thinks fit, postpone the issue of process
under this section to investigate. against the accused, and either inquire into
(3) Any Magistrate empowered under sec- the case himself or direct an investigation to
tion 190 may order such an investigation as be made by a police officer or by such other
above-mentioned”. person as he thinks fit, for the purpose of
deciding whether or not there is sufficient
(Emphasis supplied) ground for proceeding: Provided that no
24. Section 157 provides for Procedure for such direction for investigation shall be
Investigation. The limitations for the use of made,-
the statement given under Section 161 are (a) where it appears to the Magistrate that
spelt out in Section 162. Section 173 provides the offence complained of is triable exclu-
for the report to be given on completion of sively by the Court of Session; or
investigation.
(b) where the complaint has not been made
25. Chapter XIV deals with the “Conditions by a Court, unless the complainant and the
requisite for Initiation of Proceedings”. Sec- witnesses present (if any) have been exam-
tion 190 reads as follows: ined on oath under section 200.
“190. Cognizance of offences by (2) In an inquiry under sub-section (1), the
Magistrates.- Magistrate may, if he thinks fit, take evi-
(1) Subject to the provisions of this Chap- dence of witnesses on oath:
ter, any Magistrate of the first class, and any Provided that if it appears to the Magistrate
Magistrate of the second class specially that the offence complained of is triable
empowered in this behalf under sub-section exclusively by the Court of Session, he shall
(2), may take cognizance of any offence- call upon the complainant to produce all his
(a) upon receiving a complaint of facts witnesses and examine them on oath.
which constitute such offence; (3) If an investigation under sub-section (1)
(b) upon a police report of such facts; is made by a person not being a police
officer, he shall have for that investigation
(c) upon information received from any
all the powers conferred by this Code on an
person other than a police officer, or upon
officer-in-charge of a police station except
his own knowledge, that such offence has
the power to arrest without warrant.”
been committed.
(Emphasis supplied)
(2) The Chief Judicial Magistrate may
empower any Magistrate of the second 27. Chapter XVI comes under the chapter
class to take cognizance under sub-section heading “Commencement of Proceedings be-
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256 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
fore Magistrates”. Section 204 deals with the offences under the First Schedule. The first
“Issue of Process” in a case where the Mag- part of the First Schedule deals with offences
istrate taking cognizance is of the view that under the Indian Penal Code. The second part,
there is sufficient ground for proceeding in the as it were, deals with classification of offences
matter. It may also be relevant to notice part against other laws. It reads as follows:
II of the First Schedule to the CrPC. It must
be remembered that cognizable offence has “Classification of Offences against other
been defined in terms of the classification of laws
Offence Cognizable or Bailable or By what Court
non-cognizable non-bailable triable
1 2 3 4
If punishable with death, Cognizable Non-bailable Court of Session.
imprisonment for life, or
imprisonment for more than 7 years;
If punishable with imprisonment for 3 Cognizable Non-bailable Magistrate of the
years, and upwards but not more than first class.
7 years.
If punishable with imprisonment for Non-cognizable Bailable Any Magistrate.
less than 3 years or with fine only.
28. Section 4(2) of the CrPC declares that overwhelm, in particular, any special proce-
all offences under any law other than the IPC dure provided under the Act, we have no
shall be investigated, inquired into and tried hesitation in repelling the same. The purport
and otherwise dealt with according to the of Section 2 appears to be that Legislature
CrPC. This is however, subject to any enact- intended to keep alive the provisions of the
ment for the time being in force which pro- Dangerous Drugs Act, 1930. It would con-
vides otherwise in the matter of, the manner or tinue to hold sway despite the enactment of the
place of investigation inter alia in regard to Act. If there are any other provisions of
offences under any law other than the IPC. cognate laws dealing with the subjects dealt
The purport of Section 5 is this: with by the Act, the operation of those Acts
If any special law or local law for the time was to be preserved. The Act does not provide
being in force contemplates any special for any express repeal of any enactment.
jurisdiction or power or any special form of Nothing further needs to be stated about
procedure prescribed, unless there is some- Section 2 and we are of the view that it does
thing to the contrary, to be found, it is the not have any further repercussion on the issue
provisions of the special law or the local at hand.
law which would prevail.
Section 32 of the Act
Impact of Section 2 of the Act 30. Coming to Section 32 of the Act, as
29. We have noticed that Section 2 of the already noted by us it falls in chapter IV.
Act declares that the provisions of the Act Inspectors are appointed by the Central Gov-
shall be in addition to and not in derogation of ernment or the State Government from per-
the Dangerous Drugs Act 1930 and any other sons possessing prescribed qualifications un-
law for the time being in force. As far as der a notification. Section 21 contemplates
Section (2) of the Act is concerned if the prescribing under rules the powers which may
attempt of the appellant is to contend that it be exercised by the Inspectors apart from the
imports the provisions in CrPC which tends to duties which may be performed by him inter
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(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 257
alia. Section 22 of the Act provides for power any act or omission which constitutes an
of search by the Inspectors. They have power offence against this Chapter.”
to inspect any premise, take samples, powers
32. It will be noticed at once that Section
of search, examine any record, register, ma- 190 of the CrPC also has a title ‘Cognizance
terial object and seize them. The Legislature of Offence by Magistrate’. Cognizance under
has undoubtedly applied the provisions of the Section 190 is contemplated in three different
CrPC in regard to searches under the Act. modes. They are - (1) complaints of facts
Section 23 elaborately provides for procedure constituting such offences, (2) police report of
to be adopted by Inspectors. such facts, (3) upon any information received
31. Section 32 falling under section heading from a person other than a Police Officer or
‘Cognizance of offences’ declares, in unam- upon a court being possessed of knowledge
biguous words, that prosecution, under Chap- about the commission of the offence. In other
ter IV, can be instituted only by (1) an Inspec- words, where the court takes cognizance suo
tor (2) any gazette officer of the Central motu. A comparison between Section 32 of the
Government or State Government authorised Act and 190 of the CrPC dealing with cog-
in writing by the respective Government by a nizance of offences, makes it abundantly clear
that the Law Giver has provided for distinct
general or special order made in this behalf
modes in regard to prosecuting of the offences
by that Government (3) the person aggrieved
under the general law, viz., the CrPC and the
(4) a recognised consumer association special provision, as contained in Section 32
whether such person is a member of that of the Act.
association or not. Section 32 further pro-
claims that unless it is otherwise provided, no 33. Section 193 of the CrPC reads as
court inferior to a court of session shall try an follows:
offence punishable under Chapter IV. Section “193. Cognizance of offences by Courts of
32(3) makes it clear that nothing in chapter IV Session. Except as otherwise expressly pro-
would stand in the way of the person being vided by this Code or by any other law for
prosecuted against under any other law for any the time being in force, no Court of Session
act or omission which constitutes an offence shall take cognizance of any offence as a
against this Chapter. Section 32 was substi- Court of original jurisdiction unless the
tuted by Act 22 of 2008. Prior to the substi- case has been committed to it by a Magis-
tution it read as follows: trate under this Code.”
“32 Cognizance of offences. — (1) No 34. Section 195 prohibits the Court from
prosecution under this Chapter shall be taking any cognizance of the offences men-
instituted except by an Inspector or by the tioned therein except on the complaint in
person aggrieved or by a recognised con- writing by the persons named therein.
sumer association whether such person is a 35. Section 198A and Section 199 likewise
member of that association or not. permit the courts to take cognizance only upon
(2) No court inferior to that of a Metro- the complaint made by the persons mentioned
politan Magistrate or of a Judicial Magis- therein. Similarly, Section 199 taboos cogni-
trate of the first class shall try an offence zance of offence of defamation except on the
punishable under this Chapter. complaint made by some aggrieved person.
(3) Nothing contained in this Chapter shall 36. Section 36AD of the Act applies the
be deemed to prevent any person from provisions of the CrPC except where it is
being prosecuted under any other law for otherwise provided in the Act in regard to the
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258 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
proceedings before the Special Court and the any recognised consumer association,
Special Court is deemed to be the Court of whether such person is a member of that
Sessions and the person conducting the pros- association or not shall, on application in
ecution is deemed to be the Public Prosecutor. the prescribed manner and on payment of
No doubt, the proviso empowers the Central the prescribed fee, be entitled to submit for
Government or the State Government to ap- test or analysis to a Government Analyst
point for any case or class or group of cases, any drug or cosmetic purchased by him or
a Special Public Prosecutor. it and to receive a report of such test or
37. The Scheme of the Act must be borne analysis signed by the Government Ana-
in mind when Section 32, which provides, lyst.
inter alia, that an Inspector can set the ball Explanation.—For the purposes of this sec-
rolling, is considered. The Inspectors, under tion and section 32, “recognised consumer
the Act, are to possess the prescribed quali- association” means a voluntary consumer
fications. The qualifications bear a nexus with association registered under the Companies
the performance of the specialised duties Act, 1956 or any other law for the time
which are to be performed under the Act. being in force.”
Apparently, knowledge about the drugs and 39. A perusal of the same would indicate the
cosmetics goes a long way in equipping them role which is assigned to any person and
to perform their multifarious functions. Sec- recognized consumer association within the
tion 22 clothing the Inspector with powers meaning of Section 32. Section 26 of the
must also be viewed thus in the context of the Drugs and Cosmetics Act, 1940 declares that
legislative value judgment that a complaint is on the application, any person or any recog-
to be moved by the Inspector under the Act nized consumer association, in the prescribed
and not by a Police Officer under the CrPC. manner and on payment of prescribed fee, is
The Inspector is expected to inspect premises entitled to submit for test or analysis, to a
where drugs and cosmetics are being manu- Government Analyst any drug or cosmetic
factured, sold, stocked, exhibited, offered for purchased by the person or the association and
sale or distributed. Samples are to be taken at to receive a report of such test or analysis
the points of manufacturing, selling, stocking signed by the Government Analyst. There can
and the points of delivery. He is expected also, be no gainsaying that armed with a report
where he has reason to believe that an offence which reveals the commission of an offence
under the Act has been committed, to search under Chapter IV of the Act, they can invoke
any person, enter any place, stop and search Section 32 and prosecute the offender.
any vehicle, examine records, and documents
and seize the same. Last but not the least, 40. Section 32 of the Act undoubtedly
Section 22(1)(d) declares that he may exercise provides for taking cognizance of the offence
other powers as may be necessary for carrying by the court only at the instance of the four
the purposes of Chapter IV or any Rules made categories mentioned therein. They are: (a)
thereunder. The elaborate procedure to be Inspector under the Act; (b) Any Gazetted
followed by the Inspectors is also provided by Officer empowered by the Central or the State
the law. Government; (c) Aggrieved person; and (d)
Voluntary Association. It is clear that the
38. Section 26 of the Drugs and Cosmetics Legislature has not included the Police Officer
Act, 1940, reads as follows: as a person who can move the court. Before
“26. Purchaser of drug or cosmetic enabled the matter reaches the court, under Section
to obtain test or analysis.—Any person or 190 of the CrPC, ordinarily starting with the
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(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 259
lodging of the first information report leading Section 32 is filed either by the Inspector or by
to the registration of the first information the Authorised Gazetted Officer being public
report, investigation is carried out culminating servants under Section 200, the Magistrate is
in a report under Section 173. The Police exempted from examining the complainant
Report, in fact, is the Report submitted under and witnesses.
Section 173 of the CrPC to the court. Under 41. The learned Amicus Curiae, when que-
Section 190 of the CrPC, the court may take ried about the procedure to be adopted when
cognizance on the basis of the police report. a complaint is lodged by persons falling in
Such a procedure is alien to Section 32 of the Section 32(C) and (d), viz., the aggrieved
Act. In other words, it is not open to the Police person or a voluntary association, it was
Officer to submit a report under Section 173 submitted that the Magistrate can, under Sec-
of the CrPC in regard to an offence under tion 202 of the CrPC, order an investigation by
Chapter IV of the Act under Section 32. In the Police Officer or any other person. A
regard to offences contemplated under Sec- perusal of Section 202 would show that in
tion 32(3), the Police Officer may have power regard to an offence falling under Chapter IV
as per the concerned provisions. Being a of the Act, being exclusively triable, by a
special enactment, the manner of dealing with Court of Sessions, the proviso to sub-Section
the offences under the Act, would be governed (1) to Section 202 prohibits the direction for
by the provisions of the Act. It is to be noted investigation under Section 202. The proviso
that Section 32 declares that no court inferior to sub-Section (2) of Section 202 contem-
to the Court of Sessions shall try offence plates that when an offence is exclusively
punishable under Chapter IV. We have noticed triable by the Court of Sessions, and the
that under Section 193 of the CrPC, no Court Magistrate proceeds under Section 202 of the
of Sessions can take cognizance of any of- CrPC, he is duty bound to call upon the
fence as a Court of Original Jurisdiction complainant to produce all its witnesses and
unless the case has been committed to it by a examine them on oath. Thus, the effect of the
Magistrate under the CrPC. This is, undoubt- two provisions in sub-Sections (1) and (2),
edly, subject to the law providing expressly respectively, is as follows:
that that Court of Sessions may take cogni- A Magistrate proceeding under Section 202
zance of any offence as the Court of Original of the CrPC, is subjected to two conditions:
Jurisdiction. There is no provision in the Act
which expressly authorises the special court a. Unlike in an ordinary case, meaning
which is the Court of Sessions to take cogni- thereby, an offence which is not exclusively
zance of the offence under Chapter IV. This triable by a Court of Sessions, in a case
means that the provisions of Chapters XV and where it is an offence exclusively triable by
XVI of the CrPC must be followed in regard a Court of Sessions, the inquiry can be
to even offences falling under Chapter IV of conducted only by a Magistrate himself. It
the Act. Starting with Section 200 of the Act is not open to him to cause an investigation
dealing with taking of cognizance by a Mag- be it by a Police Officer or any other person.
istrate on a complaint, including examination b. In regard to the inquiry so conducted by
of the witnesses produced by the complainant, him, he must call upon the complainant to
the dismissal of an unworthy complaint under produce all his witnesses and they must be
Section 203 and following the procedure examined not on the basis of any affidavit,
under Section 202 in the case of postponement and not without the support of an oath but
of issue of process are all steps to be followed. the examination must be under an oath. It
It is true that when the complaint under is to be remembered that under the provi-
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260 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
sions existing under the previous Code, an tion by the Magistrate under Section 202
elaborate preliminary inquiry where even would not be tabooed as the result of the
an accused had right of cross-examination investigation by the Police Officer pursuant to
of witnesses, was contemplated at the hands a direction would not amount to a report under
of the Magistrate before the committal Section 173. This is for the reason that being
order was passed. This no longer survives offences exclusively triable by the Court of
after the amendment. Sessions, as noticed earlier, there is a bar
against the Magistrate directing investigation
42. Offences exclusively triable by a Court
under Section 202 by the Police Officer or
of Sessions are ordinarily pursued on the
otherwise.
strength of a Police Report. The Police Officer
examines witnesses under Section 161 of the 44. The learned Amicus Curiae submitted
CrPC, collects other evidence, arrives at a that the registering of an FIR under Section
satisfaction that indeed a case is made out to 154 of the CrPC in regard to reference under
arraign a person or persons and, accordingly, Chapter IV of the Act is a futile exercise. It is
the charge-sheet is filed under Section 173. his submission that the filing of the First
Section 207 of the Code contemplates making Information Statement (FIS) (We notice his
available statements of all the witnesses ex- complaint that even courts refer to the FIS as
amined among other documents to be made the complaint whereas a complaint is what is
available to the accused as provided therein. contemplated under Section 190 of the CrPC
This prepares the accused for the case he is which is filed before a court) constitutes
likely to be called upon to meet in the Court information provided under Section 154 be-
of Sessions. fore a Station House Officer In-Charge of
43. As far as a complainant setting the Police Station which activises the Officer and
criminal law in motion is concerned, what is he investigates the matter with the object of
contemplated is that by the mechanism of filing a report under Section 173 which is also
cognizance under Section 200 read with Sec- described as charge-sheet in a case where the
tion 202, culminating in the issuance of sum- Officer finds that an offence has been com-
mons or warrant under Section 204, there is mitted. It is named a final report where no
material before the Magistrate and the court is basis is found for prosecution. On the strength
assured that the case is not frivolous and of the same, he invites the court concerned to
wholly meritless going by a prima facie view take cognizance. If under Section 32 of the
undoubtedly as contemplated in law at that Act, the Police Officer has no authority to file
stage regarding the commission of a cogni- a report, he questions the actions of the Police
zance offence. Apart from this, reassuring Officer as one which is bound to die a natural
aspect, as in a prosecution launched under death. He would submit that declaring certain
Police Report, the accused in a trial by a Court offences under Section 36AC cognisable, is
of Sessions to which Court a case would stand only to empower the arrest of the accused.
committed under Section 209, would also 45. It may be noticed at this juncture, that
know beforehand the case he would have to the Act does contemplate arrest. Section
meet having regard to the materials which 36AC clearly declares that certain offences
weighed with the Magistrate and which is also are non-bailable. Section 36AC(b) proclaims
made available to him under Section 208 of that no person accused of the offences men-
the Act. In such circumstances, we need not tioned therein shall be released on bail or on
consider further the argument of the learned his own bond unless the Public Prosecutor has
Amicus Curiae that a direction for investiga- been given an opportunity to oppose the
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(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 261
application of such release and where the (a) the Appropriate Authority concerned, or
Public Prosecutor opposes, the court is satis- any officer authorised in this behalf by the
fied that there are reasonable ground for Central Government or the State Govern-
believing that he is not guilty of such offence ment or, as the case may be, the Appropriate
and that he is not likely to commit any offence Authority; or
while on bail. This limitation on the grant of (b) a person who has given notice of not less
bail is in addition to the limitations under the than sixty days, in such manner as may be
CrPC or and under any other law for the time prescribed, to the Appropriate Authority
being in force on grant of bail. The special concerned, of the alleged offence and of his
powers, however, of the High Court regarding intention to make a complaint to the court.
the grant of bail under Section 439 of the
CrPC, is preserved as found therein. (2) No court other than that of a Metro-
politan Magistrate or a Judicial Magistrate
46. The argument of Ms. Pinky Anand, of the first class shall try any offence
learned Additional Solicitor General is that punishable under this Act.
having regard to the fact that certain offences
under Section 36AC have been declared cog- (3) Where a complaint has been made under
nizable, the powers of the police under the clause (b) of sub-section (1), the court may,
CrPC including the duty to register a FIR on demand by such person, direct the
under Section 154 cannot be obviated. The Appropriate Authority to make available
only prohibition is against the Police Officer copies of the relevant records in its posses-
lodging the charge sheet. There can be no sion to such person.”
taboo on the Police Officer registering the FIR 48. The appellants were Medical Practitio-
and even conducting the investigation. This ners. An FIR was registered against them
brings up another issue, who is the person who under Section 420 of the IPC and Sections 18
can arrest a person accused of an offence in and 19 of the TOHO Act at the Police Station.
Chapter IV of the Act? Is it open to a Police The investigation was transferred to the CBI,
Officer acting under the CrPC to arrest such
respondent in the case. The CBI registered
person? Is the Inspector under the Act em-
another FIR which included Sections 18 and
powered to arrest a person accused of an
offence under Chapter IV of the Act? Before 19 of the TOHO Act. Appellant no.2 was
we deal with this aspect, we may look at how arrested and produced before the Magistrate.
this Court spoke in the past in the matter of Appellant no.1 surrendered. The respondent
taking cognizance among other aspects. filed a complaint under Section 22 of TOHO
Act pointing out that the period of 90 days
A Look at How This Court Spoke in the Past from the detention expired on 07.05.2008,
47. In Jeewan Kumar Raut and Another v. Appellant no.2 filed an application for grant of
Central Bureau of Investigation (2009) 4 MLJ bail within the meaning of Section 167(2) of
(Crl) 1339 : LNIND 2009 SC 1418 : (2009) 7 the CrPC. It was, while considering the same,
SCC 526, the case arose under the Transplan- this Court held, inter alia, as follows:
tation of Human Organs Act, 1994 (TOHO
“19. TOHO is a special Act. It deals with the
Act). Section 22 of this Act reads as follows:
subjects mentioned therein, viz. offences
“22. Cognizance of offence.— relating to removal of human organs, etc.
(1) No court shall take cognizance of an Having regard to the importance of the
offence under this Act except on a com- subject only, enactment of the said regula-
plaint made by— tory statute was imperative.
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262 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
20. TOHO provides for appointment of an reasons, the officer in charge of Gurgaon
appropriate authority to deal with the mat- Police Station had no other option but to
ters specified in sub-section (3) of Section hand over the investigation to the appro-
13 thereof. By reason of the aforementioned priate authority.
provision, an appropriate authority has xxx xxx xxx xxx
specifically been authorised inter alia to
investigate any complaint of the breach of 25. Section 22 of TOHO prohibits taking of
any of the provisions of TOHO or any of the cognizance except on a complaint made by
rules made thereunder and take appropri- an appropriate authority or the person who
ate action. The appropriate authority, sub- had made a complaint earlier to it as laid
ject to exceptions provided for in TOHO, down therein. The respondent, although,
thus, is only authorised to investigate cases has all the powers of an investigating
of breach of any of the provisions thereof, agency, it expressly has been statutorily
whether penal or otherwise. prohibited from filing a police report. It
could file a complaint petition only as an
21. Ordinarily, any person can set the appropriate authority so as to comply with
criminal law in motion. Parliament and the the requirements contained in Section 22 of
State Legislatures, however, keeping in TOHO. If by reason of the provisions of
view the sensitivity and/or importance of
TOHO, filing of a police report by neces-
the subject, have carved out specific areas
sary implication is necessarily forbidden,
where violations of any of the provisions of
a special statute like TOHO can be dealt the question of its submitting a report in
with only by the authorities specified terms of sub-section (2) of Section 173 of
therein. The FIR lodged before the officer the Code did not and could not arise. In
in charge of Gurgaon Police Station was by other words, if no police report could be
way of information. It disclosed not only filed, sub-section (2) of Section 167 of the
commission of an offence under TOHO but Code was not attracted.
also under various provisions of the Penal xxx xxx xxx xxx
Code. The officer in charge of the police
28. To put it differently, upon completion of
station, however, was not authorised by the
appropriate Government to deal with the the investigation, an authorised officer
matter in relation to TOHO; but, the re- could only file a complaint and not a police
spondent was. In that view of the matter, the report, as a specific bar has been created by
investigation of the said complaint was Parliament. In that view of the matter, the
handed over to it. police report being not a complaint and
vice versa, it was obligatory on the part of
xxx xxx xxx xxx the respondent to choose the said method
23. TOHO being a special Act and the invoking the jurisdiction of the Magistrate
matter relating to dealing with offences concerned for taking cognizance of the
thereunder having been regulated by reason offence only in the manner laid down
of the provisions thereof, there cannot be therein and not by any other mode. The
any manner of doubt whatsoever that the procedure laid down in TOHO, thus, would
same shall prevail over the provisions of the permit the respondent to file a complaint
Code. The investigation in terms of Section and not a report which course of action
13(3)(iv) of TOHO, thus, must be con- could have been taken recourse to but for
ducted by an authorised officer. Nobody the special provisions contained in Section
else could do it. For the aforementioned 22 of TOHO.”
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(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 263
(Emphasis supplied) (2)-(3)***
49. We may also notice the hope expressed xxx xxx xxx xxx
by the Court for Parliamentary intervention “23. Cognizance of, and investigation into,
expressing doubt about the absence of power an offence.—(1) Notwithstanding anything
to arrest with the Officer who is authorised to contained in the Code,—
carry out the investigation:
(a) no information about the commission of
“37. In the present case, however, the an offence of organised crime under this
respondent having specially been empow- Act, shall be recorded by a police officer
ered both under the 1946 Act as also under without the prior approval of the police
the Code to carry out investigation and file officer not below the rank of the Deputy
a charge-sheet is precluded from doing so Inspector General of Police;
only by reason of Section 22 of TOHO. It
is doubtful as to whether in the event of (b) no investigation of an offence under the
authorisation of an officer of the Depart- provisions of this Act shall be carried out by
ment to carry out investigation on a com- a police officer below the rank of the
plaint made by a third party, he would be Deputy Superintendent of Police.
entitled to arrest the accused and carry on (2) No Special Court shall take cognizance
investigation as if he is a police officer. We of any offence under this Act without the
hope that Parliament would take appropri- previous sanction of the police officer not
ate measures to suitably amend the law in below the rank of Additional Director Gen-
the near future.” eral of Police.”
50. In Jamiruddin Ansari v. Central Bureau 51. The Full Bench which was constituted
of Investigation and Another LNIND 2009 SC to hear the matter, by a majority, took the view
1148 : (2009) 6 SCC 316, the case arose under that a private complaint under Section 9, was
the Maharashtra Control of Organized Crime not trammelled by the requirement under
Act, 1999 (MCOCA). A private complaint Section 23. This Court held, inter alia, as
was filed against certain accused persons by a follows:
person. The Special Judge ordered the Com- “67. We are also inclined to hold that in
missioner of Police to investigate into the view of the provisions of Section 25 of
complaint under Section 156(3) of the CrPC. MCOCA, the provisions of the said Act
The State took the stand in a Writ Petition would have an overriding effect over the
challenging the said order that in view of provisions of the Criminal Procedure Code
Sections 23(2) of the MCOCA sans previous and the learned Special Judge would not,
sanction as contemplated therein, the Court therefore, be entitled to invoke the provi-
could not take cognizance. It is necessary to sions of Section 156(3) CrPC for ordering
advert to Sections 9 and 23 of the said Act. a special inquiry on a private complaint and
Sections (9) inter alia and 23 of MCOCA taking cognizance thereupon, without tra-
reads as follows: versing the route indicated in Section 23 of
“9. Procedure and powers of Special MCOCA. In other words, even on a private
Court.—(1) A Special Court may take cog- complaint about the commission of an
nizance of any offence without the accused offence of organised crime under MCOCA
being committed to it for trial, upon receiv- cognizance cannot be taken by the Special
ing a complaint of facts which constitute Judge without due compliance with sub-
such offence or upon a police report of such section (1) of Section 23, which starts with
facts. a non obstante clause.
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264 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
68. As indicated hereinabove, the provi- under the Act without the prior approval of the
sions of Section 23 are the safeguards Police Officer not below the rank of the
provided against the invocation of the pro- Deputy Inspector General of Police. This must
visions of the Act which are extremely be understood as supplanting the provisions of
stringent and far removed from the provi- Section 154 of the CrPC to the extent that the
sions of the general criminal law. If, as modification was spelt out. Not only could the
submitted on behalf of some of the respon- information not be so recorded without the
dents, it is accepted that a private complaint prior approval, investigation also cannot be
under Section 9(1) is not subject to the carried out except by a Police Officer of the
rigours of Section 23, then the very purpose rank of Deputy Superintendent of Police and
of introducing such safeguards lose their above. This is apart from the prohibition
very raison d’être. At the same time, since against taking cognizance of an offence under
the filing of a private complaint is also the said Act without the previous sanction of
contemplated under Section 9(1) of the Police Officer not below the rank of
MCOCA, for it to be entertained it has also Additional Director General of Police.
to be subject to the rigours of Section 23.
Accordingly, in view of the bar imposed 54. The decision of this Court in H.N.
under sub-section (2) of Section 23 of the Rishbud and Inder Singh v. State of Delhi,
Act, the learned Special Judge is precluded ETC. (1955) 1 MLJ 173 : LNIND 1954 SC
from taking cognizance on a private com- 177: AIR 1955 SC 196 dealt with a case under
plaint upon a separate inquiry under Sec- the Prevention of Corruption Act, 1947. In-
tion 156(3) CrPC. The bar of Section 23(2) vestigation in the said case was undertaken by
continues to remain in respect of com- an Officer without authorisation by the Mag-
plaints, either of a private nature or on a istrate under Section 5(4) of the Prevention of
police report.” Corruption Act, 1947. Cognizance was taken
and the trial went on. The accused thereupon
52. Thereafter, the Court proceeded to pointed out the flaw in the investigation. It is
harmonise the provisions by holding as fol- in the said circumstances, this Court pro-
lows: ceeded to deal with what is investigation, inter
“69. In order to give a harmonious con- alia:
struction to the provisions of Section 9(1) “8. … Thus, under the Code investigation
and Section 23 of MCOCA, upon receipt of consists generally of the following steps:
such private complaint the learned Special
(1) Proceeding to the spot, (2) Ascertain-
Judge has to forward the same to the officer
ment of the facts and circumstances of the
indicated in clause (a) of sub-section (1) of
case, (3) Discovery and arrest of the sus-
Section 23 to have an inquiry conducted
pected offender, (4) Collection of evidence
into the complaint by a police officer indi-
relating to the commission of the offence
cated in clause (b) of sub-section (1) and
which may consist of (a) the examination of
only thereafter take cognizance of the of-
various persons (including the accused) and
fence complained of, if sanction is accorded
the reduction of their statements into writ-
to the Special Court to take cognizance of
ing, if the officer thinks fit, (b) the search
such offence under sub-section (2) of Sec-
of places or seizure of things considered
tion 23.”
necessary for the investigation and to be
53. It is pertinent to notice that in the said produced at the trial, and (5) Formation of
enactment, under Section 23, there was a the opinion as to whether on the material
taboo against recording of any information collected there is a case to place the accused
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(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 265
before a Magistrate for trial and if so taking dent on the basis that it fell foul of the mandate
the necessary steps for the same by the of Section 28 of the Chartered Accounts Act.
filing of a charge-sheet under Section 173. 57. Section 28 of the Chartered Accoun-
…” tants Act, 1949 reads as follows:
55. No doubt, the Court went on to take the “28. Sanction to prosecute
view that the invalidity of the investigation, if
No person shall be prosecuted under this
brought to the knowledge of the Court at a
Act except on a complaint made by or under
sufficiently early stage, remedial steps may be
the order of the Council or of the Central
taken to get the illegality cured. However, it Government.”
was found that if cognizance is taken on a
Police Report vitiated by the breach of a 58. This Court went on to notice the line of
mandatory provision relating to investigation, decisions rendered by this Court which per-
the result of the trial cannot be affected unless mitted prosecution of distinct offences by way
it has resulted in a miscarriage of justice. It is of dealing with the argument based on prohi-
pertinent to note that the Court made the bition against prosecution and punishment for
following observations as well: the same offence flowing from Article 20(2)
of the Constitution of India. We notice para-
“9. … Here we are not concerned with the graphs 20, 21 and 41 of Institute of Chartered
effect of the breach of a mandatory provi- Accountants of India v. Vimal Kumar Surana
sion regulating the competence or proce- and Another (supra):
dure of the Court as regards cognizance or
“20. In other words, if the particular act of
trial. It is only with reference to such a
a member of the Institute or a non-member
breach that the question as to whether it
or a company results in contravention of the
constitutes an illegality vitiating the pro-
provisions contained in Section 24 or sub-
ceedings or a mere irregularity arises.”
section (1) of Sections 24-A, 25 or 26 and
(Emphasis supplied) such act also amounts to criminal miscon-
56. In Institute of Chartered Accountants of duct which is defined as an offence under
India v. Vimal Kumar Surana and Another IPC, then a complaint can be filed by or
(2011) 1 MLJ (Crl) 437 : LNIND 2010 SC under the order of the Council or of the
1170 :(2011) 1 SCC 534, the matter arose Central Government under Section 28,
under the Chartered Accounts Act, 1949. The which may ultimately result in imposition
respondent, who had passed the examination of the punishment prescribed under Section
of Chartered Accountant but was not a mem- 24 or sub-section (2) of Sections 24-A, 25
ber of the appellant-Institute, was sought to be or 26 and such member or non-member or
prosecuted on the basis that he had repre- company can also be prosecuted for any
sented before the Tax Authorities on the basis identified offence under IPC.
of the Power of Attorney or as Legal Repre- 21. The object underlying the prohibition
sentative and was submitting documents by contained in Section 28 is to protect the
preparing forged seals. The Authorised Rep- persons engaged in profession of Chartered
resentative of the appellant-Institute submit- Accountants against false and untenable
ted a complaint to the Police Officer. After complaints from dissatisfied litigants and
investigation, the Police filed a challan of others. However, there is nothing in the
offences under the IPC and Sections 24 and 26 language of the provisions contained in
of the Chartered Accountants Act. The same Chapter VII from which it can be inferred
was successfully questioned by the respon- that Parliament wanted to confer immunity
MLJ-CRIMINAL-10-11-2020 Postal Page No. 37
266 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
upon the members and non-members from Gujarat. The registration of the cases was
prosecution and punishment if the action of challenged on the basis of Section 22 of the
such member or non-member amounts to MMDR Act. Paragraphs 8, 9, 10 and 11
an offence under IPC or any other law. reveals the questions which arose and how it
xxx xxx xxx xxx came to be dealt with by the High Court:
41. It is also apposite to mention that except “8. Criminal Appeal No. 499 of 2011, as
the provision contained in Section 28 stated above, arose out of the order [Sanjay
against the prosecution of a person, who is v. State, (2009) 109 DRJ 594] passed by the
alleged to have acted in contravention of Delhi High Court. The Delhi High Court
sub-section (1) of Sections 24, 24-A, 25 or formulated three issues for consideration:
26 otherwise then on a complaint made by
or under the order of the Council or the (1) Whether the police could have regis-
Central Government, the Act does not tered an FIR in the case;
specify the procedure to be followed for (2) Whether a cognizance can be taken by
punishing such person. In the absence of the Magistrate concerned on the basis of
any such provision, the procedure pre- police report; and
scribed in CrPC has to be followed for
inquiry, investigation and trial of the com- (3) Whether a case of theft was made out for
plaint which may be filed for contravention permitting registration of an FIR under
of any of the provisions contained in Chap- Sections 379/411 of the Penal Code.
ter VII of the Act—Section 4 CrPC.” 9. The Delhi High Court after referring
various provisions on the MMDR Act vis-
59. In State (NCT of Delhi) v. Sanjay, ETC.,
à-vis the Code of Criminal Procedure dis-
ETC. LNIND 2014 SC 780 : (2014) 9 SCC
posed of the application directing the re-
772 : AIR 2015 SC 75, the matter arose under
spondent to amend the FIR, which was
the Mines and Minerals Development and
registered, by converting the offence men-
Regulation Act, 1957 (MMDR Act) as also
tioned therein under Sections
under Sections 378 and 379 of the IPC and the
379/411/120-B/34 IPC to Section 21 of the
question which arose for decision was
MMDR Act. The High Court in para 18 of
whether the provisions of Sections 21 and 22,
the impugned order held as under:
apart from other provisions of the MMDR
Act, operated as a bar to prosecution for “18. In view of the aforesaid and taking into
offences under Section 379/114 and other consideration the provisions contained un-
provisions of the IPC. Section 21 of the said der Section 21(6) of the said Act I hold that:
Act prescribes various penalties. Section 22 (i) The offence under the said Act being
deals with cognizance of offences and it reads cognizable offence, the police could have
as follows: registered an FIR in this case;
“22. Cognizance of offences.—No court (ii) However, so far as taking cognizance of
shall take cognizance of any offence pun- an offence under the said Act is concerned,
ishable under this Act or any Rules made it can be taken by the Magistrate only on the
thereunder except upon complaint in writ- basis of a complaint filed by an authorised
ing made by a person authorised in this officer, which may be filed along with the
behalf by the Central Government or the police report;
State Government.”
(iii) Since the offence of mining of sand
60. The Court was dealing with appeals without permission is punishable under
from judgments of High Courts of Delhi and Section 21 of the said Act, the question of
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(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 267
the said offence being an offence under by the Police in regard to offence under the
Section 379 IPC does not arise because the MMDR Act and the Rules thereunder. How-
said Act makes illegal mining as an offence ever, it was not open to the Magistrate to take
only when there is no permit/licence for cognizance. This Court, after referring to the
such extraction and a complaint in this decisions in State (NCT of Delhi) v. Sanjay,
regard is filed by an authorised officer.” ETC., ETC. (supra), held as follows:
10. On the other hand the Gujarat High “69. Considering the principles of interpre-
Court formulated the following questions tation and the wordings used in Section 22,
for consideration: in our considered opinion, the provision is
(1) Whether Section 22 of the Act would not a complete and absolute bar for taking
debar even lodging an FIR before the police action by the police for illegal and dishon-
with respect to the offences punishable estly committing theft of minerals includ-
under the said Act and the Rules made ing sand from the riverbed. The Court shall
thereunder? take judicial notice of the fact that over the
(2) In case such FIRs are not debarred and years rivers in India have been affected by
the police are permitted to investigate, can the alarming rate of unrestricted sand min-
the Magistrate concerned take cognizance ing which is damaging the ecosystem of the
of the offences on a police report? rivers and safety of bridges. It also weakens
riverbeds, fish breeding and destroys the
(3) What would be the effect on the of- natural habitat of many organisms. If these
fences punishable under the Penal Code in
illegal activities are not stopped by the State
view of the provisions contained in the Act?
and the police authorities of the State, it will
11. The Gujarat High Court came to the cause serious repercussions as mentioned
following conclusion: hereinabove. It will not only change the
(i) The offence under the said Act being river hydrology but also will deplete the
cognizable offence, the police could have groundwater levels.
registered an FIR in this case; 70. There cannot be any dispute with regard
(ii) However, so far as taking cognizance of to restrictions imposed under the MMDR
offence under the said Act is concerned, it Act and remedy provided therein. In any
can be taken by the Magistrate only on the case, where there is a mining activity by any
basis of a complaint filed by an authorised person in contravention of the provisions of
officer, which may be filed along with the Section 4 and other sections of the Act, the
police report; officer empowered and authorised under
the Act shall exercise all the powers includ-
(iii) Since the offence of mining of sand
ing making a complaint before the Juris-
without permission is punishable under
dictional Magistrate. It is also not in dispute
Section 21 of the said Act, the question of
that the Magistrate shall in such cases take
said offence being an offence under Section
cognizance on the basis of the complaint
379 IPC does not arise because the said Act
filed before it by a duly authorised officer.
makes illegal mining as an offence only
In case of breach and violation of Section
when there is no permit/licence for such
4 and other provisions of the Act, the police
extraction and a complaint in this regard is
officer cannot insist the Magistrate for
filed by an authorised officer.”
taking cognizance under the Act on the
61. The Gujarat High Court also held that basis of the record submitted by the police
Section 22 did not prohibit registering an FIR alleging contravention of the said Act. In
MLJ-CRIMINAL-10-11-2020 Postal Page No. 39
268 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
other words, the prohibition contained in final report under Section 173 CrPC before
Section 22 of the Act against prosecution of a Magistrate having jurisdiction for the
a person except on a complaint made by the purpose of taking cognizance as provided
officer is attracted only when such person in Section 190(1)(d) of the Code of Crimi-
is sought to be prosecuted for contravention nal Procedure.
of Section 4 of the Act and not for any act 73. After giving our thoughtful consider-
or omission which constitutes an offence ation in the matter, in the light of the
under the Penal Code. relevant provisions of the Act vis-à-vis the
71. However, there may be a situation Code of Criminal Procedure and the Penal
where a person without any lease or licence Code, we are of the definite opinion that the
or any authority enters into river and ex- ingredients constituting the offence under
the MMDR Act and the ingredients of
tracts sand, gravel and other minerals and
dishonestly removing sand and gravel from
remove or transport those minerals in a
the riverbeds without consent, which is the
clandestine manner with an intent to re- property of the State, is a distinct offence
move dishonestly those minerals from the under IPC. Hence, for the commission of
possession of the State, is liable to be offence under Section 378 IPC, on receipt
punished for committing such offence un- of the police report, the Magistrate having
der Sections 378 and 379 of the Penal Code. jurisdiction can take cognizance of the said
72. From a close reading of the provisions offence without awaiting the receipt of
of the MMDR Act and the offence defined complaint that may be filed by the
under Section 378 IPC, it is manifest that authorised officer for taking cognizance in
the ingredients constituting the offence are respect of violation of various provisions of
different. The contravention of terms and the MMDR Act. Consequently, the contrary
conditions of mining lease or doing mining view taken by the different High Courts
activity in violation of Section 4 of the Act cannot be sustained in law and, therefore,
is an offence punishable under Section 21 overruled. Consequently, these criminal
of the MMDR Act, whereas dishonestly appeals are disposed of with a direction to
removing sand, gravel and other minerals the Magistrates concerned to proceed ac-
from the river, which is the property of the cordingly.”
State, out of the State’s possession without (Emphasis supplied)
the consent, constitute an offence of theft.
Hence, merely because initiation of pro- 62. Chapter XII of the CrPC carries the
ceeding for commission of an offence un- chapter heading
der the MMDR Act on the basis of com- “Information to the Police and their Powers
plaint cannot and shall not debar the police to Investigate”. The Chapter starts off with
from taking action against persons for com- Section 154 carrying Section heading “In-
mitting theft of sand and minerals in the formation in cognizable cases”. It declares
manner mentioned above by exercising that every information relating to a cogni-
power under the Code of Criminal Proce- zable offence given to an officer in charge
dure and submit a report before the Mag- of the police station, if given orally, is to be
istrate for taking cognizance against such reduced to writing and whether given in
persons. In other words, in a case where writing or reduced to writing it is to be
there is a theft of sand and gravel from the signed by the informant. The key elements
government land, the police can register a of Section 154 CrPC can be noticed. Infor-
case, investigate the same and submit a mation in relation to a cognizable offence
MLJ-CRIMINAL-10-11-2020 Postal Page No. 40
(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 269
reaching the officer in charge of a police same to a Magistrate empowered to take
station which is ordinarily understood as cognizance of such offence upon a police
first information statement concerning cog- report and shall proceed in person, or shall
nizable offences sets the ball rolling so far depute one of his subordinate officers not
as the police officer, in charge of a police being below such rank as the State Gov-
station is concerned. The next provision to ernment may, by general or special order,
notice in the Chapter is Section 156. It prescribe in this behalf, to proceed, to the
provides that any officer in charge of a spot, to investigate the facts and circum-
police station may without the order from a stances of the case, and, if necessary, to take
Magistrate investigate any cognizable of- measures for the discovery and arrest of the
fence within which a court, having juris- offender; Provided that-
diction over a local area within the limits of
such station, would have the power to (a) when information as to the commission
enquire into or try under the provisions of of any such offence is given against any
Chapter XIII. In fact, Section 177 of the person by name and the case is not of a
CrPC, which is the first Section in Chapter serious nature, the officer in charge of a
XIII dealing with jurisdiction of Criminal police station need not proceed in person or
Courts Inquiries and Trial, proclaims that depute a subordinate officer to make an
every offence shall ordinarily be enquired investigation on the spot;
into and tried by a court within whose (b) if it appears to the officer in charge of
jurisdiction, the offence was committed. a police station that there is no sufficient
Thus, ordinarily, it is the Police Officer, ground for entering on an investigation, he
within whose jurisdiction the cognizable shall not investigate the case.
offence is committed, would have the ju- (2) In each of the cases mentioned in
risdiction to investigate that offence. Sec- clauses (a) and (b) of the proviso to sub-
tion 178 onwards provide for the excep- section (1), the officer in charge of the
tions to Section 177 and we need not probe police station shall state in his report his
this matter further. Sub-section (2) declares reasons for not fully complying with the
the proceedings of police officer in a case requirements of that sub-section, and, in the
of cognizable offence shall not in any stage case mentioned in clause (b) of the said
be called in question on the ground that the proviso, the officer shall also forthwith
case was one which he was not empowered notify to the informant, if any, in such
to investigate under the provision. Lastly, manner as may be prescribed by the State
sub-section (3) provides that any Magis- Government, the fact that he will not in-
trate who is empowered under Section 190 vestigate the case or cause it to be inves-
may order such an investigation which the tigated.”
officer is to undertake under sub-section
(1). It is next relevant to notice Section 157 63. It comes under the section heading
CrPC: ‘Procedure for investigation’. The body of the
“157. Procedure for investigation prelimi- Section can be split-up into the following parts
nary inquiry.(1) If, from information re- –
ceived or otherwise, an officer in charge of (i) An officer in charge of a police station
a police station has reason to suspect the may from information received have reason to
commission of an offence which he is suspect the commission of an offence. He may
empowered under section 156 to investi- also have reason to suspect the commission of
gate, he shall forthwith send a report of the cognizable offence not on the basis of any
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270 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
information but otherwise. are not tampered, and that the rights of the
(ii) As far as information is concerned, it is accused are sought to be secured. The purport
clearly relatable to the information which has of Section 159 is also to enable the Magistrate
been provided to him within the meaning of to exercise control over the investigation. All
Section 154. Cases where he acts on his own these aspects are irrelevant and out of bounds
knowledge would be covered by the expres- both for the police officer and the Magistrate
sion otherwise. in respect of an offence falling under chapter
IV of the Act.
(iii) The offences must be an offence which
64. Section 160 refers to investigation un-
he is empowered under Section 156 to inves-
der the Chapter, viz., Chapter XII. Section 161
tigate. We have noticed that a police officer is speaks about the examination of witnesses and
empowered to investigate a cognizable of- how the statements are to be reduced to
fence without an order of the Magistrate. As writing. Again, Section 161 speaks about an
far as non-cognizable offence is concerned, he investigation carried out under Chapter XII.
cannot investigate such offence without the The use to which statements under Section
order of the Magistrate having power to try or 161 can be put and the limitation on the same
commit the case for trial. are spelt out in Section 162 CrPC. Reverting
(iv) However, a police officer who under- back to Section 157, we have taken note of the
takes to investigate the matter is obliged to requirement about the police officer reporting
forthwith send a report of the same to the to the Magistrate about the reason to suspect
Magistrate empowered to take cognizance of entertained by the police officer about the
an offence upon a police report. It is at once commission of a cognizable offence on which
relevant to notice in the facts of this case that the Magistrate is to take cognizance on a
this indispensable element is not present. This report. Be it remembered that the Magistrate
is for the reason that under Section 32 of the can take cognizance under Section 190 of the
Act, a Magistrate is not competent to take CrPC on a complaint, a police report or
cognizance of the offences under Chapter IV information received from any person other
of the Act upon a police report. At this than a police officer or otherwise. Section 157
juncture, we may notice Section 158 CrPC. It appears to contemplate information received
speaks about the manner of sending the report under Section 154 or knowledge gained oth-
to the Magistrate under Section 157. It is a erwise about the commission of a cognizance
matter governed by a general or special order offence clothing the police officer with the
issued by the State Government. Quite clearly power to investigate leading to the sending of
even Section 158 cannot apply in the case of the report to the Magistrate being confined to
a cognizable offence falling under Chapter IV cases where officer intends to send the police
of the Act for the reasons which we have report which has been defined as the report
adverted to. Section 159 enables the Magis- under Section 173 of the CrPC. In regard to
trate on receiving such report to direct inves- taking cognizance under Section 32 of the Act,
tigation or if he thinks fit at once to proceed it is unambiguously clear that there is no place
or depute any Magistrate subordinate to him for a police report within the meaning of
to proceed, to hold a preliminary inquiry or Section 173 of the CrPC in regard to offences
otherwise to dispose of the case in the manner falling under Chapter IV of the Act. Section
provided in the Code. It is clear that the 157 contemplates that the Officer proceeding
purpose of Section 157 is to hold the police either by himself or through his subordinate
officer accountable to keep informed the Mag- Officer to investigate the facts and circum-
istrate. It acts as an assurance that the reports stances, and if necessary, to take measures for
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(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 271
the discovery and the arrest of the offender. of the Act is not 190 of the CrPC but Section
But on reading the provisions, we gather the 32 of the Act which does not permit cogni-
unmistakable impression that the law giver zance being taken on a police report. The
has empowered the police officer to investi- entire exercise of a police officer proceeding
gate in the case of a cognizable offence on a basis of a FIR becomes futile. It is not
without any order of the Magistrate where he contemplated in law. It therefore becomes
ultimately in an appropriate case wishes the unauthorised.
Court to take cognizance based on the material Impact of Lalita Kumari v. Government of
he gathers and transmits a police report. If this Uttar Pradesh and Others (2013) 4 MLJ (Crl)
impression of ours is not flawed, an inevitable 579 SC : LNIND 2013 SC 983 : (2014) 2 SCC
corollary would be that in the case of offence 1
under Chapter IV of the Act though it be
cognizable, a police officer would not have the 65. In the said case, a Constitution Bench of
power to investigate the matter. Section 169 this Court has held that registration of an FIR
speaks about the duty to release a person in is mandatory under Section 154 of the CrPC,
custody if it is found on investigation that if the information discloses commission of a
there is no sufficient evidence or reasonable cognizable offence and no preliminary inquiry
ground of suspicion to justify forwarding such is permissible in such a situation. It was
person to the Magistrate. Section 170 deals further held that a preliminary inquiry may be
with cases where an officer conducting inves- conducted only to ascertain whether a cogni-
tigation finds sufficient evidence or reason- zable offence is disclosed or not, if the infor-
able ground and the accused is forwarded to mation received does not disclose a cogni-
the Magistrate empowered to take cognizance zable offence but indicates the need for such
of the offence upon a report. Again, the an inquiry. The Court has also indicated
cardinal requirement for the officer to invoke certain cases where a preliminary inquiry may
Section 170 is availability of power with the be conducted, depending on the facts and
Magistrate to take cognizance upon a police circumstances of each case. They include
report. This key requirement is absent in the matrimonial disputes, commercial offences
case of an offence falling under Chapter IV of and cases where there is abnormal
the Act. The link therefore snaps. Section 173 delay/latches. This Court also held that the
speaks about the report on completion of the aforesaid were not exhaustive of all conditions
investigation for the police officer. Section which may warrant a preliminary inquiry.
173(5) is to be read with Section 170, that is
to say, in a case where there is sufficient 66. We would think that this Court was not,
material for prosecuting the concerned per- in the said case, considering a case under the
son, the documents and the statements of Act or cases similar to those under the Act, and
witnesses are to be forwarded to the Magis- we would think that having regard to the
trate as provided therein. We have already discussion which we have made and on a
noted Section 190 of the CrPC. Sections 154, conspectus of the provisions of the CrPC and
156, 157, 158, 159, 160, 161, 170 and 173 are Section 32 of the Act, the principle laid down
part of a scheme of provisions geared to in Lalita Kumari v. Government of Uttar
empower and require investigation of Pradesh and Others (2013) 4 MLJ (Crl) 579
cognisable offences which are to culminate in SC : LNIND 2013 SC 983 : (2014) 2 SCC 1
a police report within the meaning of Section is not attracted when an information is made
190(b) of the CrPC. However, what is appli- before a Police Officer making out the com-
cable in respect of offences under Chapter IV mission of an offence under Chapter IV of the
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272 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
Act mandating a registration of a FIR under officer in charge of the police station that
Section 154 of the CrPC. there is sufficient evidence or reasonable
Duty of Police Officer under Section 154 of ground of suspicion to justify the forward-
the CrPC Irrespective of Impact of Territorial ing of the accused to a Magistrate, such
Jurisdiction officer shall forward the accused under
custody to a Magistrate empowered to take
67. In State of A.P. v. Punati Ramulu and cognizance of the offence upon a police
Others AIR 1993 SC 2644, the Police Con- report and to try the accused or commit for
stable had refused to record the complaint on trial. Further, if the investigating officer
the ground that the said Police Station had no arrives at the conclusion that the crime was
territorial jurisdiction over the place of crime. not committed within the territorial juris-
It was held as follows: diction of the police station, then FIR can
“4. … It was certainly a dereliction of duty be forwarded to the police station having
on the part of the constable because any jurisdiction over the area in which the
lack of territorial jurisdiction, could not crime is committed. But this would not
have prevented the constable from record- mean that in a case which requires inves-
ing information about the cognizable of- tigation, the police officer can refuse to
fence and forwarding the same to the police record the FIR and/or investigate it.”
station having jurisdiction over the area in
which the crime was said to have been (Emphasis supplied)
committed.” 69. This was a case where the FIR had been
(Emphasis supplied) quashed by the High Court under Section 482
CrPC on the ground that the Police Officer at
68. In Satvinder Kaur v. State (Govt. of NCT
of Delhi) and Another (2000) 1 MLJ (Crl) 220 Delhi was not having territorial jurisdiction. It
: LNIND 1999 SC 893 : AIR 1999 SC 3596, was a case under Section 498A of the IPC.
this Court held, inter alia, as follows: This Court set aside the judgment of the High
Court quashing the FIR, also taking note of
“10. It is true that territorial jurisdiction also Section 156(2) of the IPC.
is prescribed under sub-section (1) to the
extent that the officer can investigate any 70. There is practice of registering an FIR
cognizable case which a court having ju- as a Zero FIR, when the Police Station at
risdiction over the local area within the which FIR is registered, does not have terri-
limits of such police station would have torial jurisdiction, and then, it is made over to
power to enquire into or try under the the Police Station which has jurisdiction in the
provisions of Chapter XIII. However, sub- matter. Could it, therefore, be said that when
section (2) makes the position clear by information is given to a Police Officer, within
providing that no proceeding of a police the meaning of Section 154 of the CrPC, in
officer in any such case shall at any stage relation to the commission of a cognizable
be called in question on the ground that the offence under Chapter IV of the Act, the
case was one which such officer was not Police Officer must register a FIR and then
empowered to investigate. After investiga- make it over to the Inspector.
tion is completed, the result of such inves- 71. It is to be noted that the duty to register
tigation is required to be submitted as FIR, when information is received about a
provided under Sections 168, 169 and 170. cognizable offence falling under Chapter IV
Section 170 specifically provides that if, of the Act, it is clear from the very inception
upon an investigation, it appears to the that a Police Officer has no jurisdiction to
MLJ-CRIMINAL-10-11-2020 Postal Page No. 44
(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 273
investigate the offence. It is not a case of respect of a cognizable offence under Chapter
absence of territorial jurisdiction. No doubt, IV of the Act on the need to register an FIR
if it is a case of another Police Officer being under Section 154. We have already noticed
empowered to investigate the offence in terms that under Section 157 of the Act making a
of powers under CrPC, the law is, as laid report to the Magistrate who can take cogni-
down, that there is the obligation to register an zance of a police report renders the provision
FIR and then make it over to the Police Station as such inapplicable under Chapter IV of the
which has jurisdiction. In fact, a conflict, Act.
when in the context of Sections 178 to 185 of
the CrPC, which constitute exceptions to the 75. The question would arise if investiga-
general principle laid down in Section 177 of tion is not permissible for a police officer
the CrPC, the High Court is to decide the under Section 157 and that he cannot give a
dispute, as is provided in Section 186 of the report under the said provision, can he be
CrPC. If an information is relatable only to empowered to carry out the arrest? Is the
cognizable offences under Chapter IV of the scheme of arrest under Section 41 of the Act
Act, we would think that the Police Officer interlinked with the power of arrest under
would be out of bounds and he has no role to Section 157? We heard the learned Counsel
play in the investigation as neither he nor any for the petitioner and the learned Amicus
other Police Officer has any role to play in the Curiae on this point and have considered their
investigation. His duty lies in referring the Written Submissions as well.
complainant to the concerned Drugs Inspec-
Provisions as to Arrest in the Constitution of
tor. If he is in receipt of information about an
offence under Chapter IV of the Act, he must India – Article 22(1) and Article 22(2).
promptly notify the concerned Drugs Inspec- 76. Article 22(1) and Article 22(2) of the
tor. Constitution of India, reads as follows:
Power to Arrest under the Act “22. Protection against arrest and deten-
72. One of the reliefs which is sought by the tion in certain cases
first respondent-writ petitioner was a direction (1) No person who is arrested shall be
not to arrest him. The Act does not expressly detained in custody without being in-
confer upon the Inspector the power to arrest. formed, as soon as may be, of the grounds
This brings up the issue, therefore, of the for such arrest nor shall he be denied the
person empowered to arrest. right to consult, and to be defended by, a
legal practitioner of his choice
73. Perusal of Section 36AC of the Act
makes it clear that arrest is contemplated (2) Every person who is arrested and de-
under the Act. Conditions have been imposed tained in custody shall be produced before
for grant of bail as enacted in Section 36AC the nearest magistrate within a period of
which we have already referred. If the Inspec- twenty four hours of such arrest excluding
tor under the Act has no authority to carry out the time necessary for the journey from the
the arrest, there cannot be a situation where place of arrest to the court of the magistrate
arrest is in the contemplation of the law giver and no such person shall be detained in
and yet there is no person who can effectuate custody beyond the said period without the
that arrest. authority of a magistrate.”
74. The further question which would 77. At this juncture, it is necessary to notice
therefore arise is, the impact of finding that the judgment of this Court in D.K. Basu v.
arrest can be effected by a police officer in State of West Bengal LNIND 1996 SC 2177 :
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274 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
(1997) 1 SCC 416. In the said case, this Court concerned telegraphically within a period
issued various directions in regard to safe- of 8 to 12 hours after the arrest.
guards to be observed in the matter of effect- (5) The person arrested must be made
ing arrest. They are found in paragraph-35 and aware of this right to have someone in-
read as follows: formed of his arrest or detention as soon as
“35. We, therefore, consider it appropriate he is put under arrest or is detained.
to issue the following requirements to be (6) An entry must be made in the diary at
followed in all cases of arrest or detention the place of detention regarding the arrest
till legal provisions are made in that behalf of the person which shall also disclose the
as preventive measures: name of the next friend of the person who
(1) The police personnel carrying out the has been informed of the arrest and the
arrest and handling the interrogation of the names and particulars of the police officials
arrestee should bear accurate, visible and in whose custody the arrestee is.
clear identification and name tags with their (7) The arrestee should, where he so re-
designations. The particulars of all such quests, be also examined at the time of his
police personnel who handle interrogation arrest and major and minor injuries, if any
of the arrestee must be recorded in a present on his/her body, must be recorded
register. at that time. The “Inspection Memo” must
(2) That the police officer carrying out the be signed both by the arrestee and the police
arrest of the arrestee shall prepare a memo officer effecting the arrest and its copy
of arrest at the time of arrest and such memo provided to the arrestee.
shall be attested by at least one witness, (8) The arrestee should be subjected to
who may either be a member of the family medical examination by a trained doctor
of the arrestee or a respectable person of the every 48 hours during his detention in
locality from where the arrest is made. It
custody by a doctor on the panel of ap-
shall also be countersigned by the arrestee
proved doctors appointed by Director,
and shall contain the time and date of arrest.
Health Services of the State or Union
(3) A person who has been arrested or Territory concerned. Director, Health Ser-
detained and is being held in custody in a vices should prepare such a panel for all
police station or interrogation centre or tehsils and districts as well.
other lock-up, shall be entitled to have one
friend or relative or other person known to (9) Copies of all the documents including
him or having interest in his welfare being the memo of arrest, referred to above,
informed, as soon as practicable, that he has should be sent to the Illaqa Magistrate for
been arrested and is being detained at the his record.
particular place, unless the attesting witness (10) The arrestee may be permitted to meet
of the memo of arrest is himself such a his lawyer during interrogation, though not
friend or a relative of the arrestee. throughout the interrogation.
(4) The time, place of arrest and venue of (11) A police control room should be pro-
custody of an arrestee must be notified by vided at all district and State headquarters,
the police where the next friend or relative where information regarding the arrest and
of the arrestee lives outside the district or the place of custody of the arrestee shall be
town through the Legal Aid Organisation in communicated by the officer causing the
the District and the police station of the area arrest, within 12 hours of effecting the
MLJ-CRIMINAL-10-11-2020 Postal Page No. 46
(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 275
arrest and at the police control room it No doubt, these are all cases where express
should be displayed on a conspicuous no- power of arrest was conferred on those
tice board.” Authorities under the concerned law.
78. We may observe what this Court laid 80. We may notice that a Bench of this
down in paragraphs-36 and 37: Court in Arnesh Kumar v. State of Bihar and
“36. Failure to comply with the require- Another LNIND 2014 SC 647 : (2014) 8 SCC
ments hereinabove mentioned shall apart 273 again considered the aspect relating to the
from rendering the official concerned liable balance that is to be struck between individual
for departmental action, also render him liberty and societal order, while exercising
liable to be punished for contempt of court power of arrest. Though the matter arose
and the proceedings for contempt of court under Section 498A of the Indian Penal Code,
may be instituted in any High Court of the 1860, which deals with matrimonial cruelty
country, having territorial jurisdiction over read with the Dowry Prohibition Act, 1961,
the matter. the Court issued directions as contained in
from paragraph-11.1 to 11.8. It also held as
37. The requirements, referred to above
follows:
flow from Articles 21 and 22(1) of the
Constitution and need to be strictly fol- “12. We hasten to add that the directions
lowed. These would apply with equal force aforesaid shall not only apply to the cases
to the other governmental agencies also to under Section 498-A IPC or Section 4 of the
which a reference has been made earlier.” Dowry Prohibition Act, the case in hand,
79. When this Court laid down in but also such cases where offence is pun-
ishable with imprisonment for a term which
paragraph-37 that the requirements laid down may be less than seven years or which may
by this Court would apply with equal force to extend to seven years, whether with or
other governmental agencies, to which refer- without fine.”
ence was made earlier, the Court had in mind
the following statements in paragraph-30 of 81. Still later, we may notice that a Bench
the Judgment: of this Court frowned upon arrest which was
“30. Apart from the police, there are several unwarranted in the decision reported in Rini
other governmental authorities also like Johar v. State of M.P. (2016) 3 MLJ (Crl) 501
Directorate of Revenue Intelligence, Direc- : LNIND 2016 SC 246 : (2016) 11 SCC 703
torate of Enforcement, Coastal Guard, Cen- : AIR 2016 SC 2679, and the Court also
tral Reserve Police Force (CRPF), Border granted compensation, having regard to the
Security Force (BSF), the Central Industrial manner in which the petitioner was treated in
Security Force (CISF), the State Armed the said case. After referring to Arnesh Kumar
Police, Intelligence Agencies like the In- v. State of Bihar and Another (supra), this
telligence Bureau, RAW, Central Bureau of Court in Rini Johar v. State of M.P. (supra),
Investigation (CBI), CID, Traffic Police, inter alia, held as follows:
Mounted Police and ITBP, which have the “22. We have referred to the enquiry report
power to detain a person and to interrogate and the legal position prevalent in the field.
him in connection with the investigation of On a studied scrutiny of the report, it is
economic offences, offences under the Es- quite vivid that the arrest of the petitioners
sential Commodities Act, Excise and Cus- was not made by following the procedure of
toms Act, Foreign Exchange Regulation arrest. Section 41-A CrPC as has been
Act etc. ……” interpreted by this Court has not been
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276 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
followed. The report clearly shows that (ii) the police office is satisfied that such
there have been number of violations in the arrest is necessary-
arrest, and seizure. Circumstances in no (a) to prevent such person from committing
case justify the manner in which the peti- any further offence; or
tioners were treated.”
(b) for proper investigation of the offence;
No doubt, the Court, in Arnesh Kumar v. or
State of Bihar and Another (supra), was
(c) to prevent such person from causing the
dealing with the case which dealt with a
evidence of the offence to disappear or
situation where the offences were punishable
tampering with such evidence in any man-
with imprisonment upto seven years, and as
ner; or
mandated in Section 41 of the CrPC., reasons
had to exist for effecting an arrest as provided (d) to prevent such person from making any
therein. inducement, threat or promise to any person
acquainted with the facts of the case so as
The Power of Arrest under the CrPC to dissuade him from disclosing such facts
82. Chapter V of the CrPC deals with the to the Court or to the police officer; or
arrest of persons. Section 41 of the CrPC, vide (e) as unless such person is arrested, his
the Code of Criminal Procedure (Amend- presence in the Court whenever required
ment) Act, 2008 (Act 5 of 2009, Section 5) cannot be ensured, and the police officer
(w.e.f. 01-11-2010), deals with the power of shall record while making such arrest, his
the Police Officer to arrest without warrant. It reasons in writing:
reads as follows after substitution:
2[Provided that a police officer shall, in all
“41. When police may arrest without cases where the arrest of a person is not
warrant.-(1) Any police officer may with- required under the provisions of this sub-
out an order from a Magistrate and without section, record the reasons in writing for not
a warrant, arrest any person- making the arrest.]
1(a) who commits, in the presence of a
(ba) against whom credible information has
police officer, a cognizable offence; been received that he has committed a
(b) against whom a reasonable complaint cognizable offence punishable with impris-
has been made, or credible information has onment for a term which may extend to
been received, or a reasonable suspicion more than seven years whether with or
exists that he has committed a cognizable without fine or with death sentence and the
offence punishable with imprisonment for a police officer has reason to believe on the
term which may be less than seven years or basis of that information that such person
which may extend to seven years whether has committed the said offence;]
with or without fine, if the following con- (c) who has been proclaimed as an offender
ditions are satisfied, namely:- either under this Code or by order of the
(i) the police officer has reason to believe State Government; or
on the basis of such complaint, information, (d) in whose possession anything is found
or suspicion that such person has commit- which may reasonably be suspected to be
ted the said offence; stolen property and who may reasonably be
1 Substituted by Act 5 of 2009, sec.5(i), for clauses (a) and (b) (w.e.f. 1-11-2010).
2 Ins. By Act 41 of 2010, sec.2 (w.e.f. 2-11-2010).

MLJ-CRIMINAL-10-11-2020 Postal Page No. 48

(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 277
suspected of having committed an offence by the Police Officer in all the cases covered
with reference to such thing; or by Sub-Section (1) of Section 41 of the CrPC,
(e) who obstructs a police officer while in where the arrest of a person is not required, to
the execution of his duty, or who has appear before him. As long as a person
escaped, or attempts to escape, from lawful complies with the Notice, Section 41A(iii)
custody; or prohibits arrest unless the Police Officer, for
reasons to be recorded, is of the view that he
(f) who is reasonably suspected of being a is to be arrested. Section 41B of the CrPC,
deserter from any of the Armed Forces of again inserted w.e.f. 01.11.2010, casts a duty
the Union; or on a Police Officer, making an arrest, to bear
(g) who has been concerned in, or against an accurate, visible and clear identification of
whom a reasonable complaint has been his name. He is to prepare a Memorandum of
made, or credible information has been Arrest, which is, inter alia, to be counter-
received, or a reasonable suspicion exists, signed by the person arrested. Section 41D of
of his having been concerned in, any act the CrPC confers a right on the arrested person
committed at any place out of India which, to meet an Advocate of his choice during the
if committed in India, would have been interrogation, though not throughout interro-
punishable as an offence, and for which he gation. Under Section 42 of the CrPC, if a
is, under any law relating to extradition, or person commits a non-cognizable offence in
otherwise, liable to be apprehended or the presence of a Police Officer or he is
detained in custody in India; or accused of committing a non-cognizable of-
fence, and the Police Officer, on demanding
(h) who, being a released convict, commits
his name and residence, is met with a refusal
a breach of any rule made under sub-section
or the giving of a name or residence, which the
(5) of section 356; or
Officer believes to be false, arrest can be made
(i) for whose arrest any requisition, whether but for the purpose of ascertaining the name
written or oral, has been received from and residence. In fact, he is to be released
another police officer, provided that the immediately on executing a bond when the
requisition specifies the person to be ar- true name and residence is ascertained. If
rested and the offence or other cause for there is failure to ascertain the address within
which the arrest is to be made and it appears twenty-four hours, inter alia, of arrest, no
therefrom that the person might lawfully be doubt, it is forthwith forwarded to the nearest
arrested without a warrant by the officer Magistrate having jurisdiction. The Act con-
who issued the requisition. templates arrest by a private person. The
3[(2) Subject to the provisions of Section power and the procedure, is detailed in Sec-
42, no person concerned in a non- tion 43 of the CrPC, it reads as follows:
cognizable offence or against whom a com- “43. Arrest by private person and proce-
plaint has been made or credible informa- dure on such arrest.
tion has been received or reasonable
(1) Any private person may arrest or cause
suspicion exists of his having so concerned,
to be arrested any person who in his pres-
shall be arrested except under a warrant or
ence commits a non-bailable and cogni-
order of a Magistrate.].”
zable offence, or any proclaimed offender,
83. Section 41A of the CrPC, inserted w.e.f. and, without unnecessary delay, shall make
01.11.2010, provides for issuance of Notice over or cause to be made over any person
3 Subs. By Act 5 of 2009, sec. 5(ii), for sub-Section (2) (w.e.f. 1-11-2010).

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278 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
so arrested to a police officer, or, in the into force on 23.06.2006. Section 51 deals
absence of a police officer, take such person with search of the arrested person.
or cause him to be taken in custody to the 86. Section 54 of the CrPC declares that
nearest police station. when any person is arrested, he shall be
(2) If there is reason to believe that such examined by a Medical Officer. Section 54A
person comes under the provisions of sec- of the CrPC, inserted w.e.f. 23.06.2006, spe-
tion 41, a police officer shall re-arrest him. cifically provides for identification of the
(3) If there is reason to believe that he has arrested person. Section 55A of the CrPC,
committed a non-cognizable offence, and inserted w.e.f. 31.12.2009, makes it the duty
he refuses on the demand of a police officer of the person, having the custody of the
to give his name and residence, or gives a person, to take reasonable care of the health
name or residence which such officer has and safety. Section 56 of the CrPC makes it the
duty of the Police Officer, arresting without
reason to believe to be false, he shall be
warrant, to produce the person arrested before
dealt with under the provisions of section
a Magistrate having jurisdiction without un-
42; but if there is no sufficient reason to necessary delay or before the Officer In-
believe that he has committed any offence, charge of a Police Station. This is, no doubt,
he shall be at once released.” subject to the provisions as to Bail. Section 57
84. Section 46 of the CrPC provides for the of the CrPC, reads as follows:
manner of arrest. Section 47 enables the “57. Person arrested not to be detained
Police Officer to search the place entered by more than twenty-four hours. No police
a person sought to be arrested. Section 48 of officer shall detain in custody a person
the CrPC reads as follows: arrested without warrant for a longer period
“48. Pursuit of offenders into other juris- than under all the circumstances of the case
is reasonable, and such period shall not, in
dictions. A police officer may, for the
the absence of a special order of a Magis-
purpose of arresting without warrant any
trate under section 167, exceed twenty-four
person whom he is authorised to arrest, hours exclusive of the time necessary for
pursue such person into any place in India.” the journey from the place of arrest to the
85. The person arrested is not to be sub- Magistrate’ s Court.”
jected to more restraint than is necessary to 87. The Officer In-charge of Police Station
prevent his escape, declares Section 49 of the is to report about all persons arrested without
CrPC. Every Police Officer or other person, warrant to the District Magistrate or the Sub-
arresting a person without a warrant, is bound Divisional Magistrate as directed by the Dis-
forthwith to communicate to him all particu- trict Magistrate. Section 59 of the CrPC
lars of the offence for which he is arrested or provides that no person, who has been arrested
other grounds for such arrest. This is provided by a Police Officer, shall be discharged,
for in Section 50 of the CrPC. A Police Officer, except on his own bond or on Bail or under the
when he arrests a person without warrant and Special Order of the Magistrate. Section 60A
he is not accused of committing a non-bailable of the CrPC provides that no arrest is to be
offence, is duty-bound to inform him of his made, except in accordance with the provi-
entitlement to be released on Bail. The Police sions of the CrPC or any other law being in
Officer is also under an obligation to inform, force, providing for arrest. Chapter XI of the
under Section 50A of the CrPC, a nominated CrPC provides for preventive action of the
person about the factum of arrest. This came Police. Section 151 of the CrPC, inter alia,
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(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 279
empowers a Police Officer, knowing of a (b) that any condition imposed by a Mag-
design by a person to commit a cognizable istrate when releasing an person on bail be
offence, to arrest him without orders from a set aside or modified: Provided that the
Magistrate and without a warrant. Section 157 High Court or the Court of Session shall,
of the CrPC provides, inter alia, that the before granting bail to a person who is
Police Officer, proceeding to investigate a accused of an offence which is triable
case, may take measures for the arrest of the exclusively by the Court of Session or
offender. Section 167 of the CrPC deals with which, though not so triable, is punishable
a case where investigation is not completed with imprisonment for life, give notice of
within twenty-four hours, as fixed in Section the application for bail to the Public Pros-
57 of the CrPC. It provides that in such a ecutor unless it is, for reasons to be re-
situation, if there are grounds for believing corded in writing, of opinion that it is not
that the accusation or information is well practicable to give such notice.
founded, the person arrested, is to be for-
(2) A High Court or Court of Session may
warded to the Magistrate, inter alia. Section
direct that any person who has been re-
167 empowers Magistrate to order remand of
the accused person, as provided therein. leased on bail under this Chapter be ar-
rested and commit him to custody.”
A few words about the Provisions as to Bail
90. Section 36AC of the Act, around which
88. Chapter XXXIII of the CrPC deals with
much arguments were addressed reads as
Bail. Section 436 of the CrPC deals with Bail
follows:
in the case of an arrest of a person accused of
a bailable offence. There is a Statutory Right “36AC. Offences to be cognizable and
to Bail in the manner provided therein. Sec- non-bailable in certain cases. —
tion 437 of the CrPC provides for Bail in the (1) Notwithstanding anything contained in
case of a non-bailable offence. It, essentially, the Code of Criminal Procedure, 1973 (2 of
deals with a situation where a person is 1974),—
brought before a court other than the High
Court or Court of Sessions. There are certain (a) every offence, relating to adulterated or
restrictions and conditions to be fulfilled in the spurious drug and punishable under clauses
matter of grant of Bail on the Court, as is (a) and (c) of sub-section (1) of section 13,
stated therein. clause (a) of sub-section (2) of section 13,
89. Section 439 of the CrPC, confers special sub-section (3) of section 22, clauses (a)
powers on the High Court or the Court of and (c) of section 27, section 28, section
Sessions in regard to Bail. It reads as follows: 28A, section 28B and sub-sections (1) and
(2) of section 30 and other offences relating
“439. Special powers of High Court or to adulterated drugs or spurious drugs, shall
Court of Session regarding bail. be cognizable.
(1) A High Court or Court of Session may (b) no person accused, of an offence pun-
direct- ishable under clauses (a) and (c) of sub-
(a) that any person accused of an offence section (1) of section 13, clause (a) of
and in custody be released on bail, and if the sub-section (2) of section 13, sub-section
offence is of the nature specified in sub- (3) of section 22, clauses (a) and (c) of
section (3) of section 437, may impose any section 27, section 28, section 28A, section
condition which it considers necessary for 28B and sub-sections (1) and (2) of section
the purposes mentioned in that sub-section; 30 and other offences relating to adulter-
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280 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
ated drugs or spurious drugs, shall be Ramesh Chandra Mehta v. State of W.B.
released on bail or on his own bond LNIND 1968 SC 317 : (1969) 2 SCR 461,
unless— Illias v. Collector of Customs, Madras LNIND
(i) the Public Prosecutor has been given an 1968 SC 329 : (1969) 2 SCR 613, State of U.P.
opportunity to oppose the application for v. Durga Prasad LNIND 1974 SC 248 :
such release; and (1975) 3 SCC 210 and Balkishan A. Devidayal
v. State of Maharashtra LNIND 1980 SC 298
(ii) where the Public Prosecutor opposes : (1980) 4 SCC 600. These decisions, appar-
the application, the Court is satisfied that ently, are relied on to show that Officers of
there are reasonable grounds for believing Department, including the Directorate of Rev-
that he is not guilty of such offence and that enue Intelligence (DRI), invested with powers
he is not likely to commit any offence while of investigation under the Narcotic Drugs and
on bail: Psychotropic Substances Act, 1985, Customs
Provided that a person, who, is under the Act, 1962 and under the Railway Property
age of sixteen years, or is a woman or is sick (Unlawful Possession) Act, 1966, are not
or infirm, may be released on bail, if the Police Officers. It is, therefore, the case of the
Special Court so directs. petitioner that important indispensable attri-
bute of a Police Officer is not only authority
(2) The limitation on granting of bail speci-
to investigate but to also have power to file a
fied in clause (b) of sub-section (1) is in
Report under Section 173 of the CrPC.
addition to the limitations under the Code
of Criminal Procedure, 1973 (2 of 1974) or 92. It is further contended that unlike the
any other law for the time being in force on Prevention of Money-Laundering Act, 2002,
granting of bail. which specially provides that “no Police Of-
(3) Nothing contained in this section shall ficer can investigate into an offence under the
be deemed to affect the special powers of Act”, the Act in question is silent. The special
the High Court regarding bail under section provision must prevail in case of conflict with
439 of the Code of Criminal Procedure, the general provision. In view of absence of
1973 (2 of 1974) and the High Court may specific powers on the Inspector under the
exercise such powers including the power Act, provisions of CrPC will prevail. A literal
under clause (b) of sub-section (1) of that interpretation, according to the plain meaning
section as if the reference to “Magistrate” in of the language, is commended for our ac-
that section includes also a reference to a ceptance. The provisions of Section 36AC of
“Special Court” designated under section the Act are emphasized before us treating
36AB.” offences thereunder as being cognizable and
non-bailable. It is submitted that there is
91. The learned Counsel for the Union of power to arrest with the Police. The judgment
India would submit that the Inspector, under in Directorate of Enforcement v. Deepak
Section 32 of the Act, cannot be treated as a Mahajan and Another (1994) 3 SCC 440 is
Police Officer who has the power to arrest sought to be distinguished. The implication of
under the CrPC. Reliance is placed on Badaku Section 36AC of the Act is that the offences
Joti Savant v. State of Mysore LNIND 1966 set-out therein can be investigated by the
SC 68 : (1966) 3 SCR 698. Similarly, support Police. Therefore, Section 36AC will apply
is drawn from Raj Kumar Karwal v. Union of notwithstanding Section 32 of the Act. Oth-
India and Others (1990) 1 MLJ (Crl) 365 : erwise, the intention of the Legislature, in
LNIND 1990 SC 171 : (1990) 2 SCC 409 : making the offence cognizable and, at the
[1990] 2 SCR 63. Reliance is also placed on same time, to denude the Police of the power
MLJ-CRIMINAL-10-11-2020 Postal Page No. 52
(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 281
to prosecute, would be a contradiction. It is take cognizance, and since Section 32 of the
pointed out that before Section 36AC of the Act would bar such cognizance, no purpose
Act, the offences relating to adulterated and would be served in registering the case. The
spurious drugs under the Act, were non- Legislative intent, under Section 32 of the
cognizable offences. It is also contended that Act, cannot be diluted. The Police Officer,
Section 36AC of the Act now makes an therefore, cannot arrest under Section 157
exception by empowering the Police to inves- of the CrPC. While introducing Section
tigate and consequently prosecute for the 36AC, the Legislature was presumed to
offences specifically set-out in Section 36AC. know the bar in Section 32. There is an
It is pointed out that the offences set-out in inconsistency between Section 32 and Sec-
Section 36AC, other than the offences relating tion 36AC, though they were
amended/introduced by the same amend-
to adulterated drugs and spurious drugs, could
ment. It becomes the duty of the Court to
not have been considered cognizable in terms
avoid a head-on clash between the two
of Schedule I Part 2 of the CrPC. Except
Sections. It is contended that the Court must
Section 27A and 27C and Section 30(1) of the
effect reconciliation. Reliance is placed on
Act, all other provisions mentioned in Section
judgment of this Court in D. Sanjeevayya v.
36AC of the Act, were non-cognizable of-
Election Tribunal, Andhra Pradesh and
fences as per Schedule I Part 2 of the CrPC.
Others (1968) 1 MLJ 112 : LNIND 1967
But having regard to the amended Section
SC 20 : AIR 1967 SC 1211.
36AC of the Act, it is the special provisions in
Section 36AC, which will prevail. 94. Learned Amicus Curiae further submits
The submissions of the learned amicus in that Section 21 of the Act speaks of the
regard to arrest. “Appointment of the Inspectors”. The quali-
fications of Inspectors are provided in Rule 49
93. When the Court pointed out that there of the Drugs and Cosmetics Rules. They are
is no express power on the Drugs Inspector Experts in the subjects so far as the powers are
under the Act to arrest and when an arrest is provided in Sections 22 and 23 of the Act. The
effected, whether it becomes necessary to provisions in Section 23 are mandatory. The
register an FIR under Section 154 of the CrPC. Act provides for getting a Report on the
The learned Amicus Curiae submitted as fol- sample and the accused is also enabled to seek
lows: a Second Report from the Central Laboratory.
He agreed that for a person to be released The Police Officer may not have the qualifi-
on Bail, he should have been remanded to cations. He may not know how to draw the
custody. He should further have been ar- sample. The procedure can be meaningfully
rested under Section 157 of the CrPC in followed only by the Inspectors. Legislature
order that he be remanded under Section did not intend to give similar powers to the
167 of the CrPC. If he is arrested under Police. It is further contended that if it is held
Section 41(1) of the CrPC, immediately that the Police can file a Final Report, upon
thereafter, a case should be registered and which cognizance can be taken, it will make
he should be sent to the Court seeking Section 32 of the Act non-existent. Similarly,
remand. Any case registered under Section in an attempt to interpret Section 36AC, if the
154 or 155 of the CrPC, is to culminate in Police is conferred with the power to arrest, it
the Report under Section 173(2) of the will lead to authorizing the Police to also
CrPC. There is no other way for giving register the case under Section 154 of the
disposal to the case. Filing of such a Final CrPC and to file a Final Report under Section
Report under Section 190 of the CrPC is to 173(2) of the CrPC. It is difficult to harmonise
MLJ-CRIMINAL-10-11-2020 Postal Page No. 53
282 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
Section 32 and Section 36AC of the Act, it is appear to be in conflict with each other in
pointed out. The learned Amicus Curiae draws such a manner as to harmonise them.
our attention to the following observations of (2) The provisions of one section of a
this Court in Sultana Begum v. Prem Chand statute cannot be used to defeat the other
Jain LNIND 1996 SC 2089 : (1997) 1 SCC provisions unless the court, in spite of its
373: efforts, finds it impossible to effect recon-
“11. The statute has to be read as a whole ciliation between them.
to find out the real intention of the legis- (3) It has to be borne in mind by all the
lature. courts all the time that when there are two
12. In Canada Sugar Refining Co. v. R. conflicting provisions in an Act, which
[1898 AC 735 : 67 LJPC 126], Lord Davy cannot be reconciled with each other, they
observed: should be so interpreted that, if possible,
“Every clause of a statute should be con- effect should be given to both. This is the
strued with reference to the context and essence of the rule of “harmonious con-
other clauses of the Act, so as, as far as struction”.
possible, to make a consistent enactment of (4) The courts have also to keep in mind that
the whole statute or series of statutes relat- an interpretation which reduces one of the
ing to the subject-matter.” provisions as a “dead letter” or “useless
13. This Court has adopted the same rule in lumber” is not harmonious construction.
M. Pentiah v. Muddala Veeramallappa (5) To harmonise is not to destroy any
[AIR 1961 SC 1107 : (1961) 2 SCR 295]; statutory provision or to render it otiose.”
Gammon India Ltd. v. Union of India
[(1974) 1 SCC 596 : 1974 SCC (L&S) 252 95. Police cannot arrest as there can be no
: AIR 1974 SC 960]; Mysore SRTC v. Mirja investigation by the Police. Section 36AC of
Khasim Ali Beg [(1977) 2 SCC 457 : 1974 the Act stipulates stringent conditions for
SCC (L&S) 282 : AIR 1977 SC 747]; V. granting Bail. It can be made applicable when
Tulasamma v. Sesha Reddy [(1977) 3 SCC the accused is remanded to the custody by the
99 : AIR 1977 SC 1944]; Punjab Beverages Magistrate while committing the case to the
(P) Ltd. v. Suresh Chand [(1978) 2 SCC 144 Sessions Court.
: 1978 SCC (L&S) 165 : AIR 1978 SC 995]; 96. As regards Section 41 of the CrPC, the
CIT v. National Taj Traders [(1980) 1 SCC learned Amicus Curiae would point out that
370 : 1980 SCC (Tax) 124 : AIR 1980 SC empowering the Police to arrest in respect of
485]; Calcutta Gas Co. (Proprietary) Ltd. cognizable offence, under the said provisions,
v. State of W.B. [AIR 1962 SC 1044 : 1962 being a general provision, may not be coun-
Supp (3) SCR 1] and J.K. Cotton Spg. & tenanced as the general provisions are over-
Wvg. Mills Co. Ltd. v. State of U.P. [AIR ridden by the provisions of the Act. Again,
1961 SC 1170 : (1961) 1 LLJ 540] arrest under Section 41 of the CrPC must be
xxx xxx xxx xxx followed by the registration of the case under
Section 154 of the CrPC, which is not possible
15. On a conspectus of the case-law indi- in view of Section 32 of the Act. The learned
cated above, the following principles are Amicus Curiae also voices the apprehension
clearly discernible: that if power to arrest is conferred on the
(1) It is the duty of the courts to avoid a Police Officer, under Section 41, then, in
head-on clash between two sections of the every special enactment, such as the Food
Act and to construe the provisions which Adulteration Act, Income-Tax Act, Food
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(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 283
Safety and Standards Act, Customs Act, etc., persons who may prefer a report under Section
the Police will arrest under Section 41 of the 173(2) of the CrPC, on which, cognizance
CrPC, register a case and file a Final Report. could be taken by the Special Court. Undoubt-
The special provisions of those Acts, restrict- edly, as we have already clarified in respect of
ing cognizance only on the basis of a com- an offence under Chapter IV, if the acts or
plaint, would be rendered nugatory. omission also constitutes an offence under any
97. The learned Amicus Curiae would also other law, under Section 32(3) of the Act, it
submit that though there is no specific provi- may be open to the Police Officer, if he is
sion empowering the Drugs Inspector to ar- otherwise empowered under the said law, to
rest, Section 22(1)(d) of the Act may be prosecute the person for the same offence, to
interpreted and it be held that the Inspector has act as such.
power to arrest. In this regard, reliance is 100. Consequently, the registration of an
placed on Directorate of Enforcement v. FIR, which under the scheme of the CrPC, sets
Deepak Mahajan and Another (supra).
the ball rolling, empowering the Police Offi-
Analysis cer to investigate under Section 157 of the
98. The arrest of a person involves an CrPC, and gather material and finally file a
encroachment on his personal liberty. Article Report, would all appear to us to be inappli-
21 of the Constitution of India declares that no cable to an offence under Chapter IV of the
person shall be deprived of his personal liberty Act.
and life except in accordance with procedure 101. The conundrum, however, is posed by
established by law. There can be no doubt that the aspect relating to arrest. Undoubtedly,
the power to arrest any person therefore must there is no express power on the Inspector to
be premised on a law which authorizes the arrest under the Act. The argument of the
same. learned Additional Solicitor General, Ms.
99. Under the Act, as noted by us, and Pinky Anand that the Drugs Inspector could
bearing in mind the law laid down in connec- not be a Police Officer as he is not a person
tion with similar Statutes, we have no hesi- who can file a Report under Section 173 of the
tation in rejecting the argument of the peti- CrPC and, therefore, he cannot arrest, does not
tioner that after the amendment of Section appeal to us. The decisions relied upon by the
36AC of the Act, making the offences cogni- learned Counsel, referred to by us in
zable and non-bailable, it is open to the Police paragraph-91 hereinbefore, only declare that
Officer to prosecute the person for the of- the Customs Officer under the Customs Act
fences set-out in Section 36AC of the Act. and the other officers in the enactments, which
Having regard to the express provisions of we have referred to, are not Police Officers in
Section 32 of the Act, insofar as the prosecu- the context of Section 25 of the Indian Evi-
tion is to be launched qua offences falling dence Act, 1872 (hereinafter referred to as ‘the
within the four walls of Chapter IV of the Act, Evidence Act’, for short). Section 25 of the
and which are also the subject matter of Evidence Act renders inadmissible a confes-
Section 36AC of the Act, there cannot be any sion made to a Police Officer. The question
doubt that prosecution of the offender, for here is not whether the Drugs Inspector is a
such offences, can be done only in the manner Police Officer and the question here is
provided in Section 32 of the Act. The pros- whether he is empowered to carry out arrest of
ecution can be launched only by the persons a person under the Act. Still further, the
mentioned in Section 32 of the Act. A Police question to be answered is, whether a Police
Officer, as such, does not figure as one of the officer under the CrPC is deprived of his
MLJ-CRIMINAL-10-11-2020 Postal Page No. 55
284 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
power, under the CrPC, to arrest. These are the offenders for offences under Chapter IV of the
questions to be answered by us. Act, is also a carefully thought out ideal.
102. The Court must start with the pre- The decision of this Court in Directorate of
sumption that Parliament, which is author of Enforcement v. Deepak Mahajan and Another
the CrPC and also the Act in question, was (1994) 3 SCC 440
aware of the provisions of the CrPC, as it 103. In Directorate of Enforcement v.
existed at the time when the Act was enacted Deepak Mahajan and Another (supra), the
in 1940. This is following the principle that the
question arose in the context of provisions of
Legislature must be assumed to know the law
Section 35 of the Foreign Exchange Regula-
which exists on the Statute Book when it
makes a new law. It must, therefore, be tion Act, 1973 (FERA) and Section 104 of the
assumed to know that the power of arrest is Customs Act, 1962, which expressly con-
expressly conferred on the Police Officer in ferred power of arrest on the Officers under
the manner which we have referred to. The the Acts. The question which squarely arose
Legislature has not, in the Act, yet conferred was whether upon arrest being effected under
express power on the Drugs inspector, to Section 35 of the FERA and Section 104 of the
arrest. However, Section 22(1)(d) of the Act, Customs Act, a remand could be ordered
which deals with the powers of the Inspector, under Section 167(2) of the CrPC. In the
inter alia, enables the Inspector to exercise course of discussion, the Court proceeded to
such other powers as may be necessary for hold that the CrPC gives power of arrest not
carrying out the purpose of Chapter IV or any only to the Police Officer, but to a Magistrate
Rules made thereunder. The sanction, which is and also under certain circumstances or given
contemplated under Chapter IV, is the crimi- situations to private persons. It went on to hold
nal sanction by way of prosecuting a person that in every arrest there is custody but not
for contravening the provisions of Chapter IV vice-versa. It further held as follows:
of the Act. In other words, the Legislature has “54. The above deliberation leads to a
given teeth to the law by providing for pros- derivation that to invoke Section 167(1), it
ecuting offenders. The Inspector is at the is not an indispensable pre-requisite con-
center stage. In every other aspect, as can be dition that in all circumstances, the arrest
seen from the Act, the implementation of its should have been effected only by a police
provisions is vitally dependent upon the pow- officer and none else and that there must
ers and functions assigned to the Inspector. necessarily be records of entries of a case
The very qualifications, which are provided in diary. Therefore, it necessarily follows that
the Rules, as indispensable for being ap- a mere production of an arrestee before a
pointed as an Inspector, represents a carefully competent Magistrate by an authorised of-
chosen value judgment by the Legislature to ficer or an officer empowered to arrest
assign the implementation of the Act through (notwithstanding the fact that he is not a
the competent hands of qualified persons. The police officer in its stricto sensu) on a
Act is enacted to achieve the highest public reasonable belief that the arrestee “has been
interest in as much as what is at stake is the guilty of an offence punishable” under the
health of the members of the public, which provisions of the special Act is sufficient for
again is recognized as one of the aspects the Magistrate to take that person into his
covered by the Fundamental Right protected custody on his being satisfied of the three
under Article 21 of the Constitution of India. preliminary conditions, namely (1) the ar-
Keeping the Police Officer out from the resting officer is legally competent to make
categories of persons, who could prosecute the arrest; (2) that the particulars of the
MLJ-CRIMINAL-10-11-2020 Postal Page No. 56
(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 285
offence or the accusation for which the “111. Neither the Police Act, 1861 (Act V
person is arrested or other grounds for such of 1861) nor any other statute defines the
arrest do exist and are well-founded; and expression ‘police officer’. Shortly stated,
(3) that the provisions of the special Act in the main duties of the police are the pre-
regard to the arrest of the persons and the vention, detention and investigation of
production of the arrestee serve the purpose crimes. As the powers and duties of the
of Section 167(1) of the Code.”
State have increased and are increasing
(Emphasis supplied) manifold, various Acts dealing with Cus-
104. Section 35(2) in FERA and Section toms, Excise, Forest, Taxes etc. have come
104(2) of the Customs Act, provided that the to be passed and consequently the preven-
person arrested was to be taken before a tion, detention and investigation of of-
Magistrate without unnecessary delay. As re- fences as prescribed under those Acts have
gards the power to detain the person arrested come to be entrusted to officers with dif-
under Section 167(2) of the CRPC, it was held ferent nomenclatures appropriate to the
as follows: subject with reference to which they func-
“102. From the foregoing discussion, it is tion. However, as stated supra, though the
clear that the word ‘accused’ or ‘accused powers of customs officers and enforce-
person’ is used only in a generic sense in ment officers are not identical to those of
Section 167(1) and (2) denoting the ‘per- police officers qua the investigation under
son’ whose liberty is actually restrained on Chapter XII of the Code yet the officers
his arrest by a competent authority on under the FERA and Customs Act are
well-founded information or formal accu- vested with certain powers similar to the
sation or indictment. Therefore, the word powers of police officers.”
‘accused’ limited to the scope of Section
167(1) and (2) — particularly in the light of 106. Section 167(1) of the CrPC contem-
Explanation to Section 273 of the Code plates forwarding the diary which was inter-
includes ‘any person arrested’. The inevi- preted to be not the general diary and the
table consequence that follows is that “any special diary under Section 167(2) of the
person is arrested” occurring in the first CrPC. In regard to the enactments in question,
limb of Section 167(1) of the Code takes this Court held as follows:
within its ambit “every person arrested”
“113. Though an authorised officer of En-
under Section 35 of FERA or Section 104
forcement or Customs is not undertaking an
of the Customs Act also as the case may be
investigation as contemplated under Chap-
and the ‘person arrested’ can be detained by
ter XII of the Code, yet those officers are
the Magistrate in exercise of his power
enjoying some analogous powers such as
under Section 167(2) of the Code. In other
arrest, seizures, interrogation etc. Besides,
words, the ‘person arrested’ under FERA or
a statutory duty is enjoined on them to
Customs Act is assimilated with the char-
inform the arrestee of the grounds for such
acteristics of an ‘accused’ within the range
arrest as contemplated under Article 22(1)
of Section 167(1) and as such liable to be
of the Constitution and Section 50 of the
detained under Section 167(2) by a Mag-
Code. Therefore, they have necessarily to
istrate when produced before him.”
make records of their statutory functions
105. The Court went on to consider the showing the name of the informant, as well
impact of other laws in regard to the scope of as the name of the person who violated any
the expression “Police Officer”. It held as other provision of the Code and who has
follows: been guilty of an offence punishable under
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286 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
the Act, nature of information received by 107. It also found the following powers
them, time of the arrest, seizure of the available under five Central enactments:
contraband if any and the statements re-
corded during the course of the detection of
the offence/offences.”
Sl. No. Name of the Act Power to Power to Power to
search prem- search sus- search per-
ises pected per- sons
sons, entering
or leaving In-
dia
1 2 3 4 5
1. Foreign Exchange Regulation Act, 1973 Sec. 37 Sec. 34 Sec. 34
2. The Customs Act Sec. 105 Sec. 100 Sec. 101
3. The Gold (Control) Act (now repealed) Sec. 58 — Sec. 60
4. The Prevention of Food Adulteration Act. Sec. 10(2) S. 6 to be r/w —
S. 18 or the
Sea Customs
Act.
5. The Railway Property (Unlawful Posses- Sec. 10 and — —
sion) Act. Sec. 11
Power to stop and Power to seize Power to arrest. Power to examine Power to summon
search convey- goods, documents persons persons to give evi-
ances etc. dence and produce
documents
6 7 8 9 10
Sec. 36 Sec. 38 Sec. 35 Sec. 39 Sec. 40
Sec. 106 Sec. 110 Sec. 104 Sec. 107 Sec. 108
Sec. 61 Sec. 66 Sec. 68 Sec. 64 Sec. 63
— Sec. 10\ Sec. 10(B)\ — —
— — Sec. 6 — Sec. 9
108. The Court further held as follows: Section 190(1)(b) of the Code whereas the
“116. It should not be lost sight of the fact empowered or authorised officer of the
that a police officer making an investiga- special Acts has to file only a complaint of
tion of an offence representing the State facts constituting any offence under the
files a report under Section 173 of the Code provisions of the Act on the receipt of which
and becomes the complainant whereas the the Magistrate may take cognizance of the
prosecuting agency under the special Acts said offence under Section 190(1)(a) of the
files a complaint as a complainant i.e. under Code. After taking cognizance of the of-
Section 61(ii) in the case of FERA and fence either upon a police report or upon
under Section 137 of the Customs Act. To receiving a complaint of facts, the Magis-
say differently, the police officer after con- trate has to proceed with the case as per the
summation of the investigation files a re- procedure prescribed under the Code or
port under Section 173 of the Code upon under the special procedure, if any, pre-
which the Magistrate may take cognizance scribed under the special Acts. Therefore,
of any offence disclosed in the report under the word ‘investigation’ cannot be limited
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(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 287
only to police investigation but on the other which powers are not available to a Police
hand, the said word is with wider conno- Officer in regard to offences under Chapter IV
tation and flexible so as to include the of the Act, the interpretation that avoids such
investigation carried on by any agency a futile exercise, which also is unauthorized
whether he be a police officer or empow- and illegal in law, should be adopted.
ered or authorised officer or a person not 110. We do agree with the learned Amicus
being a police officer under the direction of Curie that the Police Officer, for instance,
a Magistrate to make an investigation cannot be approached by any person with a
vested with the power of investigation.” complaint that a cognizable offence under
(Emphasis supplied) Chapter IV of the Act has been committed and
he is not bound to register the FIR in terms of
109. In fact, as laid down in Directorate of
the law which is being held down by this court
Enforcement v. Deepak Mahajan and Another
in Lalita Kumari v. Government of Uttar
(supra), the power of arrest can be conferred
Pradesh and Others (supra). This is for the
on persons other than a Police Officer. We are, reason that if he were to register an FIR, then,
for the moment, excluding the position under he would have to pass on to the stage of
the CrPC that even a private person can arrest Section 157 of the CrPC and, furthermore,
as provided in Section 43 of the CrPC. The carry out investigation, as understood in law,
Foreign Exchange Regulation Act, 1973 for which neither is he deemed qualified or
(hence repealed); the Customs Act, 1962; the empowered by the Law Giver nor is he
Gold (Control) Act, 1968 (repealed); the Pre- entitled to file a Report under Section 173 of
vention of Food Adulteration Act, 1954 the CrPC.
(hence repealed) and the Railway Property
(Unlawful Possession) Act, 1966, in Sections Power of arrest under the Act
35, 104, 68, 10B and Section 6, respectively, 111. We are faced with a situation which
conferred power of arrest on the Officers projects a discord between two Statutes, viz.,
under these Acts. Therefore, if we interpret the CrPC and the Act, and the only silver-
Section 22(1)(d) of the Act, as comprehending lining appearing on the horizon, is the ambit
the power of arrest with the Drugs Inspector, of the power under Section 22(1)(d) of the
then, his competency to arrest, a requirement Act. We may recapitulate the said provision,
in law, as laid down again in Directorate of at this juncture. It reads as follows:
Enforcement v. Deepak Mahajan and Another “22. Powers of Inspectors. – (1) Subject to
(supra) (See paragraph-54), would stand sat- the provisions of section 23 and of any rules
isfied. However, the further question is, what made by the Central Government in this
is the procedure to be followed by the Inspec- behalf, an Inspector may, within the local
tor, and still finally, whether the Police Offi- limits of the area for which he is appointed,-
cer, under the CrPC, will stand deprived of the
power to arrest. The argument of the learned xxx xxx xxx xxx
Amicus Curiae appears to be that since a (d) Exercise such other powers as may be
Police Officer, once he registers an FIR under necessary for carrying out the purposes of
Section 154 of the CrPC, is duty-bound to this Chapter or any rules made there under.”
carry the matter to its logical conclusion, viz.,
Apart from the same, there is no express
to investigate the matter as provided in the
CrPC, and finally, file a Report under Section power of arrest under the Act on the Drugs
173(2) of the CrPC, to persuade the Court to Inspector.
take cognizance in an appropriate case, all of Some enactments containing provisions simi-
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288 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
lar to Section 22(1)(D) of the Act punishable under section 132 or section 133
112. We may notice that the Seeds Act, or section 135 or section 135A or section
136, he may arrest such person and shall, as
1966 (Section 14(1)(e), the Insecticides Act,
soon as may be, inform him of the grounds
1968 (Section 21(f)), the Kerala Fish Seed for such arrest.
Act, 2014 (Section 19(1)(e), Uttarakhand
Ground Water (Regulation and Control of (2) Every person arrested under sub-section
Development and Management) Act, 2016 (1) shall, without unnecessary delay, be
[Section 13(1)(j)], contain provisions similar taken to a magistrate.
to what is contained in Section 22(1)(d) of the (3) Where an officer of customs has ar-
Act. rested any person under sub-section (1), he
shall, for the purpose of releasing such
113. The Weekly Holidays Act, 1942 [Sec- person on bail or otherwise, have the same
tion 8(1)(c)], the Jammu and Kashmir Facto- powers and be subject to the same provi-
ries Act, 1999 [Section 9(1)(c)], contained sions as the officer-in-charge of a police-
provisions which confer power on the Au- station has and is subject to under the
thorities under the Act to exercise such other 4Code of Criminal Procedure, 1898 (5 of
power as may be necessary for carrying outer 1898).
purposes of the enactment. As far as the Shops
(4) Notwithstanding anything contained in
and Commercial Establishment Act, 1958 the Code of Criminal Procedure, 1973 (2 of
[Section 19(1)(c)], after conferring the power 1974), any offence relating to —
to exercise such powers, as may be necessary
for carrying out the Act, the Law Giver carves (a) prohibited goods; or
out a limitation by way of a proviso that no one (b) evasion or attempted evasion of duty
shall be required, under the said Section, to exceeding fifty lakh rupees, shall be cog-
answer any question or give any evidence nizable.
tending to incriminate him. Such a proviso is (5) Save as otherwise provided in sub-
also found in the Private Medical Establish- section (4), all other offences under the Act
ment Act, 2007 [vide Section 21(1)(b)] as also shall be non-cognizable.
in the Jammu and Kashmir Factories Act,
1999. (6) Notwithstanding anything contained in
the Code of Criminal Procedure, 1973, (2 of
Specific statutes Conferring Powers of Arrest; 1974) an offence punishable under section
Cognizable versus Non-Cognizable Offence 135 relating to —
114. It is, however, relevant to notice the (a) evasion or attempted evasion of duty
provisions of the enactments containing the exceeding fifty lakh rupees; or
power to arrest and referred to in Directorate
of Enforcement v. Deepak Mahajan and An- (b) prohibited goods notified under section
other (supra). Section 104 of the Customs Act, 11 which are also notified under sub-clause
1962, at present, reads as follows: (C) of clause (i) of sub-section (1) of
section 135; or
“104. Power to arrest. –(1) If an officer of
customs empowered in this behalf by gen- (c) import or export of any goods which
eral or special order of the 3[Principal have not been declared in accordance with
Commissioner of Customs or Commis- the provisions of this Act and the market
sioner of Customs] has reason to believe price of which exceeds one crore rupees; or
that any person in India or within the Indian (d) fraudulently availing of or attempt to
customs waters has committed an offence avail of drawback or any exemption from
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(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 289
duty provided under this Act, if the amount (1) Any Gold Control Officer authorised by
of drawback or exemption from duty ex- the Administrator in this behalf may, if he
ceeds fifty lakh rupees, shall be non- has reasons to believe that any person has
bailable. contravened, or is contravening, or is about
(7) Save as otherwise provided in sub- to contravene any provision of this Act,
section (6), all other offences under this Act arrest such person and shall as soon as
shall be bailable.4” possible inform him of the grounds for such
arrest and shall take such arrested person to
115. Section 35 of The Foreign Exchange the nearest magistrate within a period of
Regulation Act (FERA), 1973 read as follows twenty-four hours of such arrest excluding
(FERA came to be repealed by The Foreign the time necessary for the journey from the
Exchange Management Act (FEMA), 1999]: place of arrest to the court of the magistrate
“35. Power to arrest.—(1) If any officer of and no such person shall be detained in
Enforcement authorised in this behalf by custody beyond the said period without the
the Central Government, by general or authority of a magistrate.
special order, has reason to believe that any (2) Any officer who has arrested any person
person in India or within the Indian customs under this section shall, for the purpose of
waters has been guilty of an offence pun- releasing such person on bail or otherwise,
ishable under this Act, he may arrest such have the same powers and be subject to the
person and shall, as soon as may be, inform same provisions as the officer-in-charge of
him of the grounds for such arrest. a police station has, and is subject to, under
the Code of Criminal Procedure, 1898 (5 of
(2) Every person arrested under sub-section 1898).”
(1) shall, without unnecessary delay, be
taken to a magistrate. (Emphasis supplied)
(3) Where any officer of Enforcement has 117. Section 10(8) of The Prevention of
arrested any person under sub-section (1), Food Adulteration Act, 1954 (37 Of 1954),
he shall, for the purpose of releasing such read as follows:
person on bail or otherwise, have the same “10(8) Any food inspector may exercise the
powers and be subject to the same provi- powers of a police officer under section 42
sions as the officer-in-charge of a police of the Code of Criminal Procedure, 1973 (2
station has, and is subject to, under the of 1974) for the purpose of ascertaining the
1[Code of Criminal Procedure, 1973 (2 of true name and residence of the person from
1974)].” whom a sample is taken or an article of food
116. Section 68 of the Gold (Control) Act, is seized.”
1968 (which also stands repealed in 1990), It may be noticed that Section 42 of the
read as follows: Cr.P.C. confers power of arrest on a Police
“68. Power to arrest. Officer to arrest even in regard to a non-
4 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.

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290 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
cognizable offence in the circumstances men- (3) The officers referred to in sub-section
tioned therein without a warrant. (1) shall exercise the like powers which are
118. Finally, Section 6 of The Railway conferred on income-tax authorities under
Property (Unlawful Possession) Act, 1966, the Income-tax Act, 1961 (43 of 1961) and
read as follows: shall exercise such powers, subject to such
limitations laid down under that Act.”
“6. Power to arrest without warrant.—Any
superior officer or member of the Force 120. The provision for arrest is contained in
may, without an order from a Magistrate the Second Schedule to the Income-Tax Act as
and without a warrant, arrest any person a mode of recovery of tax.
who has been concerned in an offence 121. A perusal of Section 104(4) of the
punishable under this Act or against whom Customs Act, as it stood when this Court
a reasonable suspicion exists of his having decided Directorate of Enforcement v. Deepak
been so concerned.” Mahajan and Another (supra), would show
that while an express power was conferred on
Here, it is relevant to notice that the persons
the Customs Officer to arrest under Section
empowered are members of the force, which
104(1), it was considered to be non-
is defined as being members of the force and cognizable offence. Further, the power of
the word ‘force’ is defined as the Railway arrest was confined only to an offence com-
protection force constituted under the Railway mitted under Section 135 of the Act. It is
Protection Force Act, 1957. It is an armed apposite to notice that under the CrPC, there
force. is no power with the Police Officer to arrest in
119. In the Foreign Exchange Management the case of a non-cognizable offence except
Act, 1999, there is no express power of arrest, upon a Warrant or Order of a Magistrate.
as such conferred. Instead, it is relevant to 122. In this regard, it may also be apposite
notice Section 37 of the said enactment: to refer to the provisions of the Central Excise
“37. Power of search, seizure, etc.— Act, 1944. Section 13 confers the power to
arrest. It reads as follows:
(1) The Director of Enforcement and other
officers of Enforcement, not below the rank “13. Power to arrest:- Any Central Excise
of an Assistant Director, shall take up for Officer not below the rank of Inspector of
investigation the contravention referred to Central Excise may, with the prior approval
in section 13. —(1) The Director of En- of the Principal Commissioner of Central
forcement and other officers of Enforce- Excise or Commissioner of Central Excise,
ment, not below the rank of an Assistant arrest any person whom he has reason to
Director, shall take up for investigation the believe to be liable to punishment under
contravention referred to in section 13.” this Act or the rules made thereunder.”
(2) Without prejudice to the provisions of 123. However, Section 9A, as it stood prior
sub-section (1), the Central Government to it being amended from the year 2004
may also, by notification, authorise any onwards, declared that the offences under
officer or class of officers in the Central Section 9 were to be deemed to be non-
Government, State Government or the Re- cognizable under the provisions of the Code of
serve Bank, not below the rank of an Under Criminal Procedure. In Sunil Gupta v. Union
Secretary to the Government of India to of India 2000(118) ELT 8 P&H, the Division
investigate any contravention referred to in Bench of the Punjab and Haryana High Court
section 13. had to answer the question as to whether the
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(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 291
power of arrest, under Section 13 of the Act, reported in Bhavin Impex Pvt. Ltd. v. State of
could be exercised without a warrant, in view Gujarat 2010 (260) ELT 526 (Gujarat), as
of the fact that under Section 9A, the offence follows:
was declared as non-cognizable. The Court “1. The key question that arises for con-
took the view that Section 13 embodied a sideration in this writ petition is as to
substantive power. It held, inter alia, as fol- whether the authorities under the Central
lows: Excise Act, 1944 (hereinafter referred to as
“21. In our view, Section 13 embodies a ‘the Act’) have the power to arrest a person
substantive power. It confers the power to under Section 13 of the Act without a
arrest. The procedural safeguards have warrant and without filing an FIR or lodg-
been protected by Section 18. This provi- ing a complaint before a Court of compe-
sion merely regulates the exercise of power tent jurisdiction.”
under Section 13. It only provides that the
125. The Court purported to follow the
searches and arrests under the Central Ex-
Punjab and Haryana High Court in Sunil
cise Act “shall be carried out in accordance
Gupta v. Union of India (supra), which we
with the provisions of the Code of Criminal
have referred and held, inter alia, as follows:
Procedure .....” In other words, an officer of
the Central Excise shall make the arrest in “This Court is in agreement with the view
the manner laid down in Section 46 of the taken by the Punjab and Haryana High
Code of Criminal Procedure. He “shall Court, viz, a Central Excise Officer, (sat-
actually touch or confine the body of the isfying the conditions laid down under
person to be arrested.....” In case of resis- Section 13) is not debarred from arresting
tance, the officer of the Central Excise a person without a warrant when he has
“may use all means necessary to effect the reason to believe that the person is liable to
arrest.” The persons arrested “shall not be punishment under the Act or the rules made
subjected to more restraint than is neces- thereunder. Section 13 is not curtailed by
sary to prevent his escape.” Similarly, a Section 18 and in fact Section 18 is merely
search shall be carried out in accordance procedural.”
with the procedure laid down in Section
100. If the person of a lady has to be 126. We must, however, notice the judg-
searched, it shall be done “by another ment of this Court reported in Om Parkash
woman with strict regard to decency.” Two and Another v. Union of India and Another
or more independent and respectable in- LNIND 2011 SC 2553 : (2011)14 SCC 1 : AIR
habitants of the locality shall be called upon 2012 SC 545, a Judgment, which dealt with
to be present. The search shall be made in the Central Excise Act, 1944 and also the
their presence and “a list of things seized in Customs Act, 1962. The question, however,
the course of such search ..... shall be which arose was, whether under the said
prepared ......” In a nut shell, the procedural enactments, as the offences were non-
protection contained in the Code of Crimi- cognizable, were they bailable as well? Sec-
nal Procedure has been guaranteed even in tion 9A, as it was considered by this Court,
case of arrests and searches under the read as follows:
Central Excise Act, 1944. No more.”
“9A. Certain offences to be
124. A Single Judge of the High Court of non-cognizable.-(1) Notwithstanding any-
Gujarat, also posed the following question as thing contained in the Code of Criminal
the one which it had to answer in the case Procedure, 1898 (5 of 1898), offences un-
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292 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
der section 9 shall be deemed to be non- of deciding the case before us, is the statement
cognizable within the meaning of that of the law as contained in paragraph-41,
Code. which reads as follows:
(2) Any offence under this Chapter may, “41. In our view, the definition of “non-
either before or after the institution of cognizable offence” in Section 2(l) of the
prosecution, be compounded by the Chief Code makes it clear that a non-cognizable
Commissioner of Central Excise on pay- offence is an offence for which a police
ment, by the person accused of the offence officer has no authority to arrest without
to the Central Government, of such com- warrant. As we have also noticed herein-
pounding amount and in such manner of before, the expression “cognizable of-
compounding, as may be prescribed. fence” in Section 2(c) of the Code means an
Provided that nothing contained in this offence for which a police officer may, in
sub-section shall apply to - accordance with the First Schedule or under
(a) a person who has been allowed to any other law for the time being in force,
compound once in respect of any of the arrest without warrant. In other words, on a
offences under the provisions of clause (a), construction of the definitions of the dif-
(b), (bb), (bbb), (bbbb) or (c) of sub-section ferent expressions used in the Code and
(1) of Section 9; also in connected enactments in respect of
a non-cognizable offence, a police officer,
(b) a person who has been accused of and, in the instant case an excise officer,
committing an offence under this Act which will have no authority to make an arrest
is also an offence under the Narcotic Drugs without obtaining a warrant for the said
and Psychotropic Substances Act, 1985 (61 purpose. The same provision is contained
of 1985); in Section 41 of the Code which specifies
(c) a person who has been allowed to when a police officer may arrest without
compound once in respect of any offence order from a Magistrate or without war-
under this Chapter for goods of value rant.”
exceeding rupees one crore; (Emphasis supplied)
(d) a person who has been convicted by the
court under this Act on or after the 30th day 128. The Court applied the same principles
of December, 2005.” in regard to the cases which it decided under
the Customs Act. We may notice that Section
127. The Court did make reference to both 18 of the Central Excise Act, 1944 provides
Sunil Gupta v. Union of India (supra) and for the manner of making an arrest. It reads as
Bhavin Impex Pvt. Ltd. v. State of Gujarat follows:
(supra). This Court went on to find, on an “18. Searches and arrests how to be made.-
examination of the provisions, that being All searches made under this Act or any
non-cognizable offences under the Central rules made thereunder and all arrests made
Excise Act, and taking note of the fact that as under this Act shall be carried out in
a general rule, though, with exceptions under accordance with the provisions of the Code
the First Schedule to the CrPC, non- of Criminal Procedure, 1898(5 of 1898),
cognizable offences were treated as bailable, relating respectively to searches and arrests
and also, taking note of Section 20 of the made under that Code.”
Excise Act, which appeared to show that the
offences were bailable that they were bailable. 129. Equally of interest, are the provisions
What is, however, noteworthy for the purpose contained in Sections 19, 20 and 21:
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(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 293
“19. Disposal of persons arrested.- Every accused person on his executing a bond,
person arrested under this Act shall be with or without sureties as the Central
forwarded without delay to the nearest Excise Officer may direct, to appear, if and
Central Excise Officer empowered to send when so required, before the Magistrate
persons so arrested to a Magistrate, or, if having jurisdiction, and shall make a full
there is no such Central Excise Officer report of all the particulars of the case to his
within a reasonable distance, to the officer official superior.”
in charge of the nearest police station. 130. On a perusal of the statement of law
20. Procedure to be followed by officer in contained in paragraph-41, we find that this
charge of police station.- The officer in Court has found that as the provisions under
charge of a police station to whom any the enactments in question declared the of-
person is forwarded under Section 19 shall fences to be non-cognizable, the officer ex-
ercising the power of arrest, could not arrest,
either admit him to bail to appear before the
except after obtaining a warrant for the said
Magistrate having jurisdiction, or in default purpose. That they may not arrest without
of bail forward him in custody to such obtaining a warrant in respect of the non-
Magistrate. cognizable offences, being the view taken by
21. Inquiry how to be made by Central this Court, cannot be squared with the view
Excise Officers against arrested persons taken by Punjab and Haryana High Court and
forwarded to them under Section 19. – Gujarat High Court, respectively, in Sunil
Gupta v. Union of India (supra) and also
(1) When any person is forwarded under
Bhavin Impex Pvt. Ltd. v. State of Gujarat
Section 19 to a Central Excise Officer (supra), which took the view in effecting
empowered to send persons so arrested to a arrest under the Central Excise Act, no war-
Magistrate, the Central Excise Officer shall rant was required. It is apparently consequent
proceed to inquire into the charge against upon the same that Legislature stepped in with
him. amendments. Section 9A came to be amended
(2) For this purpose the Central Excise and it reads as follows after the amendment:
Officer may exercise the same powers and “Section 9A. Certain offences to be
shall be subject to the same provisions as non-cognizable.-
the officer in charge of a police station may
exercise and is subject to under the Code of (1) Notwithstanding anything contained in
Criminal Procedure, 1898 (5 of 1898), the Code of Criminal Procedure, 1973(2 of
when investigating a cognizable case: 1974), offences under section 9, except the
offences referred to in sub-section (1A),
Provided that- shall be non-cognizable within the meaning
(a) If the Central Excise Officer is of of that Code.
opinion that there is sufficient evidence or (2) Any offence under this Chapter may,
reasonable ground of suspicion against the either before or after the institution of
accused person, he shall either admit him to prosecution, be compounded by the Prin-
bail to appear before a Magistrate having cipal Chief Commissioner of Central Ex-
jurisdiction in the case, or forward him in cise or Chief Commissioner of Central
custody to such Magistrate; Excise on payment, by the person accused
(b) If it appears to the Central Excise of the offence to the Central Government,
Officer that there is not sufficient evidence of such compounding amount and in such
or reasonable ground of suspicion against manner of compounding as may be pre-
the accused person, he shall release the scribed:
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294 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
Provided that nothing contained in this relating to evasion or attempted evasion of
sub-section shall apply to --- duty exceeding 50 lakhs rupees (w.e.f.
(a) a person who has been allowed to 01.08.2019), while the offence is cognizable,
the power of arrest is conferred on the Officers
compound once in respect of any of the
under Section 104(1). The power to arrest is
offences under the provisions of clause conferred and the only condition to be fulfilled
(a),(b),(bb),(bbb),(bbbb) or (c) of sub- is that the Officer has reason to believe that the
section (1) of section 9; person has committed offence concerned. The
(b) a person who has been accused of position is the same in respect of offence
committing an offence under this Act which relating to prohibited goods.
is also an offence under the Narcotic Drugs 133. We have embarked upon referring to
and Psychotropic Substance Act, 1985 (61 the provisions relating to arrest under the
of 1985); Excise Act and Customs Act and the decision
(c) a person who has been allowed to of this Court in Om Parkash and Another v.
compound once in respect of any of the Union of India and Another (supra) in taking
offence under this Chapter for goods of the view as it did in paragraph-41, in order to
value exceeding rupees one crore; appreciate the contention that, after the
amendment to Section 36AC, the offences
(d) a person who has been convicted by the have been declared cognizable. If we proceed
court under this Act on or after the 30th day on the basis that the power of arrest can be
of December, 2005.” traced from Section 22(1)(d) of the Act, then,
(Emphasis supplied) after the amendment in Section 36AC, by
which, the offences falling under Chapter IV
131. The result would appear to be that of the Act, which are declared as cognizable
acknowledging the effect of making the of- and non-bailable, the decks are cleared for
fences being non-cognizable to be to limit the effecting arrest without a warrant by the
power of the authorities under the Act for Inspector.
effecting arrest under the Act, to require a 134. However, the question would arise
warrant, certain offences were declared to be whether there exists the power of arrest with
cognizable as noticed in Section 9A, as the Drugs Inspector. We will, on the one hand,
amended after the Judgment in Om Parkash array possible objections to the conferment of
and Another v. Union of India and Another such powers. The power to arrest is a drastic
(supra). The resultant position after the power. It involves encroachment on personal
amendment is, it became open to the Officers liberty. The Drugs Inspector is not a Police
to effect the arrest in regard to a cognizable Officer under the CrPC. The Legislature was
offence without obtaining a warrant. aware of the power of the Police Officer to
132. In regard to the Customs Act, 1962 in arrest when he embarks on investigation of a
Section 104, under the present avatar, two cognizable case, as is clear from Section 157
changes have been brought about. Firstly, the of the CrPC. There is another indication in the
power to arrest is available in respect of Act which may reveal the mind of the Leg-
offences under Sections 132, 133, 135, 135A islature that the power of arrest was not
and 136. The offences are divided into two intended to be conferred on the Drugs Inspec-
categories. Under Section 104(4), the offences tor. Section 34AA, reads as follows:
which fall within its ambit, are treated as “34AA.- Penalty for vexatious search or
cognizable. The other offences are treated as seizure.—Any Inspector exercising powers
non-cognizable under Section 104(5). For under this Act or the rules made thereunder,
instance, if a person is involved in an offence who—
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(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 295
(a) without reasonable ground of suspicion be punishable with fine which may extend
searches any place, vehicle, vessel or other to two thousand rupees or with imprison-
conveyance; or ment for a term which may extend to two
(b) vexatiously and unnecessarily searches years or with both.”
any person; or (Emphasis supplied)
(c) vexatiously and unnecessarily seizes 136. Still further, as we have noticed in the
any drug or cosmetic, or any substance or Central Excise Act, 1944, apart from the fact
article, or any record, register, document or
that the power of arrest is expressly conferred,
other material object; or
the manner, in which the power is to be
(d) commits, as such Inspector, any other exercised, is specifically indicated, as we have
act, to the injury of any person without noticed on a perusal of Sections 19 and 20.
having reason to believe that such act is Section 68 of the Gold Control Act, 1968 has
required for the execution of his duty, shall expressly conferred power of arrest, the con-
be punishable with fine which may extend ditions in which the power could be exercised
to one thousand rupees.” and further procedure to be followed.
There is no reference to arrest forming the 137. We have noticed that the Inspector
subject matter of penalty. under the Act has been conferred with a vast
135. In contrast, we must notice Section 22 and formidable array of powers, and in an
of the Central Excise Act, 1944, reads as enactment like the Act, the taking of samples,
follows: the Report given by the Competent Officer in
regard to the same and the right reserved to the
“22. Vexatious search, seizure, etc., by concerned person to seek a further Report
Central Excise Officer.—Any Central Ex- from the Central Laboratory, go a long way in
cise or other officer exercising powers the successful culmination of a complaint
under this Act or under the rules made under Section 32 of the Act. The Inspector is,
thereunder who— undoubtedly, endowed with the power of
(a) without reasonable ground of suspicion inspection, taking samples of any drug or
searches or causes to be searched any cosmetic, searching any person, searching any
house, boat or place; place, searching any vehicle, examining re-
(b) vexatiously and unnecessarily detains, cords, registers, documents and other material
searches or arrests any person; objects and seizing the same, requiring any
person to produce any record, register or other
(c) vexatiously and unnecessarily seizes the document. These are powers which are ex-
movable property of any person, on pre- pressly conferred on the Inspector. Though, a
tence of seizing or searching for any article complaint could be filed by other categories of
liable to confiscation under this Act; complainants in Section 32 of the Act, the
(d) commits, as such officer, any other act Inspector is pivot around which the Act
to the injury of any person, without having moves. Rule 51(4) makes it a duty on the part
reason to believe that such act is required of the Drugs Inspector to investigate any
for the execution of his duty, shall, for every complaint in writing which may be made to
such offence, be punishable with fine which him. It is also his duty under Rule 51(5) to
may extend to two thousand rupees. Any institute prosecution in respect of breaches of
person wilfully and maliciously giving the Act and the Rules thereunder. He is also
false information and so causing an arrest duty-bound under Rule 51(7) to make inqui-
or a search to be made under this Act shall ries and inspections as may be necessary to
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296 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
detect sale of drugs in contravention of the given an opportunity to oppose the application
Act. Under Rule 52, in regard to manufacture and when the public prosecutor opposes the
of drugs, it is again the duty to institute application, the Court is to be satisfied that
prosecution for breaches besides making in- there are reasonable grounds for believing that
spections of all premises. This is having the accused person is not guilty of such
regard to both his qualifications and also the offence and that he is not likely to commit an
powers conferred on him. Section 23 of the offence. This limitation, is apart from the
Act, undoubtedly, is the procedure to be limitations in the CrPC, inter alia. Now, the
followed by the Inspector. We are, therefore, Police Officer acting under the CrPC even
to ascertain the meaning of the expression proceeding for a moment on the basis that it
“other powers”, which are essential for car- is sufficient that a mere memorandum of arrest
rying out the object of Chapter IV and the as required under the CrPC is prepared and
Rules made thereunder. The Legislature has further there is compliance with other provi-
not given any hint, intending to limit the scope sions of the CrPC also, would it suffice is the
of the residuary powers. No doubt, the Act is question that would arise in the following
a pre-Independence Act. If we interpret that it manner? We have noted from the provisions
is a Drugs Inspector, acting under Section 22 of the Act and the Rules that it is the Drugs
of the Act, who alone can investigate offences Inspector who is empowered and duty bound
falling under Chapter IV of the Act and there to investigate the complaint about violations
is no power for the Police Officer under the of acts and rules. He is the person charged with
CrPC to investigate under the Act or to file a a duty of prosecuting the offenders. If the
Report under Section 173 of the CrPC, which police officer is merely to be granted a power
indeed is indisputable, then, a power of arrest, of arrest and without having any power of
which is necessary for the purpose of inves- investigation then how would it be possible
tigating and prosecution of the offences fall- for the police officer to make any investiga-
ing within Chapter IV of the Act, must be tion under the act and if no investigation is
conceded to the Drugs Inspector. The legis- possible, how would the Police Officer be in
lative intention in conferring various powers, a position to be of any assistance to the Public
as we have noticed in the foregoing provisions Prosecutor and, therefore, to the Court in the
of Section 22 of the Act and declaring that all disposal of an application for bail? In other
other powers, which are necessary for the words, it would be based on the records of
purpose of the Act, are to inhere in the Drugs investigation and material collected by the
Inspector, reassures us that we would be investigating officer that a Court in a case
correctly ascertaining the legislative intention would decide as to whether bail is to be
to be that on a Drug Inspector taking-up a granted or not. How would the police officer
matter falling under Chapter IV of the Act, he seek a remand for carrying out investigation
is invested with the power to arrest. which he cannot do? If the Act and the Rules
138. There is another aspect which may do not contemplate investigation by a Police
have an important bearing on the issue. Under Officer, then, conferring the power of arrest on
Section 36AC of the Act, the offences as the Police Officer, would, in fact, frustrate the
mentioned therein which include some of the working of the Act. On the other hand, if it is
offences under Chapter IV of the Act are the Drugs Inspector who can arrest, the fol-
declared cognizable and non-bailable. The lowing consequences would follow:
provision imposes restriction on the arrested a. He has the requisite technical qualifica-
person being released on bail or on his own tions to properly investigate and prosecute the
bond unless the public prosecutor has been offender.
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(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 297
b. He would be able to make adequate nate in, in the safe hands of the competent and
entries in whatever document he has to main- qualified Statutory Authority, as designated
tain as a part of investigation and it would by law. It would also avoid an outside agency
facilitate a proper and fair consideration of an like a Police Officer, being obliged to register
application for bail within the meaning of an FIR, for the reason that where arrest has to
Section 36AC of the Act and also facilitate a be made, a FIR is to be registered, and, when
request for remand under Section 167 of the the registering of the FIR carries with it an
Cr.P.C. unattainable object of preferring a Final Re-
139. Declaring the power to arrest with the port under Section 173 of the CrPC, as far as
Inspector, is not to be understood as proclaim- the Police Officer is concerned. We make it
ing that the Inspector is bound to arrest any clear that if a Police Officer is approached
person. The provisions of the CrPC, relating to with regard to a complaint regarding commis-
arrest, would necessarily have to be followed sion of an offence falling under Chapter IV of
by the Drugs Inspector. In fact, he is obliged the Act, he is not to register an FIR unless it
to bear in mind the law, as declared by this be that a cognizable offence, other than an
Court in D.K. Basu v. State of West Bengal offence falling under Chapter IV of the Act, is
(supra), and the peril of defying the same, also made out. He must makeover the com-
would be to invite consequences, inter alia, as plaint to the competent Drug Inspector so that
are provided therein. As far as the arrest, not action in according with law is immediately
being mentioned in Section 34AA, as forming taken where only offences under Chapter IV
a ground for visiting the delinquent Officer are made out.
with penalty, it may be noticed that there is a 142. As far as the arrest contemplated under
residuary power in Section 34AA and it would Section 41 of the CrPC is concerned, in case
cover any act. We notice that Section 34AA(d) a cognizable offence, falling under Chapter IV
provides that if any Inspector, exercising of the Act, is committed, either in the presence
powers under the Act or the Rules made of the Drugs Inspector, or in respect of which
thereunder, commits, as such Inspector, any offence, a Police Officer would have power to
other act, to the injury of any person without arrest, as provided therein, viz., covered by the
having reason to believe that such act is situations contemplated under Section 41(ba),
required for the execution of his duty, he shall the Drugs Inspector would be entitled to effect
be punishable with fine which may extend to the arrest. We are arriving at this conclusion
one thousand rupees. on the basis that since the procedure under the
140. Regarding the power for seeking and CrPC is to be read as applicable, except to the
ordering a remand under Section 167, we extent that a different procedure is to be
would apply the principles laid down by this provided under the Act, and since there is no
Court in Directorate of Enforcement v. procedure or power otherwise provided in the
Deepak Mahajan and Another (supra) and the Act in regard to arrest, the powers and pro-
same principles would apply. cedure available to a Police Officer, with the
141. This process of interpretation would limitations on the said power, as laid down in
produce the result of harmonizing two seem- D.K. Basu v. State of West Bengal (supra), as
ingly irreconcilable commands from the Law- also as contained in the CrPC, would be
Giver. This interpretation commends itself to applicable.
us for the reason that the investigation into 143. By way of following Directorate of
offences, under Chapter IV of the Act, would Enforcement v. Deepak Mahajan and Another
commence, be carried out and would culmi- (supra), we hold that the Drugs Inspector,
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298 SC Madras Law Journal Reports — (Criminal) (2020) 4 MLJ (Crl)
under the Act, is invested with certain powers State Government for the purpose of carrying
similar to a Police Officer. Still further, we into execution, in the State, any of the provi-
would hold that the word “investigation” sions of the Act or any Rule or Order made
cannot be limited only to a Police investiga- thereunder. It is for the Central Government to
tion, as has been noted in Directorate of consider the question whether it can, under the
Enforcement v. Deepak Mahajan and Another said provision, issue directions in regard to the
(supra). Thirdly, we find that the power to power of arrest, which we have found, subject
arrest a person must indeed flow from the to what we have stated in this Judgment.
provisions of a Statute. The statutory provi-
sion under the Act is Section 22(1)(d). The 146. Further, Section 58 of the CrPC pro-
arrested person, under the Act, would be an vides that the Officers In-charge of Police
accused person to be detained under Section Stations are to report cases of all persons
167(2) of the CrPC. No doubt, the Police arrested without warrant as provided therein.
Officer is bound to provide assistance to the We make it clear that the Drugs Inspector
Inspector in case of need to effectuate the must, apart from other relevant provisions of
arrest where there is resistance or likelihood of the CrPC, comply with the requirement of
resistance. No doubt, in regard to the arrest in reporting. In view of the need to safeguard the
relation to offences falling under Chapter IV interest of persons, who may be proceeded
of the Act, which do not fall under Section against by the Drugs Inspector, we also hold
36AC, the power of arrest would depend upon and direct that the Drugs Inspector will im-
the provision in the Schedule to the CrPC. mediately, after arrest, make a report of the
144. We again reiterate that the existence of arrest to his superior Officer.
the power to arrest with the Drugs Inspector 147. It has been brought to our notice that
is not to be understood as opening the doors FIRs have been filed in regard to offences
to making illegal, unauthorized or unneces- under Chapter IV of the Act. In the view we
sary arrest. Every power comes with respon- have taken, no further investigation can be
sibility. In view of the impact of an arrest, the done by the Police Officer. However, it is in
highest care must be taken to exercise the
the interest of justice that the FIRs are made
same strictly as per the law. The power of
over by the Police Officers to the concerned
arrest must be exercised, recognizing the
source of his authority, to be Section 22(1)(d) Drugs Inspector at the earliest. We are per-
of the Act, which is for carrying out the suaded to issue such directions in the exercise
purpose of Chapter IV of the Act or any Rules of our powers under Article 142 of the Con-
made thereunder. stitution of India.
145. Section 33P of the Act, reads as 148. It would appear that on an understand-
follows: ing of the provisions, arrests would have been
effected by Police Officers in regard to the
“33P. Power to give directions.—The Cen-
cognizable offences under Chapter IV of the
tral Government may give such directions
Act. Having regard to the fact that we are
to any State Government as may appear to
resolving this controversy on a conspectus of
the Central Government to be necessary for
the various provisions of the Act and the
carrying into execution in the State any of
CrPC, we are inclined to direct that this
the provisions of this Act or of any rule or
Judgment, holding that Police Officers do not
order made thereunder.”
have power to arrest in regard to cognizable
We notice that the Central Government is offences under Chapter IV of the Act, is to
conferred with powers to give directions to the operate from the date of this Judgement.
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(2020) 4 MLJ (Crl) Union of India v. Ashok Kumar Sharma SC 299
149. Before we proceed to the operative in D.K. Basu v. State of West Bengal (supra)
portion of our Judgment, we must express the and to follow the provisions of CrPC.
hope that the vexed issues which we have V. It would appear that on the understand-
resolved through this Judgment, in regard to ing that the Police Officer can register a FIR,
the power of arrest, may engage the competent there are many cases where FIRs have been
Legislative Body. registered in regard to cognizable offences
The Conclusions/Directions falling under Chapter IV of the Act. We find
substance in the stand taken by learned Am-
150. Thus, we may cull out our icus Curiae and direct that they should be
conclusions/directions as follows: made over to the Drugs Inspectors, if not
I. In regard to cognizable offences under already made over, and it is for the Drugs
Chapter IV of the Act, in view of Section 32 Inspector to take action on the same in accor-
of the Act and also the scheme of the CrPC, dance with the law. We must record that we are
the Police Officer cannot prosecute offenders resorting to our power under Article 142 of the
in regard to such offences. Only the persons Constitution of India in this regard.
mentioned in Section 32 are entitled to do the VI. Further, we would be inclined to believe
same. that in a number of cases on the understanding
II. There is no bar to the Police Officer, of the law relating to the power of arrest as, in
however, to investigate and prosecute the fact, evidenced by the facts of the present case,
person where he has committed an offence, as police officers would have made arrests in
stated under Section 32(3) of the Act, i.e., if he regard to offences under Chapter IV of the
has committed any cognizable offence under Act. Therefore, in regard to the power of
any other law. arrest, we make it clear that our decision that
III. Having regard to the scheme of the Police Officers do not have power to arrest in
CrPC and also the mandate of Section 32 of respect of cognizable offences under Chapter
the Act and on a conspectus of powers which IV of the Act, will operate with effect from the
are available with the Drugs Inspector under date of this Judgment.
the Act and also his duties, a Police Officer VII. We further direct that the Drugs In-
cannot register a FIR under Section 154 of the spectors, who carry out the arrest, must not
CrPC, in regard to cognizable offences under only report the arrests, as provided in Section
Chapter IV of the Act and he cannot investi- 58 of the CrPC, but also immediately report
gate such offences under the provisions of the the arrests to their superior Officers.
CrPC. 151. In view of our conclusions/directions
IV. Having regard to the provisions of and subject to the same, we would, on the
Section 22(1)(d) of the Act, we hold that an facts, uphold the impugned Judgment and
arrest can be made by the Drugs Inspector in dismiss the Appeal. We record our apprecia-
regard to cognizable offences falling under tion for the enlightening submissions of the
Chapter IV of the Act without any warrant and learned Amicus Curiae Shri S. Nagamuthu.
otherwise treating it as a cognizable offence.
He is, however, bound by the law as laid down Appeal dismissed.

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