Union of India v. Ashok Kumar Sharma and Others
K. M. JOSEPH, J.
1. What is the interplay between the provisions of the Code of
Criminal Procedure (hereinafter referred to as “CrPC” f or short) and
the Drugs and Cosmetics Act, 1940 (hereinafter referred to as “the
Act” for short)? Whether in respect of offences falling under chapter
IV of the Act, a FIR can be registered under Section 154 of the CrPC
and the case investigated or whether Section 32 of the Act supplants the
procedure for investigation of offences under CrPC and the taki ng of
cognizance of an offence under Section 190 of the CrPC? Still further,
can the Inspector under the Act, arrest a person in connection with an
offence under Chapter IV of the Act.
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
2. One Naushad Khan made an online complaint on 22.2.2018.
The Commissioner (Food Protection and Drugs) directed enquiry and
the Drug Inspector, Mau, U.P. along with two others conducte d an
inspection at the Sharda Narayan Clinic and Pharmac y and the
respondent No.1 was directed to show papers in respect of me dicines
stored in the shop. The first respondent according to the appellant stated
that he did not have any license though he was the owner of the medical
store and that he had stored the medicines without pr oper license.
Thereby, he has committed offence under Section 18 and 27 of the Act.
On the basis of recovery made, an FIR came to be lodged on 22.6.2018
purporting to be under Section 18 (a)(i) and Section 27 of the Act. The
complainant it may be noted is none other than the Drugs Inspector. The
respondent filed a writ petition for quashing the FIR and not to ar rest
him. The appellant, viz., the Union of India through the Secretary, Ministry
of Health and Family Welfare was not made a party to the writ petition.
The respondents in the writ petition were the Superintendent of Police,
the Station House Officer and the Drugs Inspector, Mau in his personal
capacity. This is apart from the State of U.P. which was made the first
respondent. It is pointed out by the appellant that the High Court issued
notice seeking presence of the appellant. The High Court by the impugned
order had allowed the writ petition and quashed the FIR. In s hort, the
reasoning of the High Court is that under the Act Section 32 must be
scrupulously observed and it is the mechanism for prosecuting offences
and there is no scope for registration of a FIR under CrPC.
FINDINGS OF THE HIGH COURT
3. The High Court referred to Section 32 of the Act and found
that only an Inspector, a Gazetted Officer conferred with a uthority, a
person aggrieved or recognized consumer organization is eligible to make
a complaint. The court adverted to the other provisions of the Act including
Sections 22, 23, 25 and 27 apart from Section 32 and found that the Act
clearly lays down a complete code for the trial of offences committed in
respect of Drugs and Cosmetics. The Act was a special Act enacted for
the trial of offences committed under the Act. No other provision would
be applicable as the Act had an overriding effect over al l Acts. The
provisions of the CrPC would not be applicable except as prov ided in
the Act itself. Since the lodging of an FIR is under Section 154 of the
CrPC, the said provision would not be invokable. It further held as follows:
955
“21. In this Act, the procedure for launching a prosecution has
been clearly laid down saying that prosecution under this Act can
be initiated only on a complaint made by an authorized Inspector
or other authorized persons defined under Section 32, who is
supposed to follow the entire procedure as narrated above. By no
stretch of imagination could the concerned Inspector have lodged
an F.I.R. in this case and authorize the police to make investigation
in this case.”
4. It was further held that the lodging of the FIR is absolute ly
barred and FIR deserved to be quashed. The court also direct ed the
issue of notice to the Inspector who had gone to lodge the FIR, despite
there being a special provision for launching the pros ecution and
explanation was sought. Still further it was directed as follows:
“23. We, accordingly, allow this petition and quash the F.I.R. and
simultaneously it is further directed that notice shall be issued to
the concerned Inspector by the Competent Authority to show cause
as to why he deliberately lodged an F.I.R. when there is specific
provision for prosecuting the accused by lodging a complaint. The
explanation and action taken against him, shall be forwarde d to
the Court by the Competent Authority within 8 weeks from today
through Registrar General of this Court who shall place the same
before us for perusal in our chambers as soon as the same is
received by Registrar General. We further grant liberty t o the
respondent no. 4 to initiate criminal proceedings in accordance
with the procedure laid down under this Act forthwith against the
petitioner.
24. Registrar General to sent a certified copy of this order to
Principal Secretary, Food Safety and Drug Administr ation,
Government of U.P. for his necessary information and follow up
action. It is further directed that Principal Secretary, Food Safety
and Drug Administration, Government of U.P. shall notify such
direction to all the D.Ms. of the State so that no such error recurs.”
5. We heard Ms. Pinky Anand, learned Additional Solicitor General
appearing on behalf of the appellant. We also heard Shri S. Nagamuthu,
learned Senior Counsel, whom we appointed as Amicus Curiae.
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
SUBMISSIONS OF THE APPELLANT
6. Ms. Pinky Anand, learned Additional Solicitor General would
submit that the High Court was in error in holding that FIR under CrPC
cannot be lodged in respect of the Act. She drew our attention to Section
36 AC of the Act. Thereunder, as we shall see in greater detail, certain
offences under the Act have been declared to be cognizable o ffences.
She would point out that once these offences are declared as cognizable
offences it is inconceivable that a FIR cannot be lodged under the CrPC
in regard to the same. She drew our attention to Section 4 and 5 of the
CrPC. She contended that there is nothing in the Act which detr acted
from a FIR being registered in regard to offences und er the Act.
Regarding the consequences flowing from Section 32 of the Act, it is
her contention that the High Court fell in error in ignoring Section 36AC
of the Act. It is her complaint that the Act contemplated c urbing of
various highly undesirable activities posing a great threat to the health
and the safety of citizens as can be gleaned from the gra ve offences
which have been created under the Act. In fact, it is pointed out t hat
many cases where investigation was carried out on the bas is of FIR
lodged under the Act will witness unmerited burial and offenders would
go scot free if the impugned judgment of the High Court is allow ed to
stand. There is no bar under the Act to the registration of FIR under
CrPC.
7. Shri Nagamuthu, learned senior counsel submitted that having
regard to the scheme of the Act and Section 32, in particular, the judgment
of the High Court is only to be supported. He drew our attention to the
following judgments:
a. Jeewan Kumar Raut and another v. CBI 1;
b. State (NCT of Delhi) v. Sanjay 2.
8. He also referred to the judgment of this Court in Kanwa r Pal
Singh v. State of Uttar Pradesh and another in Criminal Appeal No.1920
of 2019. He would submit that as far as offences falling within the ambit
of Section 36AC are concerned, a FIR under Section 154 of the CrPC is
not contemplated and cannot be registered. The mere fact that S ection
36 AC of the Act declares certain offences under the Act c ognizable
would not mean that the scheme of Section 32 of the Act can be jettisoned.
1 (2009) 7 SCC 526
2 (2014) 9 SCC 772
957
He would point out that prosecution can be launched only in the manner
provided under the Act in regard to offences under the Act covered by
Section 32. The institution of the prosecution can be only at the instance
of the persons named in the said section. He points out that Section 32
came to be amended at the same time as Section 36 AC was inserted.
Nothing prevented the Legislature if it so desired to provide that the
offences falling under Section 32 should be investigated in the manner
provided under the provisions of the CRPC namely by lodging a FIR and
after investigating the offences by filing a report within the meaning of
Section 173 of the CrPC. The fact that such a proce dure was not
contemplated by the Legislature is clear from the fact that under the pre
amended regime, three out of four categories mentioned in the present
amended avtaar were already present and the amendment added only
one more to the categories of persons who alone could institut e the
prosecution. In fact, as regards Section 36 AC declaring certain offences
under the Act to be cognizable, he drew our attention to the second part
of the first schedule of the CrPC. He contended inter alia that even
without the aid of Section 36 AC, the offences under Section 27(1)(a)
and 27(1)(c) were cognizable having regard to the term of imprisonment
provided as punishment for the same. Nothing turned on the offence
being cognizable except apprehension of the offender without the aid of
a warrant. He would submit that in regard to the offences embraced by
Section 32, an F.I.R. within the meaning of the CrPC is not contemplated
but he was at pains to point out that this did not stand in the way of an
F.I.R. being lodged if the offence constituted a distinct offenc e under
any other law. In such a scenario, while the lodging of the F.I.R. in
regard to the offences covered by Section 32 would be imperm issible
the Officer would be within his powers if he were to regi ster an F.I.R.
and proceed to investigate offences other than the offence falling under
Section 32, should they be cognizable. In this case, he would submit that
the offence alleged is under Section 27 (1)(b) of the Act which squarely
fell within the four walls of Section 32. So, also Section 18 prohibiting
certain acts fell in Chapter IV of the Act, thus, attracting Section 32. In
regard to these offences, Section 32 constitutes a bar for the registration
of an F.I.R. under CrPC and the investigation as an ordinary case .
9. In reply to submission of learned Amicus Curiae, Ms. Pi nky
Anand, learned Additional Solicitor General, drew our attention to Section
36AC and reiterated that neither the CrPC nor the Act c onstitute a
stumbling block to the lodging of an FIR. She also drew our attention to
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
Section 13 of the Act. It is pointed out that Section 13 falls under Chapter
III. She contended that the Act contemplated a Special Court t o deal
with the offences under the Act. The procedure leading to the institution
of the prosecution case must be governed by the provisions of the CrPC,
runs her argument.
ANALYSIS
10. The Act purports to achieve the object of regulating the import,
manufacture, distribution and sale of drugs and cosmetics. The word
Drugs has been defined in Section 3(b). Section 3(e) defines Inspector:
“3 Definitions. —In this Act, unless there is anything repugnant in
the subject or context,—
(e) ”Inspector” means—
(i) in relation toAyurvedic, Siddha or Unani drug, an Inspector
appointed by the Central Government or a State Government under
section 33G; and
(ii) in relation to any other drug or cosmetic, an Inspector appointed
by the Central Government or a State Government under section
21;
11. Chapter III contains provisions which provide for dee ming
definitions of misbranded drugs, adulterated drugs, spur ious drugs,
misbranded cosmetics and spurious cosmetics for the purpose of Chapter
III. Section 13 provides for offences arising out of imports. Chapter IV
falls under the chapter heading “Manufacture, Sale and Distribution of
Drugs and Cosmetics”. Interestingly, misbranded drugs, adulterated drugs,
spurious drugs, misbranded cosmetics and spurious cosmetics, adulterated
cosmetics are defined by provisions found in Chapter IV for the purpose
of Chapter IV. Section 18 contemplates that from such date a s may be
fixed by the State Government, manufacture for sale or distribution, or
to sell, or stock or exhibit or offer for sale or distribu tion of drugs
misbranded, adulterated, spurious drugs and cosmetics inter alia are
prohibited. Section 21 reads as follows:
“21. Inspectors.—
(1) The Central Government or a State Government may by
notification in the Official Gazette, appoint such persons as it thinks
fit, having the prescribed qualifications, to be Inspectors for such
959
areas as may be assigned to them by the Central Government or
the State Government, as the case may be.
(2) The powers which may be exercised by an Inspector and the
duties which may be performed by him, the drugs or [classes of
drugs or cosmetics or classes of cosmetics] in relation t o which
and the conditions, limitations or restrictions subject to which, such
powers and duties may be exercised or performed shall be such
as may be prescribed.
(3) No person who has any financial interest in the i mport,
manufacture or sale of drugs or cosmetics shall be appoin ted to
be an Inspector under this section.
(4) Every Inspector shall be deemed to be a public servant within
the meaning of section 21 of the Indian Penal Code (45 of 1860),
and shall be officially subordinate to such authority, havi ng the
prescribed qualifications,] as the Government appointing him may
specify in this behalf.”
(Emphasis supplied)
12. It is necessary to notice the rules relevant in this regard. Rule
(49) deals with qualifications of Inspectors. It reads as follows: -
“49. Qualifications of Inspectors. —A person who is appointed
an Inspector under the Act shall be a person who has a degree in
Pharmacy or Pharmaceutical Sciences or Medicine wit h
specialisation in Clinical Pharmacology or Microbiology from a
University established in India by law: Provided that only those
Inspectors—
(i) who have not less than 18 months’ experience in the
manufacture of at least one of the substances specified in Schedule
C, or
(ii) who have not less than 18 months’ experience in testing of at
least one of the substances in Schedule C in a laboratory approved
for this purpose by the licensing authority, or
(iii) who have gained experience of not less than three year s in
the inspection of firm manufacturing any of the sub stances
specified in Schedule C during the tenure of their services a s
Drugs Inspectors; shall be authorised to inspect the manufacture
of the substances mentioned in Schedule C:
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
Provided further that the requirement as to the aca demic
qualification shall not apply to persons appointed as Inspect ors on or
before the 18th day of October, 1993.”
Rule (51) deals with duties of Inspectors in regard to sale. It reads
as follows:
“51. Duties of Inspectors of premises licensed for sale.—Subject
to the instructions of the controlling authority, it shall be the duty
of an Inspector authorized to inspect premises licensed for t he
sale of drugs—
(1) to inspect not less than once a year all establishments licensed
for the sale of drugs within the area assigned to him;
(2) to satisfy himself that the conditions of the licences are being
observed;
(3) to procure and send for test or analysis, if necessary, imported
packages which he has reason to suspect contain drugs being
sold or stocked or exhibited for sale in contravention o f the
provisions of the Act or rules thereunder;
(4) to investigate any complaint in writing which may be made to
him;
(5) to institute prosecutions in respect of breaches of the Act and
rules thereunder;
(6) to maintain a record of all inspections made and action taken
by him in the performance of his duties, including the taking of
samples and the seizure of stocks, and to submit copies of s uch
record to the controlling authority;
(7) to make such enquiries and inspections as may be necessary
to detect the sale of drugs in contravention of the Act;
(8) when so authorized by the State Government, to detain
imported packages which he has reason to suspect contain drugs,
the import of which is prohibited.”
Rule (52) deals with duties of Inspectors in regard to manufacturer.
It reads as follows:
“52. Duties of inspectors specially authorised to inspect the
manufacture of drugs or cosmetics. —Subject to the instructions
961
of the controlling authority it shall be the duty of an Inspe ctor
authorized to inspect the manufacture of drugs—
(1) to inspect [not less than once a year], all premises licensed for
manufacture of drugs or cosmetics within the area allotted to him
to satisfy himself that the conditions of the licence and provisions
of the Act and Rules thereunder are being observed;
(2) in the case of establishments licensed to manufacture products
specified in Schedules C and C (1) to inspect the plant and the
process of manufacture, the means employed for standardizing
and testing the drug, the methods and place of storage, the technical
qualifications of the staff employed and all details of locati on,
construction and administration of the establishment likely to affect
the potency or purity of the product;
(3) to send forthwith to the controlling authority after each
inspection a detailed report indicating the conditions of the licence
and provisions of the Act and rules thereunder which are bei ng
observed and the conditions and provisions, if any, which are not
being observed;
(4) to take samples of the drugs manufactured on the premises
and send them for test or analysis in accordance with these Rules;
(5) to institute prosecutions in respect of breaches of the Act and
rules thereunder.”
Section 22 deals with the powers of the Inspector. reads as follows:
“22. Powers of Inspectors.—(1) Subject to the provisions of section
23 and of any rules made by the Central Government in this behalf,
an Inspector may, within the local limits of the area for which he
is appointed,—” (a) inspect,—”
(i) any premises wherein any drug or cosmetic is be ing
manufactured and the means employed for standardising an d
testing the drug or cosmetic;
(ii) any premises wherein any drug or cosmetic is being sold, or
stocked or exhibited or offered for sale, or distributed;
(b) take samples of any drug or cosmetic,—
(i) which is being manufactured or being sold or is stocked or
exhibited or offered for sale, or is being distributed;
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
(ii) from any person who is in the course of conveying, delivering
or preparing to deliver such drug or cosmetic to a purchaser or a
consignee;
(c) at all reasonable times, with such assistance, if any, a s he
considers necessary,—
(i) search any person, who, he has reason to believe, has secreted
about his person, any drug or cosmetic in respect of which an
offence under this Chapter has been, or is being, committed; or
(ii) enter and search any place in which he has reason to believe
that an offence under this Chapter has been, or is being, committed;
or
(iii) stop and search any vehicle, vessel or other conveyance which,
he has reason to believe, is being used for carrying any drug or
cosmetic in respect of which an offence under this Chapter h as
been, or is being, committed,
and order in writing the person in possession of the drug or cosmetic
in respect of which the offence has been, or is being, committed,
not to dispose of any stock of such drug or cosmetic for a specified
period not exceeding twenty days, or, unless the alleged offence
is such that the defect may be removed by the possessor of the
drug or cosmetic, seize the stock of such drug or cosmetic and
any substance or article by means of which the offence has been,
or is being, committed or which may be employed for the
commission of such offence;
(cc) examine any record, register, document or any other material
object found with any person, or in any place, vehicle, vessel or
other conveyance referred to in clause (c), and seize the same if
he has reason to believe that it may furnish evidence o f the
commission of an offence punishable under this Act or the Rules
made thereunder;
(cca) require any person to produce any record, register, or other
document relating to the manufacture for sale or for distribution,
stocking, exhibition for sale, offer for sale or distribution of any
drug or cosmetic in respect of which he has reason to believe that
an offence under this Chapter has been, or is being, committed;
963
(d) exercise such other powers as may be necessary for carrying
out the purposes of this Chapter or any rules made thereunder.
22(2)The provisions of the Code of Criminal Procedure, 1973 (2
of 1974)] shall, so far as may be, apply to any search or seizu re
under this Chapter as they apply to any search or seizur e made
under the authority of a warrant issued under section 94 of the
said Code.
(2A) Every record, register or other document seized under clause
(cc) or produced under clause (cca) shall be returned to the person,
from whom they were seized or who produce the same, within a
period of twenty days of the date of such seizure or producti on,
as the case may be, after copies thereof or extracts the refrom
certified by that person, in such manner as may be pres cribed,
have been taken.
(3)If any person wilfully obstructs an Inspector in the exercise of
the powers conferred upon by or under this Chapter or refuses to
produce any record, register or other document when so required
under clause (cca) of sub-section (1), he shall be punishable with
imprisonment which may extend to three years or with fine, or
with both.”
(Emphasis supplied)
13. Section 23 provides for the procedure to be followed by the
Inspector. It includes the tendering of fair price when a sample is taken
of a drug or cosmetic under the Chapter. There are var ious other
provisions regarding the procedure to be followed by the Inspector which
includes seizure of record/ register, documents or other material objects
and the need to notify a judicial Magistrate [See Section 23(6)].
14. Section 27 provides for penalty for manufacture, sale etc. of
drug in contravention of Chapter IV. It reads as follows:
“27. Penalty for manufacture, sale, etc., of drugs in contravention
of this Chapter.- Whoever, himself or by any other person on his
behalf, manufactures for sale or for distribution, or sells, or stocks
or exhibits or offers for sale or distributes,-
(a) any drug deemed to be adulterated under section 17A or
spurious under section 17B and which when used by any
person for or in the diagnosis, treatment, mitigation, or
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
prevention of any disease or disorder is likely to cause his
death or is likely to cause such harm on his body as would
amount to grievous hurt within the meaning of section 320
of the Indian Penal Code (45 of 1860), solely on account of
such drug being adulterated or spurious or not of standard
quality, as the case may be, shall be punishable wi th
imprisonment for a term which shall not be less than ten
years but which may extend to imprisonment for life and
shall also be liable to fine which shall not be less than ten
lakh rupees or three times value of the drugs confiscated,
whichever is more:
Provided that the fine imposed on and released from,
the person convicted under this clause shall be paid, by way
of compensation, to the person who had used the adulterated
or spurious drugs referred to in this clause:
Provided further that where the use of the adulterated
or spurious drugs referred to in this clause has caused the
death of a person who used such drugs, the fine imposed
on and realised from, the person convicted under this clause,
shall be paid to the relative of the person who had died due
to the use of the adulterated or spurious drugs referred to
in this clause.
Explanation.—For the purposes of the second proviso, the
expression “relative” means—
(i) spouse of the deceased person; or
(ii) a minor legitimate son, and unmarried legitimate daughter and
a widowed mother; or
(iii) parent of the minor victim; or
(iv) if wholly dependent on the earnings of the deceased person
at the time of his death, a son or a daughter who has attained the age of
eighteen years; or
(v) any person, if wholly or in part, dependent on the earnings of
the deceased person at the time of his death,—
(a) the parent; or
(b) a minor brother or an unmarried sister; or
965
(c) a widowed daughter-in-law; or
(d) a widowed sister; or
(e) a minor child of a pre-deceased son; or
(f) a minor child of a pre-deceased daughter where no parent of
the child is alive; or
(g) the paternal grandparent if no parent of the member is alive;]
(b) any drug—
(i) deemed to be adulterated under section 17A, but not being
a drug referred to in clause (a), or
(ii) without a valid licence as required under clause (c) of section
18, shall be punishable with imprisonment for a term which
shall not be less than three years but which may extend to five
years and with fine which shall not be less than one lakh rupees
or three times the value of the drugs confiscated, whichever is
more:
Provided that the Court may, for any adequate and special
reasons to be recorded in the judgment, impose a sentence of
imprisonment for a term of less than three years and of fine of
less than one lakh rupees;
(c) any drug deemed to be spurious under section 17B, but not
being a drug referred to in clause (a) shall be punishable
with imprisonment for a term which shall not less than seven
years but which may extend to imprisonment for life and
with fine which shall not be three lakh rupees or three times
the value of the drugs confiscated, whichever is more:
Provided that the Court may, for any adequate and
special reasons, to be recorded in the judgment, impose a
sentence of imprisonment for a term of 8 [less than seven
years but not less than three years and of fine of less than
one lakh rupees];
(d) any drug, other than a drug referred to in clause (a) or
clause (b) or clause (c), in contravention of any other
provision of this Chapter or any rule made thereunder, shall
be punishable with imprisonment for a term which shall not
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
be less than one year but which may extend to two
years and with fine which shall not be less than twenty
thousand rupees:
Provided that the Court may for any adequate and special
reasons to be recorded in the judgment impose a sentence
of imprisonment for a term of less than one year.”
15. Sections 27A, 28, 28A, 28B and 29 provide for other offences.
Section 30 contemplates penalty in the case of subsequent off ences.
Section 31 deals with confiscation. Section 32 which is a t the center
stage of the controversy reads as follows:
“32 Cognizance of offences. — (1) No prosecution under this
Chapter shall be instituted except by—
(a) an Inspector; or
(b) any gazetted officer of the Central Government or a St ate
Government authorised in writing in this behalf by the Centr al
Government or a State Government by a general or special order
made in this behalf by that Government; or
(c) the person aggrieved; or
(d) a recognised consumer association whether such person is a
member of that association or not.
(2) Save as otherwise provided in this Act, no court inferior to
that of a Court of Session shall try an offence punishable under
this Chapter.
(3) Nothing contained in this Chapter shall be deemed to prevent
any person from being prosecuted under any other law for any
act or omission which constitutes an offence against this Chapter.”
Section 32B provides for compounding of certain offences.
16. Chapter IV-A provides for “Provisions relating to Ayurvedic,
Siddha and Unani Drugs”. It also contains provisions for the purpose of
Chapter IV-A dealing with deemed definitions of Misbrande d drugs,
Adulterated drugs, Spurious drugs and are created offences. Section
33G provides for appointment of Inspectors by the Central Government
or the State Government. Section 33H makes the provision of Section
22,23,24 and 25 and the rules, if any, thereunder applicable in respect of
Ayurvedic, Siddha and Unani drugs. Section 33M reads as follows:
967
“33M. Cognizance of offences.—
(1) No prosecution under this Chapter shall be instituted e xcept
by an Inspector [with the previous sanction of the a uthority
specified under sub-section (4) of section 33G.
(2) No Court inferior to that [of a Metropolitan Magistrate or of a
Judicial Magistrate of the first class] shall try an offence punishable
under this Chapter.”
17. The last Chapter of the Act is Chapter V. It bears the Chapter
heading “Miscellaneous”. Section 36 declares that any Metrop olitan
Magistrate or Judicial Magistrate of First Class may pass a sentence in
excess of the powers under the CrPC. Section 36A provides that certain
offences are to be tried summarily.
18. Section 36AB provides for Special Courts. It declares that
the Central Government or the State Government in consultation with
the Chief Justice of the High Court, shall, for certain offences designate
one or more Court of Sessions as a Special Court or Specia l Courts.
Sub-section (2) provides that the Special Court may try an offence other
than the offences covered by sub-section (1) which may be c harged
against the accused at the same trial. Section 36AC around which much
arguments were addressed reads as follows:
“36AC. Offences to be cognizable and non-bailable in certai n
cases. — (1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974),—
(a) every offence, relating to adulterated or spurious drug and
punishable under clauses (a) and (c) of sub-section (1) of section
13, clause (a) of sub-section (2) of section 13, sub-section (3) of
section 22, clauses (a) and (c) of section 27, section 28, section
28A, section 28B and sub-sections (1) and (2) of section 30 and
other offences relating to adulterated drugs or spurious drugs,
shall be cognizable.
(b) no person accused, of an offence punishable under clauses
(a) and (c) of sub-section (1) of section 13, clause (a) o f sub-
section (2) of section 13, sub-section (3) of section 22, clauses (a)
and (c) of section 27, section 28, section 28A, section 28B and
sub-sections (1) and (2) of section 30 and other offences relating
to adulterated drugs or spurious drugs, shall be released on bail or
on his own bond unless—
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
(i) the Public Prosecutor has been given an opportunity to oppose
the application for such release; and
(ii) where the Public Prosecutor opposes the application, the Court
is satisfied that there are reasonable grounds for believing that he
is not guilty of such offence and that he is not likely to commit any
offence while on bail:
Provided that a person, who, is under the age of sixteen years, or
is a woman or is sick or infirm, may be released on bail, if the
Special Court so directs.
(2) The limitation on granting of bail specified in clause (b) of
sub-section (1) is in addition to the limitations under the Code of
Criminal Procedure, 1973 (2 of 1974) or any other law for the
time being in force on granting of bail.
(3) Nothing contained in this section shall be deemed to affect the
special powers of the High Court regarding bail under section 439
of the Code of Criminal Procedure, 1973 (2 of 1974) and the High
Court may exercise such powers including the power under clause
(b) of sub-section (1) of that section as if the re ference to
“Magistrate” in that section includes also a reference to a “Special
Court” designated under section 36AB.”
Section 36AD also being relevant is referred to:
“36AD Application of Code of Criminal Procedure, 1973 to
proceedings before Special Court. —
(1) Save as otherwise provided in this Act, the provisions of the
Code of Criminal Procedure, 1973 (2 of 1974) (including the
provisions as to bails or bonds), shall apply to the proceeding s
before a Special Court and for the purposes of the said provisions,
the Special Court shall be deemed to be a Court of Session and
the person conducting the prosecution before the Special Court,
shall be deemed to be a Public Prosecutor:
Provided that the Central Government or the State
Government may also appoint, for any case or class or group of
cases, a Special Public Prosecutor.
(2) A person shall not be qualified to be appointed as a Publi c
Prosecutor or a Special Public Prosecutor under this section unless
969
he has been in practice as an advocate for not less than seve n
years, under the Union or a State, requiring special knowledge of
law.
(3) Every person appointed as a Public Prosecutor or a Special
Public Prosecutor under this section shall be deemed to be a Public
Prosecutor within the meaning of clause (u) of section 2 of the
Code of Criminal Procedure, 1973 (2 of 1974) and the provisions
of that Code shall have effect accordingly.”
RELEVANT PROVISIONS OF THE CRPC
19. Section 2(a) defines “bailable offence” as offence show n as
such in the First Schedule, or which is made bailable under any other
law for the time being in force. “Non-bailable offence” means any
other offence. ‘Cognizable offence’ is defined in Section 2(c). It reads
as follows:
“2(c) “ cognizable offence” means an offence for which, and”
cognizable case” means a case in which, a police officer may, in
accordance with the First Schedule or under any other law for
the time being in force, arrest without warrant;”
(Emphasis supplied)
20. Section 2(d) defines ‘complaint’. It reads as follows:-
“2(d) “ complaint” means any allegation made orally or in writing
to a Magistrate, with a view to his taking action under this Code,
that some person, whether known or unknown, has committed an
offence, but does not include a police report.
Explanation.- A report made by a police officer in a cas e which
discloses, after investigation, the commission of a non- cognizable
offence shall be deemed to be a complaint; and the police officer
by whom such report is made shall be deemed to be t he
complainant;”
21. Section 2(h) defines investigation as follows:
“2(h)”investigation” includes all the proceedings under this Code
for the collection of evidence conducted by a police officer or by
any person (other than a Magistrate) who is authorised b y a
Magistrate in this behalf.”
(Emphasis supplied)
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
22. ‘Police report’ is defined in Section 2 (r) as meaning a report
forwarded by a police officer to a Magistrate under sub- section (2) of
Section 173. Sections 4 and 5 being relevant, we advert to the same.
“4. Trial of offences under the Indian Penal Code and other laws.-
(1) All offences under the Indian Penal Code (45 of 1860 )
shall be investigated, inquired into, tried, and otherwise dealt
with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated,
inquired into, tried, and otherwise dealt with according to the
same provisions, but subject to any enactment for the time
being in force regulating the manner or place of investigating,
inquiring into, trying or otherwise dealing with such offences.
5. Saving.- Nothing contained in this Code shall, in the absence of
a specific provision to the contrary, affect any special or local law
for the time being in force, or any special jurisdiction or power
conferred, or any special form of procedure prescribed, by any
other law for the time being in force.”
23. Chapter XII comes under the heading ‘Information to the
Police and their Powers to Investigate’. Section 154 inter alia provides
that every information relevant to the commission of a cognizable offence
given orally to an officer in charge of a Police Station shall be reduced to
writing by him or under his direction, and be read over to i nformant.
Every such information whether given in writing or reduced to writing
as aforesaid shall be signed by the person giving it. The substance of the
same is to be entered in a book to be kept by such officer in such form
as may be prescribed. Section 155 deals with information a s to non-
cognizable cases and the manner of investigation of such cases . No
police officer can investigate a non-cognizable offence without the order
of the Magistrate having power to try such case or commit such case
for trial. Section 156 reads as under:
“156. Police officer’s power to investigate cognizable case. –
(1) Any officer in charge of a police station may, without the order
of a Magistrate, investigate any cognizable case which a Court
having jurisdiction over the local area within the limits of such
station would have power to inquire into or try under the provisions
of Chapter XIII.
971
(2) No proceeding of a police officer in any such case shall at any
stage be called in question on the ground that the case was one
which such officer was not empowered under this sectio n to
investigate.
(3) Any Magistrate empowered under section 190 may order such
an investigation as above-mentioned”.
(Emphasis supplied)
24. Section 157 provides for Procedure for Investigation. The
limitations for the use of the statement given under Section 161 are spelt
out in Section 162. Section 173 provides for the report to be given on
completion of investigation.
25. Chapter XIV deals with the “Conditions requisite for Initiation
of Proceedings”. Section 190 reads as follows:
“190. Cognizance of offences by Magistrates.-
(1) Subject to the provisions of this Chapter, any Magistrat e of
the first class, and any Magistrate of the second class s pecially
empowered in this behalf under sub- section (2), ma y take
cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such
offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police
officer, or upon his own knowledge, that such offence has been
committed.
(2) The Chief Judicial Magistrate may empower any Magistrate
of the second class to take cognizance under sub- section (1) of
such offences as are within his competence to inquire into or try.”
26. Chapter XV deals with Complaints to Magistrates. S ection
202 having been referred by the learned Amicus Curiae is extracted:
“202. Postponement of issue of process.-(1) Any Magistrate, on
receipt of a complaint of an offence of which he is authorised to
take cognizance or which has been made over to him under section
192, may, if he thinks fit, postpone the issue of process against the
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
accused, and either inquire into the case himself or direct a n
investigation to be made by a police officer or by such other person
as he thinks fit, for the purpose of deciding whether or not there is
sufficient ground for proceeding: Provided that no such direction
for investigation shall be made,-
(a) where it appears to the Magistrate that the offence complained
of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the
complainant and the witnesses present (if any) have been
examined on oath under section 200.
(2) In an inquiry under sub- section (1), the Magistrate may, if he
thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session, he
shall call upon the complainant to produce all his witnesses and
examine them on oath.
(3) If an investigation under sub- section (1) is made by a person
not being a police officer, he shall have for that investigation all
the powers conferred by this Code on an officer- in- charge of a
police station except the power to arrest without warrant.”
(Emphasis supplied)
27. Chapter XVI comes under the chapter heading
“Commencement of Proceedings before Magistrates”. Section 204 deals
with “Issue of Process” in a case where the Magistrate taking cognizance
is of the view that there is sufficient ground for proceeding in the matter.
It may also be relevant to notice part II of the First Sche dule to the
CrPC. It must be remembered that cognizable offence has been defined
in terms of the classification of the offences under the Firs t Schedule.
The first part of the First Schedule deals with offences under the Indian
Penal Code. The second part, as it were, deals with classifi cation of
offences against other laws. It reads as follows:
“Classification of Offences against other laws
973
Offence Cognizable or
non-cognizable
Bailable or
non-bailable
By what Court
triable
1 2 3 4
If punishable with
death, imprisonment
for life, or
imprisonment for
more than 7 years;
Cognizable Non -bailable Court of
Session.
If punishable with
imprisonment for 3
years, and upwards
but not more than 7
years.
Cognizable Non-bailable Magistrate of
the first class.
If punishable with
imprisonment for less
than 3 years or with
fine only.
Non-cognizable Bailable Any Magistrate.
28. Section 4(2) of the CrPC declares that all offences under any
law other than the IPC shall be investigated, inquired into and tried and
otherwise dealt with according to the CrPC. This is however, subject to
any enactment for the time being in force which provides otherwise in
the matter of, the manner or place of investigation inter alia in regard to
offences under any law other than the IPC. The purport of Section 5 is
this:
If any special law or local law for the time being in for ce
contemplates any special jurisdiction or power or any special form
of procedure prescribed, unless there is something to the contrary,
to be found, it is the provisions of the special law or the local law
which would prevail.
IMPACT OF SECTION 2 OF THE ACT
29. We have noticed that Section 2 of the Act declares that the
provisions of the Act shall be in addition to and not in derogation of the
Dangerous Drugs Act 1930 and any other law for the time bei ng in
force. As far as Section (2) of the Act is concerned if the attempt of the
appellant is to contend that it imports the provisions in CrPC which tends
to overwhelm, in particular, any special procedure provided un der the
Act, we have no hesitation in repelling the same. The purport of Section
2 appears to be that Legislature intended to keep alive the provisions of
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
the Dangerous Drugs Act, 1930. It would continue to hold sway despite
the enactment of the Act. If there are any other provisions of cognate
laws dealing with the subjects dealt with by the Act, th e operation of
those Acts was to be preserved. The Act does not provide for any express
repeal of any enactment. Nothing further needs to be stated about Section
2 and we are of the view that it does not have any further repercussion
on the issue at hand.
SECTION 32 OF THE ACT
30. Coming to Section 32 of the Act, as already noted by us it falls
in chapter IV. Inspectors are appointed by the Central Go vernment or
the State Government from persons possessing prescribed qualifications
under a notification. Section 21 contemplates prescribing under rules the
powers which may be exercised by the Inspectors apart from the duties
which may be performed by him inter alia . Section 22 of the Act provides
for power of search by the Inspectors. They have power to inspect any
premise, take samples, powers of search, examine any record, register,
material object and seize them. The Legislature has undoubtedly applied
the provisions of the CrPC in regard to searches under the Act. Section
23 elaborately provides for procedure to be adopted by Inspectors.
31. Section 32 falling under section heading ‘Cognizance of
offences’ declares, in unambiguous words, that prosecut ion, under
Chapter IV, can be instituted only by (1) an Inspector (2) any gazetted
officer of the Central Government or State Government authoris ed in
writing by the respective Government by a general or special order made
in this behalf by that Government (3) the person aggr ieved (4) a
recognised consumer association whether such person is a me mber of
that association or not. Section 32 further proclaims that unl ess it is
otherwise provided, no court inferior to a court of session sha ll try an
offence punishable under Chapter IV. Section 32(3) makes it clear that
nothing in chapter IV would stand in the way of the pe rson being
prosecuted against under any other law for any act or omissio n which
constitutes an offence against this Chapter. Section 32 was substituted
by Act 22 of 2008. Prior to the substitution it read as follows:
“32 Cognizance of offences. — (1) No prosecution under
this Chapter shall be instituted except by an Inspector or by the
person aggrieved or by a recognised consumer association whether
such person is a member of that association or not.
975
(2) No court inferior to that of a Metropolitan Magistrate or of a
Judicial Magistrate of the first class shall try an offence punishable
under this Chapter.
(3) Nothing contained in this Chapter shall be deemed to prevent
any person from being prosecuted under any other law for any
act or omission which constitutes an offence against this Chapter.”
32. It will be noticed at once that Section 190 of the CrPC also
has a title ‘Cognizance of Offence by Magistrate’. Cogniza nce under
Section 190 is contemplated in three different modes. They are - (1)
complaints of facts constituting such offences, (2) police report of such
facts, (3) upon any information received from a person other tha n a
Police Officer or upon a court being possessed of knowledge about the
commission of the offence. In other words, where the c ourt takes
cognizance suo motu. A comparison between Section 32 of the Act and
190 of the CrPC dealing with cognizance of offences, makes it abundantly
clear that the Law Giver has provided for distinct modes in regard to
prosecuting of the offences under the general law, viz., the CrPC and
the special provision, as contained in Section 32 of the Act.
33. Section 193 of the CrPC reads as follows:
“193. Cognizance of offences by Courts of Session. Except as
otherwise expressly provided by this Code or by any other law
for the time being in force, no Court of Session sh all take
cognizance of any offence as a Court of original jurisdiction unless
the case has been committed to it by a Magistrate under this
Code.”
34. Section 195 prohibits the Court from taking any cognizance of
the offences mentioned therein except on the complaint in writing by the
persons named therein.
35. Section 198A and Section 199 likewise permit the courts to
take cognizance only upon the complaint made by the persons mentioned
therein. Similarly, Section 199 taboos cognizance of offence of defamation
except on the complaint made by some aggrieved person.
36. Section 36AD of the Act applies the provisions of the CrPC
except where it is otherwise provided in the Act in r egard to the
proceedings before the Special Court and the Special Court is deem ed
to be the Court of Sessions and the person conducting the prosecution is
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
deemed to be the Public Prosecutor. No doubt, the proviso empow ers
the Central Government or the State Government to appoint for any
case or class or group of cases, a Special Public Prosecut or.
37. The Scheme of the Act must be borne in mind when Section
32, which provides, inter alia, that an Inspector can set the ball rolling, is
considered. The Inspectors, under the Act, are to possess the prescribed
qualifications. The qualifications bear a nexus with the performance of
the specialised duties which are to be performed under the Act. Apparently,
knowledge about the drugs and cosmetics goes a long way in equipping
them to perform their multifarious functions. Section 22 cl othing the
Inspector with powers must also be viewed thus in the contex t of the
legislative value judgment that a complaint is to be moved by the Inspector
under the Act and not by a Police Officer under the CrPC. The Inspector
is expected to inspect premises where drugs and cosmeti cs are being
manufactured, sold, stocked, exhibited, offered for sale or distri buted.
Samples are to be taken at the points of manufacturing, selling, stocking
and the points of delivery. He is expected also, where he has reason to
believe that an offence under the Act has been committed, to search
any person, enter any place, stop and search any vehicle, examine records,
and documents and seize the same. Last but not the least, Section 22(1)(d)
declares that he may exercise other powers as may be nece ssary for
carrying the purposes of Chapter IV or any Rules made th ereunder.
The elaborate procedure to be followed by the Inspectors is also provided
by the law.
38. Section 26 of the Drugs and Cosmetics Act, 1940, reads as
follows:
“26. Purchaser of drug or cosmetic enabled to obtain test
or analysis.—Any person or any recognised consumer association,
whether such person is a member of that association or not shall,
on application in the prescribed manner and on payment of t he
prescribed fee, be entitled to submit for test or an alysis to a
Government Analyst any drug or cosmetic purchased by him or it
and to receive a report of such test or analysis signed by the
Government Analyst.
Explanation.—For the purposes of this section and section
32, “recognised consumer association” means a volun tary
consumer association registered under the Companies Act, 1956
or any other law for the time being in force.”
977
39. A perusal of the same would indicate the role which is assigned
to any person and recognized consumer association within the meaning
of Section 32. Section 26 of the Drugs and Cosmetics Act, 1940 declares
that on the application, any person or any recogniz ed consumer
association, in the prescribed manner and on payment of prescribed fee,
is entitled to submit for test or analysis, to a Govern ment Analyst any
drug or cosmetic purchased by the person or the associati on and to
receive a report of such test or analysis signed by the Gover nment
Analyst. There can be no gainsaying that armed with a repor t which
reveals the commission of an offence under Chapter IV of the Act, they
can invoke Section 32 and prosecute the offender.
40. Section 32 of the Act undoubtedly provides for taking
cognizance of the offence by the court only at the instance of the four
categories mentioned therein. They are: (a) Inspector under the Act; (b)
Any Gazetted Officer empowered by the Central or th e State
Government; (c) Aggrieved person; and (d) Voluntary Association. It is
clear that the Legislature has not included the Police Officer as a person
who can move the court. Before the matter reaches the court, under
Section 190 of the CrPC, ordinarily starting with the lodging of the first
information report leading to the registration of the first information report,
investigation is carried out culminating in a report unde r Section 173.
The Police Report, in fact, is the Report submitted under Section 173 of
the CrPC to the court. Under Section 190 of the CrPC, the cour t may
take cognizance on the basis of the police report. Such a procedure is
alien to Section 32 of the Act. In other words, it is not open to the Police
Officer to submit a report under Section 173 of the CrPC in regard to an
offence under Chapter IV of the Act under Section 32. In regard to
offences contemplated under Section 32(3), the Police Officer may have
power as per the concerned provisions. Being a special enactment, the
manner of dealing with the offences under the Act, would be governed
by the provisions of the Act. It is to be noted that Section 32 declares
that no court inferior to the Court of Sessions shall try offence punishable
under Chapter IV. We have noticed that under Section 193 of the CrPC,
no Court of Sessions can take cognizance of any offence as a Court of
Original Jurisdiction unless the case has been committed t o it by a
Magistrate under the CrPC. This is, undoubtedly, subject to the law
providing expressly that that Court of Sessions may take cognizance of
any offence as the Court of Original Jurisdiction. There is no provision
in the Act which expressly authorises the special court w hich is the
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
Court of Sessions to take cognizance of the offence under Chap ter IV.
This means that the provisions of Chapters XV and XVI of the CrPC
must be followed in regard to even offences falling under Chapter IV of
the Act. Starting with Section 200 of the Act dealing with t aking of
cognizance by a Magistrate on a complaint, including examination of the
witnesses produced by the complainant, the dismissal of an unw orthy
complaint under Section 203 and following the procedure under Section
202 in the case of postponement of issue of process are al l steps to be
followed. It is true that when the complaint under Section 32 is filed
either by the Inspector or by the Authorised Gazetted Offic er being
public servants under Section 200, the Magistrate is exempted from
examining the complainant and witnesses.
41. The learned Amicus Curiae, when queried about the procedure
to be adopted when a complaint is lodged by persons falling in Section
32(C) and (d), viz., the aggrieved person or a voluntary associat ion, it
was submitted that the Magistrate can, under Section 202 of the CrPC,
order an investigation by the Police Officer or any other person. A perusal
of Section 202 would show that in regard to an offence falling under
Chapter IV of the Act, being exclusively triable, by a Court of Sessions,
the proviso to sub-Section (1) to Section 202 prohibits the direction for
investigation under Section 202. The proviso to sub-Section (2) of Section
202 contemplates that when an offence is exclusively triable by the Court
of Sessions, and the Magistrate proceeds under Section 202 of the CrPC,
he is duty bound to call upon the complainant to produce all its witnesses
and examine them on oath. Thus, the effect of the two provisions in sub-
Sections (1) and (2), respectively, is as follows:
A Magistrate proceeding under Section 202 of the CrP C, is
subjected to two conditions:
a. Unlike in an ordinary case, meaning thereby, an offence which
is not exclusively triable by a Court of Sessions, in a case where
it is an offence exclusively triable by a Court of Sessions, the
inquiry can be conducted only by a Magistrate himself. It is
not open to him to cause an investigation be it by a Police
Officer or any other person.
b. In regard to the inquiry so conducted by him, he must call upon
the complainant to produce all his witnesses and they must be
examined not on the basis of any affidavit, and not without the
979
support of an oath but the examination must be under an oath.
It is to be remembered that under the provisions existing under
the previous Code, an elaborate preliminary inquiry where even
an accused had right of cross-examination of witnesses, was
contemplated at the hands of the Magistrate before the
committal order was passed. This no longer survives after the
amendment.
42. Offences exclusively triable by a Court of Sessi ons are
ordinarily pursued on the strength of a Police Report. The Police Officer
examines witnesses under Section 161 of the CrPC, coll ects other
evidence, arrives at a satisfaction that indeed a case is made out to
arraign a person or persons and, accordingly, the charge-sheet i s filed
under Section 173. Section 207 of the Code contemplates making available
statements of all the witnesses examined among other documents to be
made available to the accused as provided therein. This prepares the
accused for the case he is likely to be called upon to meet in the Court of
Sessions.
43. As far as a complainant setting the criminal law in motion is
concerned, what is contemplated is that by the mechanism of cognizance
under Section 200 read with Section 202, culminating in the issuance of
summons or warrant under Section 204, there is material be fore the
Magistrate and the court is assured that the case is not fr ivolous and
wholly meritless going by a prima facie view undoubtedly as contemplated
in law at that stage regarding the commission of a cognizance offence.
Apart from this, reassuring aspect, as in a prosecution launched under
Police Report, the accused in a trial by a Court of Sessions to which
Court a case would stand committed under Section 209, would also know
beforehand the case he would have to meet having regard to the materials
which weighed with the Magistrate and which is also made available to
him under Section 208 of the Act. In such circumstances, we need not
consider further the argument of the learned Amicus Curi ae that a
direction for investigation by the Magistrate under Section 202 w ould
not be tabooed as the result of the investigation by the Polic e Officer
pursuant to a direction would not amount to a report under Section 173.
This is for the reason that being offences exclusively triable by the Court
of Sessions, as noticed earlier, there is a bar against t he Magistrate
directing investigation under Section 202 by the Police Offi cer or
otherwise.
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
44. The learned Amicus Curiae submitted that the registering of
an FIR under Section 154 of the CrPC in regard to reference und er
Chapter IV of the Act is a futile exercise. It is his su bmission that the
filing of the First Information Statement (FIS) (We notice his complaint
that even courts refer to the FIS as the complaint whereas a complaint
is what is contemplated under Section 190 of the CrPC which is filed
before a court) constitutes information provided under Section 154 before
a Station House Officer In-Charge of Police Station which activises the
Officer and he investigates the matter with the object of filing a report
under Section 173 which is also described as charge-sheet in a case
where the Officer finds that an offence has been committed. It is named
a final report where no basis is found for prosecution. On the strength of
the same, he invites the court concerned to take cognizance. I f under
Section 32 of the Act, the Police Officer has no authority to file a report,
he questions the actions of the Police Officer as one which is bound to
die a natural death. He would submit that declaring certain off ences
under Section 36AC cognisable, is only to empower the arre st of the
accused.
45. It may be noticed at this juncture, that the Act does contemplate
arrest. Section 36AC clearly declares that certain offe nces are non-
bailable. Section 36AC(b) proclaims that no person accuse d of the
offences mentioned therein shall be released on bail or on his own bond
unless the Public Prosecutor has been given an opportu nity to oppose
the application of such release and where the Public Prosecutor opposes,
the court is satisfied that there are reasonable ground for believing that
he is not guilty of such offence and that he is not likely to commit any
offence while on bail. This limitation on the grant of bail is in addition to
the limitations under the CrPC or and under any other law for the time
being in force on grant of bail. The special powers, however, of the High
Court regarding the grant of bail under Section 439 of the CrPC , is
preserved as found therein.
46. The argument of Ms. Pinky Anand, learned Additional Solicitor
General is that having regard to the fact that certain of fences under
Section 36AC have been declared cognizable, the powers of the police
under the CrPC including the duty to register a FIR under Section 154
cannot be obviated. The only prohibition is against the Police Of ficer
lodging the charge sheet. There can be no taboo on the Police Officer
registering the FIR and even conducting the investigation. This brings up
981
another issue, who is the person who can arrest a person accused of an
offence in Chapter IV of the Act? Is it open to a Police O fficer acting
under the CrPC to arrest such person? Is the Inspector unde r the Act
empowered to arrest a person accused of an offence under Chapter IV
of the Act? Before we deal with this aspect, we may look at how this
Court spoke in the past in the matter of taking cognizance among other
aspects.
A LOOK AT HOW THIS COURT SPOKE IN THE PAST
47. In Jeewan Kumar Raut and another v. Central Bureau of
Investigation 3, the case arose under the Transplantation of Human Organs
Act, 1994 (TOHO Act). Section 22 of this Act reads as follows:
“22. Cognizance of offence.—
(1) No court shall take cognizance of an offence under this Ac t
except on a complaint made by—
(a) the Appropriate Authority concerned, or any officer authorised
in this behalf by the Central Government or the State Government
or, as the case may be, the Appropriate Authority; or
(b) a person who has given notice of not less than sixty days, in
such manner as may be prescribed, to the Appropriate Authority
concerned, of the alleged offence and of his intention to make a
complaint to the court.
(2) No court other than that of a Metropolitan Magistrate or a
Judicial Magistrate of the first class shall try any offence punishable
under this Act.
(3) Where a complaint has been made under clause (b) of sub -
section (1), the court may, on demand by such person, direct the
Appropriate Authority to make available copies of the rel evant
records in its possession to such person.”
48. The appellants were Medical Practitioners. An F IR was
registered against them under Section 420 of the IPC and Sect ions 18
and 19 of the TOHO Act at the Police Station. The investiga tion was
transferred to the CBI, respondent in the case. The CB I registered
another FIR which included Sections 18 and 19 of the TOHO A ct.
Appellant no.2 was arrested and produced before the Magistrate.
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
3 (2009) 7 SCC 526
Appellant no.1 surrendered. The respondent filed a complaint under
Section 22 of TOHO Act pointing out that the period of 90 days from the
detention expired on 07.05.2008, Appellant no.2 filed an application for
grant of bail within the meaning of Section 167(2) of the CrPC. It was,
while considering the same, this Court held, inter alia, as follows:
“19. TOHO is a special Act. It deals with the subject s
mentioned therein, viz. offences relating to removal of human
organs, etc. Having regard to the importance of the subject only,
enactment of the said regulatory statute was imperative.
20. TOHO provides for appointment of an appropriate
authority to deal with the matters specified in sub-section (3) of
Section 13 thereof. By reason of the aforementioned provision,
an appropriate authority has specifically been authorised inter alia
to investigate any complaint of the breach of any of the provisions
of TOHO or any of the rules made thereunder and tak e
appropriate action. The appropriate authority, subject to exceptions
provided for in TOHO, thus, is only authorised to investigate cases
of breach of any of the provisions thereof, whether penal or
otherwise.
21. Ordinarily, any person can set the criminal law in motion.
Parliament and the State Legislatures, however, keeping in view
the sensitivity and/or importance of the subject, have carved out
specific areas where violations of any of the provisions of a special
statute like TOHO can be dealt with only by the author ities
specified therein. The FIR lodged before the officer in charge of
Gurgaon Police Station was by way of information. It disclosed
not only commission of an offence under TOHO but also under
various provisions of the Penal Code. The officer in charge of the
police station, however, was not authorised by the appropri ate
Government to deal with the matter in relation to TOHO; but, the
respondent was. In that view of the matter, the investigation of
the said complaint was handed over to it.
xxx xxx xxx xxx
23. TOHO being a special Act and the matter relating to
dealing with offences thereunder having been regulated by reason
of the provisions thereof, there cannot be any manner of doubt
whatsoever that the same shall prevail over the provisions of the
983
Code. The investigation in terms of Section 13(3)(iv) of TOHO,
thus, must be conducted by an authorised officer. Nobody else
could do it. For the aforementioned reasons, the officer in charge
of Gurgaon Police Station had no other option but to hand over
the investigation to the appropriate authority.
xxx xxx xxx xxx
25. Section 22 of TOHO prohibits taking of cognizance
except on a complaint made by an appropriate authority or the
person who had made a complaint earlier to it as laid down therein.
The respondent, although, has all the powers of an investigating
agency, it expressly has been statutorily prohibited from filing a
police report. It could file a complaint petition only as an appropriate
authority so as to comply with the requirements containe d in
Section 22 of TOHO. If by reason of the provisions of TOHO ,
filing of a police report by necessary implication is necess arily
forbidden, the question of its submitting a report in terms of sub-
section (2) of Section 173 of the Code did not and could not arise.
In other words, if no police report could be filed, sub-section (2)
of Section 167 of the Code was not attracted.
xxx xxx xxx xxx
28. To put it differently, upon completion of the investigation,
an authorised officer could only file a complaint and not a police
report, as a specific bar has been created by Parliamen t. In that
view of the matter, the police report being not a complai nt and
vice versa, it was obligatory on the part of the respondent to choose
the said method invoking the jurisdiction of the Ma gistrate
concerned for taking cognizance of the offence only in the manner
laid down therein and not by any other mode. The procedure laid
down in TOHO, thus, would permit the respondent to fil e a
complaint and not a report which course of action could have
been taken recourse to but for the special provisions contained in
Section 22 of TOHO.”
(Emphasis supplied)
49. We may also notice the hope expressed by the Court for
Parliamentary intervention expressing doubt about the absence of power
to arrest with the Officer who is authorised to carry out the investigation:
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
“37. In the present case, however, the respondent having
specially been empowered both under the 1946 Act as also under
the Code to carry out investigation and file a charge-sheet i s
precluded from doing so only by reason of Section 22 of TOHO.
It is doubtful as to whether in the event of authorisation of an
officer of the Department to carry out investigation on a complaint
made by a third party, he would be entitled to arrest the accused
and carry on investigation as if he is a police officer. We hope that
Parliament would take appropriate measures to suitably a mend
the law in the near future.”
50. In Jamiruddin Ansari v. Central Bureau of Investigation and
another 4, the case arose under the Maharashtra Control of Organized
Crime Act, 1999 (MCOCA). A private complaint was filed against certain
accused persons by a person. The Special Judge orde red the
Commissioner of Police to investigate into the complaint under Section
156(3) of the CrPC. The State took the stand in a Writ Petition challenging
the said order that in view of Sections 23(2) of the MCOCA sans previous
sanction as contemplated therein, the Court could not take cognizance.
It is necessary to advert to Sections 9 and 23 of the said Act . Sections
(9) inter alia and 23 of MCOCA reads as follows:
“9. Procedure and powers of Special Court.—(1) A Special
Court may take cognizance of any offence without the accused
being committed to it for trial, upon receiving a complaint of facts
which constitute such offence or upon a police report of such
facts.
(2)-(3)***
xxx xxx xxx xxx
“23. Cognizance of, and investigation into, an offence.—
(1) Notwithstanding anything contained in the Code,—
(a) no information about the commission of an offence of
organised crime under this Act, shall be recorded by a police officer
without the prior approval of the police officer not below the rank
of the Deputy Inspector General of Police;
(b) no investigation of an offence under the provisions of
this Act shall be carried out by a police officer below the rank of
the Deputy Superintendent of Police.
4 (2009) 6 SCC 316
985
(2) No Special Court shall take cognizance of any offence under
this Act without the previous sanction of the police office r not
below the rank of Additional Director General of Police.”
51. The Full Bench which was constituted to hear the matter, by
a majority, took the view that a private complaint under Section 9, was
not trammelled by the requirement under Section 23. This Court held,
inter alia , as follows:
“67. We are also inclined to hold that in view of the provisions of
Section 25 of M COCA , the provisions of the said Act would have
an overriding effect over the provisions of the Criminal Procedure
Code and the learned Special Judge would not, therefore, be entitled
to invoke the provisions of Section 156(3) CrPC for ordering a
special inquiry on a private complaint and taking cognizance
thereupon, without traversing the route indicated in Section 23
of M COCA . In other words, even on a private complaint about the
commission of an offence of organised crime
under M COCA cognizance cannot be taken by the Special Judge
without due compliance with sub-section (1) of Section 23, which
starts with a non obstante clause.
68. As indicated hereinabove, the provisions of Section 23 are the
safeguards provided against the invocation of the provisions of
the Act which are extremely stringent and far removed from the
provisions of the general criminal law. If, as submitted on behalf
of some of the respondents, it is accepted that a private complaint
under Section 9(1) is not subject to the rigours of Section 23, then
the very purpose of introducing such safeguards lose their very
raison d’être. At the same time, since the filing of a private
complaint is also contemplated under Section 9(1) of M COCA , for
it to be entertained it has also to be subject to the rigours of Section
23. Accordingly, in view of the bar imposed under sub-section (2)
of Section 23 of the Act, the learned Special Judge is preclud ed
from taking cognizance on a private complaint upon a separ ate
inquiry under Section 156(3) CrPC. The bar of Section 23(2)
continues to remain in respect of complaints, either of a p rivate
nature or on a police report.”
52. Thereafter, the Court proceeded to harmonise the provisions
by holding as follows:
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
“69. In order to give a harmonious construction to the
provisions of Section 9(1) and Section 23 of MCOCA, upon receipt
of such private complaint the learned Special Judge has to forward
the same to the officer indicated in clause (a) of sub-secti on (1)
of Section 23 to have an inquiry conducted into the complaint by a
police officer indicated in clause (b) of sub-section (1) and only
thereafter take cognizance of the offence complained of, if sanction
is accorded to the Special Court to take cognizance of such offence
under sub-section (2) of Section 23.”
53. It is pertinent to notice that in the said enactment, under Section
23, there was a taboo against recording of any information unde r the
Act without the prior approval of the Police Officer not below the rank
of the Deputy Inspector General of Police. This must be understood as
supplanting the provisions of Section 154 of the CrPC to the extent that
the modification was spelt out. Not only could the information not be so
recorded without the prior approval, investigation also cannot be carried
out except by a Police Officer of the rank of Deputy Superintendent of
Police and above. This is apart from the prohibition agains t taking
cognizance of an offence under the said Act without the previous sanction
of the Police Officer not below the rank of Additional Director General
of Police.
54. The decision of this Court in H.N. Rishbud and Inder Singh v.
State of Delhi, ETC. 5 dealt with a case under the Prevention of Corruption
Act, 1947. Investigation in the said case was undertaken by an Officer
without authorisation by the Magistrate under Section 5(4) of the
Prevention of Corruption Act, 1947. Cognizance was taken and the trial
went on. The accused thereupon pointed out the flaw in the investigation.
It is in the said circumstances, this Court proceeded to deal with what is
investigation, inter alia:
“8. … Thus, under the Code investigation consists generally
of the following steps: (1) Proceeding to the spot, (2) Ascertainment
of the facts and circumstances of the case, (3) Discovery and
arrest of the suspected offender, (4) Collection of evidence relating
to the commission of the offence which may consist of (a) the
examination of various persons (including the accused) and the
reduction of their statements into writing, if the officer thinks fit,
5 AIR 1955 SC 196
987
(b) the search of places or seizure of things considered necessary
for the investigation and to be produced at the trial, and (5)
Formation of the opinion as to whether on the material collected
there is a case to place the accused before a Magistrate for trial
and if so taking the necessary steps for the same by the filing of a
charge-sheet under Section 173. …”
55. No doubt, the Court went on to take the view that the invalidity
of the investigation, if brought to the knowledge of the Co urt at a
sufficiently early stage, remedial steps may be taken to get the illegality
cured. However, it was found that if cognizance is taken on a Po lice
Report vitiated by the breach of a mandatory provision relating to
investigation, the result of the trial cannot be affected unless it has resulted
in a miscarriage of justice. It is pertinent to note that the Court made the
following observations as well:
“9. … Here we are not concerned with the effect of the brea ch
of a mandatory provision regulating the competence or procedure
of the Court as regards cognizance or trial. It is only with reference
to such a breach that the question as to whether it constitutes an
illegality vitiating the proceedings or a mere irregularity arises.”
(Emphasis supplied)
56. In Institute of Chartered Accountants of India v. Vimal Kumar
Surana and another 6, the matter arose under the Chartered Accounts
Act, 1949. The respondent, who had passed the examination of Chartered
Accountant but was not a member of the appellant-Institute, was sought
to be prosecuted on the basis that he had represented before the Tax
Authorities on the basis of the Power of Attorney o r as Legal
Representative and was submitting documents by preparing forged seals.
The Authorised Representative of the appellant-Institute sub mitted a
complaint to the Police Officer. After investigation, th e Police filed a
challan of offences under the IPC and Sections 24 and 26 of the Chartered
Accountants Act. The same was successfully question ed by the
respondent on the basis that it fell foul of the mandate of Section 28 of
the Chartered Accounts Act.
57. Section 28 of the Chartered Accountants Act, 1949 reads as
follows:
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
6 (2011) 1 SCC 534
“28. Sanction to prosecute
No person shall be prosecuted under this Act except on a
complaint made by or under the order of the Council or of the
Central Government.”
58. This Court went on to notice the line of decisions rendered by
this Court which permitted prosecution of distinct offences b y way of
dealing with the argument based on prohibition against prosecution and
punishment for the same offence flowing from Article 20(2) of the
Constitution of India. We notice paragraphs 20,21 and 41 of Vimal Kumar
Surana and another (supra):
“20. In other words, if the particular act of a member of
the Institute or a non-member or a company results in contravention
of the provisions contained in Section 24 or sub-section (1) of
Sections 24-A, 25 or 26 and such act also amounts to crimi nal
misconduct which is defined as an offence under IPC, then a
complaint can be filed by or under the order of the Council or of
the Central Government under Section 28, which may ultimately
result in imposition of the punishment prescribed under Section 24
or sub-section (2) of Sections 24-A, 25 or 26 and such member or
non-member or company can also be prosecuted for any identified
offence under IPC.
21. The object underlying the prohibition contained in Section
28 is to protect the persons engaged in profession of Chartere d
Accountants against false and untenable complaints from
dissatisfied litigants and others. However, there is nothing in the
language of the provisions contained in Chapter VII from which it
can be inferred that Parliament wanted to confer immunity upon
the members and non-members from prosecution and punishment
if the action of such member or non-member amounts to an offence
under IPC or any other law.
xxx xxx xxx xxx
41. It is also apposite to mention that except the provision
contained in Section 28 against the prosecution of a person, who
is alleged to have acted in contravention of sub-section (1) of
Sections 24, 24-A, 25 or 26 otherwise then on a complaint made
by or under the order of the Council or the Central Government,
the Act does not specify the procedure to be followed for punishing
989
such person. In the absence of any such provision, the procedure
prescribed in CrPC has to be followed for inquiry, investigation
and trial of the complaint which may be filed for contravention of
any of the provisions contained in Chapter VII of the Act—Section
4 CrPC.”
59. In State (NCT of Delhi) v. Sanjay, ETC., ETC. 7, the matter
arose under the Mines and Minerals Development and Regulation Act,
1957 (MMDR Act) as also under Sections 378 and 379 of the IPC and
the question which arose for decision was whether the provisio ns of
Sections 21 and 22, apart from other provisions of the MMDR A ct,
operated as a bar to prosecution for offences under Section 379/114 and
other provisions of the IPC. Section 21 of the said Act prescribes various
penalties. Section 22 deals with cognizance of offences and it reads as
follows:
“22.Cognizance of offences.—No court shall take
cognizance of any offence punishable under this Act or any Rules
made thereunder except upon complaint in writing made by a
person authorised in this behalf by the Central Government or the
State Government.”
60. The Court was dealing with appeals from judgments of High
Courts of Delhi and Gujarat. The registration of the cases was challenged
on the basis of Section 22 of the MMDR Act. Paragraphs 8, 9, 10 and 11
reveals the questions which arose and how it came to be dealt wit h by
the High Court:
“8. Criminal Appeal No. 499 of 2011, as stated above, arose
out of the order [Sanjay v. State, (2009) 109 DRJ 594] passed by
the Delhi High Court. The Delhi High Court formulated three
issues for consideration:
(1) Whether the police could have registered an FIR in the
case;
(2) Whether a cognizance can be taken by the Magistrate
concerned on the basis of police report; and
(3) Whether a case of theft was made out for permitting
registration of an FIR under Sections 379/411 of the Penal Code.
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
7 (2014) 9 SCC 772
9. The Delhi High Court after referring various provisions
on the MMDR Act vis-à-vis the Code of Criminal Procedure
disposed of the application directing the respondent to amend the
FIR, which was registered, by converting the offence mentioned
therein under Sections 379/411/120-B/34 IPC to Section 21 of the
MMDR Act. The High Court in para 18 of the impugned order
held as under:
“18. In view of the aforesaid and taking into consideration
the provisions contained under Section 21(6) of the said Act I
hold that:
(i) The offence under the said Act being cognizable
offence, the police could have registered an FIR in this case;
(ii) However, so far as taking cognizance of an
offence under the said Act is concerned, it can be taken by
the Magistrate only on the basis of a complaint filed by an
authorised officer, which may be filed along with the police
report;
(iii) Since the offence of mining of sand without
permission is punishable under Section 21 of the said Act,
the question of the said offence being an offence under
Section 379 IPC does not arise because the said Act makes
illegal mining as an offence only when there is no permit/
licence for such extraction and a complaint in this regard is
filed by an authorised officer.”
10. On the other hand the Gujarat High Court formulated the
following questions for consideration:
(1) Whether Section 22 of the Act would debar even lodging
an FIR before the police with respect to the offences punishable
under the said Act and the Rules made thereunder?
(2) In case such FIRs are not debarred and the police are
permitted to investigate, can the Magistrate concer ned take
cognizance of the offences on a police report?
(3) What would be the effect on the offences punishable
under the Penal Code in view of the provisions contained in the
Act?
991
11. The Gujarat High Court came to the following conclusion:
(i) The offence under the said Act being cognizable
offence, the police could have registered an FIR in this case;
(ii) However, so far as taking cognizance of offence
under the said Act is concerned, it can be taken by the
Magistrate only on the basis of a complaint filed by an authorised
officer, which may be filed along with the police report;
(iii) Since the offence of mining of sand without
permission is punishable under Section 21 of the said Act, the
question of said offence being an offence under Section 379
IPC does not arise because the said Act makes illegal mining
as an offence only when there is no permit/licence for such
extraction and a complaint in this regard is filed by an authorised
officer.”
61. The Gujarat High Court also held that Section 22 did not prohibit
registering an FIR by the Police in regard to offence under the MMDR
Act and the Rules thereunder. However, it was not open to the Magistrate
to take cognizance. This Court, after referring to the decisions in Sanjay,
ETC., ETC. (supra), held as follows:
“69. Considering the principles of interpretation and the
wordings used in Section 22, in our considered opinion, the provision
is not a complete and absolute bar for taking action by the police
for illegal and dishonestly committing theft of minerals including
sand from the riverbed. The Court shall take judicial notice of the
fact that over the years rivers in India have been affected by the
alarming rate of unrestricted sand mining which is damaging the
ecosystem of the rivers and safety of bridges. It also weak ens
riverbeds, fish breeding and destroys the natural habitat of many
organisms. If these illegal activities are not stopped by the State
and the police authorities of the State, it will cause serious
repercussions as mentioned hereinabove. It will not only change
the river hydrology but also will deplete the groundwater levels.
70. There cannot be any dispute with regard to restrictions
imposed under the MMDR Act and remedy provided therein. In
any case, where there is a mining activity by any perso n in
contravention of the provisions of Section 4 and other sections of
the Act, the officer empowered and authorised under the Act
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
shall exercise all the powers including making a complaint before
the Jurisdictional Magistrate. It is also not in dispute th at the
Magistrate shall in such cases take cognizance on the basis of the
complaint filed before it by a duly authorised officer. In case of
breach and violation of Section 4 and other provisions of the Act,
the police officer cannot insist the Magistrate for taking cognizance
under the Act on the basis of the record submitted by the police
alleging contravention of the said Act. In other wo rds, the
prohibition contained in Section 22 of the Act against prosecution
of a person except on a complaint made by the officer is attracted
only when such person is sought to be prosecuted for contravention
of Section 4 of the Act and not for any act or omission whi ch
constitutes an offence under the Penal Code.
71. However, there may be a situation where a person
without any lease or licence or any authority enters into river and
extracts sand, gravel and other minerals and remove or transport
those minerals in a clandestine manner with an intent to remove
dishonestly those minerals from the possession of the State, is
liable to be punished for committing such offence under Sections
378 and 379 of the Penal Code.
72. From a close reading of the provisions of the MMDR
Act and the offence defined under Section 378 IPC, it is manifest
that the ingredients constituting the offence are differe nt. The
contravention of terms and conditions of mining lease or doing
mining activity in violation of Section 4 of the Act is an offence
punishable under Section 21 of the MMDR Act, wherea s
dishonestly removing sand, gravel and other minerals from the
river, which is the property of the State, out of t he State’s
possession without the consent, constitute an offence of the ft.
Hence, merely because initiation of proceeding for commission
of an offence under the MMDR Act on the basis of complaint
cannot and shall not debar the police from taking action against
persons for committing theft of sand and minerals in the manner
mentioned above by exercising power under the Code of Criminal
Procedure and submit a report before the Magistrate for taking
cognizance against such persons. In other words, in a case where
there is a theft of sand and gravel from the government land, the
police can register a case, investigate the same and submit a final
993
report under Section 173 CrPC before a Magistrate h aving
jurisdiction for the purpose of taking cognizance as provided in
Section 190(1)(d) of the Code of Criminal Procedure.
73. After giving our thoughtful consideration in the matter,
in the light of the relevant provisions of the Act vis-à-vis the Code
of Criminal Procedure and the Penal Code, we are of the definite
opinion that the ingredients constituting the offence under t he
MMDR Act and the ingredients of dishonestly removing sand
and gravel from the riverbeds without consent, which is the
property of the State, is a distinct offence under IPC. Hence, for
the commission of offence under Section 378 IPC, on receipt of
the police report, the Magistrate having jurisdiction can ta ke
cognizance of the said offence without awaiting the receipt of
complaint that may be filed by the authorised officer for t aking
cognizance in respect of violation of various provisions of the
MMDR Act. Consequently, the contrary view taken by the
different High Courts cannot be sustained in law and, therefore,
overruled. Consequently, these criminal appeals are disposed of
with a direction to the Magistrates concerned to pr oceed
accordingly.”
(Emphasis supplied)
62. Chapter XII of the CrPC carries the chapter hea ding
“Information to the Police and their Powers to Investigate”. The Chapter
starts off with Section 154 carrying Section heading “Informat ion in
cognizable cases”. It declares that every information relating to a
cognizable offence given to an officer in charge of the police station, if
given orally, is to be reduced to writing and whether given in writing or
reduced to writing it is to be signed by the informant. The key elements
of Section 154 CrPC can be noticed. Information in relation to a
cognizable offence reaching the officer in charge of a polic e station
which is ordinarily understood as first information statement concerning
cognizable offences sets the ball rolling so far as the pol ice officer, in
charge of a police station is concerned. The next provision to notice in
the Chapter is Section 156. It provides that any office r in charge of a
police station may without the order from a Magistrate investigate any
cognizable offence within which a court, having jurisdiction over a local
area within the limits of such station, would have the power to enquire
into or try under the provisions of Chapter XIII. In fact, Section 177 of
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
the CrPC, which is the first Section in Chapter XII I dealing with
jurisdiction of Criminal Courts Inquiries and Trial, proclaims that every
offence shall ordinarily be enquired into and tried by a court within whose
jurisdiction, the offence was committed. Thus, ordinarily, it is the Police
Officer, within whose jurisdiction the cognizable offence is committed,
would have the jurisdiction to investigate that offence. S ection 178
onwards provide for the exceptions to Section 177 and we need n ot
probe this matter further. Sub-section (2) declares the proc eedings of
police officer in a case of cognizable offence shall not in any stag e be
called in question on the ground that the case was one which he was not
empowered to investigate under the provision. Lastly, sub-sec tion (3)
provides that any Magistrate who is empowered under Section 190 may
order such an investigation which the officer is to undertake under sub-
section (1). It is next relevant to notice Section 157 CrPC:
“157. Procedure for investigation preliminary inquiry.(1) If, from
information received or otherwise, an officer in charge of a police
station has reason to suspect the commission of an offence which
he is empowered under section 156 to investigate, he shall forthwith
send a report of the same to a Magistrate empowered to take
cognizance of such offence upon a police report and shall proceed
in person, or shall depute one of his subordinate officers not being
below such rank as the State Government may, by general or
special order, prescribe in this behalf, to proceed, to the spot, to
investigate the facts and circumstances of the case , and, if
necessary, to take measures for the discovery and arrest of the
offender; Provided that-
(a) when information as to the commission of any such
offence is given against any person by name and the case
is not of a serious nature, the officer in charge of a police
station need not proceed in person or depute a subordinate
officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police sta tion
that there is no sufficient ground for entering on an
investigation, he shall not investigate the case.
(2) In each of the cases mentioned in clauses (a) and (b) of the
proviso to sub-section (1), the officer in charge of the police station
shall state in his report his reasons for not fully complying with the
requirements of that sub- section, and, in the case mentio ned in
995
clause (b) of the said proviso, the officer shall also forthwith notify
to the informant, if any, in such manner as may be prescribed by
the State Government, the fact that he will not investi gate the
case or cause it to be investigated.”
63. It comes under the section heading ’Procedure f or
investigation’. The body of the Section can be split-up into the following
parts - (i) An officer in charge of a police station may from information
received have reason to suspect the commission of an offence. He may
also have reason to suspect the commission of cognizable offenc e not
on the basis of any information but otherwise. (ii) As far as information
is concerned, it is clearly relatable to the information w hich has been
provided to him within the meaning of Section 154. Cases where he acts
on his own knowledge would be covered by the expression otherwise.
(iii) The offences must be an offence which he is empowered under
Section 156 to investigate. We have noticed that a police officer is
empowered to investigate a cognizable offence without an order of the
Magistrate. As far as non-cognizable offence is concerned, he cannot
investigate such offence without the order of the Magistrate having power
to try or commit the case for trial. (iv) However, a police officer who
undertakes to investigate the matter is obliged to forthwith send a report
of the same to the Magistrate empowered to take cognizan ce of an
offence upon a police report. It is at once relevant to notice in the facts
of this case that this indispensable element is not present. This is for the
reason that under Section 32 of the Act, a Magistrate is not competent
to take cognizance of the offences under Chapter IV of the Act upon a
police report. At this juncture, we may notice Section 158 CrPC. It speaks
about the manner of sending the report to the Magistrate under Section
157. It is a matter governed by a general or special order issued by the
State Government. Quite clearly even Section 158 cannot apply in the
case of a cognizable offence falling under Chapter IV of the Act for the
reasons which we have adverted to. Section 159 enables the Magistrate
on receiving such report to direct investigation or if he thinks fit at once
to proceed or depute any Magistrate subordinate to him to proceed, t o
hold a preliminary inquiry or otherwise to dispose of the c ase in the
manner provided in the Code. It is clear that the purpose of Section 157
is to hold the police officer accountable to keep informed the Magistrate.
It acts as an assurance that the reports are not tamper ed, and that the
rights of the accused are sought to be secured. The purport of Section
159 is also to enable the Magistrate to exercise co ntrol over the
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
investigation. All these aspects are irrelevant and out of bounds both for
the police officer and the Magistrate in respect of an off ence falling
under chapter IV of the Act.
64. Section 160 refers to investigation under the Chapter, vi z.,
Chapter XII. Section 161 speaks about the examination of wi tnesses
and how the statements are to be reduced to writing. Again, Section 161
speaks about an investigation carried out under Chapter XII. The use to
which statements under Section 161 can be put and the limitation on the
same are spelt out in Section 162 CrPC. Reverting back to Section 157,
we have taken note of the requirement about the police officer reporting
to the Magistrate about the reason to suspect entertained by the poli ce
officer about the commission of a cognizable offence on which t he
Magistrate is to take cognizance on a report. Be it remembered that the
Magistrate can take cognizance under Section 190 of the CrPC on a
complaint, a police report or information received from any person other
than a police officer or otherwise. Section 157 appears to contemplate
information received under Section 154 or knowledge gained otherwise
about the commission of a cognizance offence clothing the police officer
with the power to investigate leading to the sending of the report to the
Magistrate being confined to cases where officer intends to send the
police report which has been defined as the report under Section 173 of
the CrPC. In regard to taking cognizance under Section 32 of the Act, it
is unambiguously clear that there is no place for a police report within
the meaning of Section 173 of the CrPC in regard to offences falling
under Chapter IV of the Act. Section 157 contemplates that the Officer
proceeding either by himself or through his subordinate Officer to
investigate the facts and circumstances, and if nec essary, to take
measures for the discovery and the arrest of the offender. But on reading
the provisions, we gather the unmistakable impression that the law giver
has empowered the police officer to investigate in the case of a cognizable
offence without any order of the Magistrate where he ultim ately in an
appropriate case wishes the Court to take cognizance ba sed on the
material he gathers and transmits a police report. If thi s impression of
ours is not flawed, an inevitable corollary would be that in the ca se of
offence under Chapter IV of the Act though it be cognizable, a police
officer would not have the power to investigate the matter. Section 169
speaks about the duty to release a person in custody if it is found on
investigation that there is no sufficient evidence or reasonable ground of
suspicion to justify forwarding such person to the Magistrate. S ection
997
170 deals with cases where an officer conducting investig ation finds
sufficient evidence or reasonable ground and the accused is forwarded
to the Magistrate empowered to take cognizance of the offence upon a
report. Again, the cardinal requirement for the officer to invoke Section
170 is availability of power with the Magistrate to take cognizance upon
a police report. This key requirement is absent in the case of an offence
falling under Chapter IV of the Act. The link therefore snap s. Section
173 speaks about the report on completion of the investigation for the
police officer. Section 173 (5) is to be read with Section 170, that is to
say, in a case where there is sufficient material for p rosecuting the
concerned person, the documents and the statements of witnesses are
to be forwarded to the Magistrate as provided therein. We have already
noted Section 190 of the CrPC. Sections 154, 156, 157, 158, 159, 160,
161, 170 and 173 are part of a scheme of provisions geared to empower
and require investigation of cognisable offences which are to culminate
in a police report within the meaning of Section 190(b) of the CrPC.
However, what is applicable in respect of offences under Chapter IV of
the Act is not 190 of the CrPC but Section 32 of the Act which does not
permit cognizance being taken on a police report. The entire exercise of
a police officer proceeding on a basis of a FIR becomes futile. It is not
contemplated in law. It therefore becomes unauthorised.
IMPACT OF LALITA KUMARI V. GOVERNMENT OF
UTTAR PRADESH AND OTHERS 8
65. In the said case, a Constitution Bench of this Court has held
that registration of an FIR is mandatory under Section 154 of the CrPC,
if the information discloses commission of a cognizable offence and no
preliminary inquiry is permissible in such a situation. It was further held
that a preliminary inquiry may be conducted only to ascertain whether a
cognizable offence is disclosed or not, if the information received does
not disclose a cognizable offence but indicates the need for such an
inquiry. The Court has also indicated certain cases where a preliminary
inquiry may be conducted, depending on the facts and circumstances of
each case. They include matrimonial disputes, commercial offences and
cases where there is abnormal delay/latches. This Court also held that
the aforesaid were not exhaustive of all conditions which may warrant a
preliminary inquiry.
8 (2014) 2 SCC 1
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
66. We would think that this Court was not, in the said case,
considering a case under the Act or cases similar to those under the Act,
and we would think that having regard to the discussion which we have
made and on a conspectus of the provisions of the CrPC and Section 32
of the Act, the principle laid down in Lalita Kumari (supra) is not attracted
when an information is made before a Police Officer making out the
commission of an offence under Chapter IV of the Act mandat ing a
registration of a FIR under Section 154 of the CrPC.
DUTY OF POLICE OFFICER UNDER SECTION 154 OF THE
CRPC IRRESPECTIVE OF IMPACT OF TERRITORIAL
JURISDICTION
67. In State of A.P. v. Punati Ramulu and others 9, the Police
Constable had refused to record the complaint on the ground tha t the
said Police Station had no territorial jurisdiction over the place of crime.
It was held as follows:
“4. … It was certainly a dereliction of duty on the part of
the constable because any lack of territorial jurisdiction, could not
have prevented the constable from recording information a bout
the cognizable offence and forwarding the same to the poli ce
station having jurisdiction over the area in which the crime was
said to have been committed.”
(Emphasis supplied)
68. In Satvinder Kaur v. State (Govt. of NCT of Delhi) and
another 10 , this Court held, inter alia, as follows:
“10. It is true that territorial jurisdiction also is prescribed
under sub-section (1) to the extent that the officer can investigate
any cognizable case which a court having jurisdiction over the
local area within the limits of such police station would have power
to enquire into or try under the provisions of Chapter XIII.
However, sub-section (2) makes the position clear by providing
that no proceeding of a police officer in any such case shall at any
stage be called in question on the ground that the case was one
which such officer was not empowered to investigate. A fter
investigation is completed, the result of such investigation is required
to be submitted as provided under Sections 168, 169 and 170.
9
AIR 1993 SC 2644
10 AIR 1999 SC 3596
999
Section 170 specifically provides that if, upon an investigation, it
appears to the officer in charge of the police station that there is
sufficient evidence or reasonable ground of suspicion to justif y
the forwarding of the accused to a Magistrate, such officer shall
forward the accused under custody to a Magistrate empowered
to take cognizance of the offence upon a police report and to try
the accused or commit for trial. Further, if the investigating officer
arrives at the conclusion that the crime was not committed within
the territorial jurisdiction of the police station, then FIR ca n be
forwarded to the police station having jurisdiction over the area in
which the crime is committed. But this would not mean that in a
case which requires investigation, the police officer can refuse to
record the FIR and/or investigate it.”
(Emphasis supplied)
69. This was a case where the FIR had been quashed by the
High Court under Section 482 CrPC on the ground that the Police Officer
at Delhi was not having territorial jurisdiction. It was a case under Section
498A of the IPC. This Court set aside the judgment of the High Court
quashing the FIR, also taking note of Section 156(2) of the IPC.
70. There is practice of registering an FIR as a Zero FIR, when
the Police Station at which FIR is registered, does not ha ve territorial
jurisdiction, and then, it is made over to the Police Station which has
jurisdiction in the matter. Could it, therefore, be said that when information
is given to a Police Officer, within the meaning of Secti on 154 of the
CrPC, in relation to the commission of a cognizable offence under Chapter
IV of the Act, the Police Officer must register a FIR and then make it
over to the Inspector.
71. It is to be noted that the duty to register FIR, when information
is received about a cognizable offence falling under Chapter IV of the
Act, it is clear from the very inception that a Police O fficer has no
jurisdiction to investigate the offence. It is not a case of absence of
territorial jurisdiction. No doubt, if it is a case of another Police Officer
being empowered to investigate the offence in terms of pow ers under
CrPC, the law is, as laid down, that there is the obligation to register an
FIR and then make it over to the Police Station which has jurisdiction. In
fact, a conflict, when in the context of Sections 178 to 185 of the CrPC,
which constitute exceptions to the general principle laid down in Section
177 of the CrPC, the High Court is to decide the dispute, as is provided
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
in Section 186 of the CrPC. If an information is relatable only to cognizable
offences under Chapter IV of the Act, we would think that the Police
Officer would be out of bounds and he has no role to p lay in the
investigation as neither he nor any other Police Officer has any role to
play in the investigation. His duty lies in referring the complainant to the
concerned Drugs Inspector. If he is in receipt of informat ion about an
offence under Chapter IV of the Act, he must promptly notify the
concerned Drugs Inspector.
POWER TO ARREST UNDER THE ACT
72. One of the reliefs which is sought by the first respondent-writ
petitioner was a direction not to arrest him. The Act does not expressly
confer upon the Inspector the power to arrest. This brings up the issue,
therefore, of the person empowered to arrest.
73. Perusal of Section 36AC of the Act makes it clear that arrest
is contemplated under the Act. Conditions have been imposed for grant
of bail as enacted in Section 36AC which we have already refer red. If
the Inspector under the Act has no authority to carry out th e arrest,
there cannot be a situation where arrest is in the contempl ation of the
law giver and yet there is no person who can effectuate th at arrest.
74. The further question which would therefore arise is, the impact
of finding that arrest can be effected by a police officer in respect of a
cognizable offence under Chapter IV of the Act on the need to register
an FIR under Section 154. We have already noticed that under Section
157 of the Act making a report to the Magistrate who can take cognizance
of a police report renders the provision as such inapplicable under Chapter
IV of the Act.
75. The question would arise if investigation is not permissible for
a police officer under Section 157 and that he cannot give a report under
the said provision, can he be empowered to carry out the arrest? Is the
scheme of arrest under Section 41 of the Act interlinked with the power
of arrest under Section 157? We heard the learned Counsel for the
petitioner and the learned Amicus Curiae on this point and have considered
their Written Submissions as well.
PROVISIONS AS TO ARREST IN THE CONSTITUTION OF
INDIA – ARTICLE 22(1) AND ARTICLE 22(2).
76. Article 22(1) and Article 22(2) of the Constitution of India,
reads as follows:
1001
“22. Protection against arrest and detention in certain cases
(1) No person who is arrested shall be detained in custody without
being informed, as soon as may be, of the grounds for such arrest
nor shall he be denied the right to consult, and to be defended by,
a legal practitioner of his choice
(2) Every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of twenty
four hours of such arrest excluding the time necessary for the
journey from the place of arrest to the court of the magistrate and
no such person shall be detained in custody beyond the said period
without the authority of a magistrate.”
77. At this juncture, it is necessary to notice the judgment of this
Court in D.K. Basu v. State of West Bengal 11 . In the said case, this
Court issued various directions in regard to safeguards to be observed in
the matter of effecting arrest. They are found in paragraph-35 and read
as follows:
“35. We, therefore, consider it appropriate to issue the
following requirements to be followed in all cases of arrest or
detention till legal provisions are made in that behalf as preventive
measures:
(1) The police personnel carrying out the arrest and
handling the interrogation of the arrestee should bear accurate,
visible and clear identification and name tags with t heir
designations. The particulars of all such police personnel who
handle interrogation of the arrestee must be recorded in a
register.
(2) That the police officer carrying out the arrest of the
arrestee shall prepare a memo of arrest at the time of arrest
and such memo shall be attested by at least one witness, who
may either be a member of the family of the arrestee or a
respectable person of the locality from where the arrest is
made. It shall also be countersigned by the arrestee and shall
contain the time and date of arrest.
(3) A person who has been arrested or detained and is
being held in custody in a police station or interrogation centre
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
11 (1997) 1 SCC 416
or other lock-up, shall be entitled to have one friend or relative
or other person known to him or having interest in his welfare
being informed, as soon as practicable, that he has been arrested
and is being detained at the particular place, unless the attesting
witness of the memo of arrest is himself such a friend or a
relative of the arrestee.
(4) The time, place of arrest and venue of custody of an
arrestee must be notified by the police where the next friend
or relative of the arrestee lives outside the district or town
through the Legal Aid Organisation in the District and the police
station of the area concerned telegraphically within a period of
8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this
right to have someone informed of his arrest or detention as
soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of
detention regarding the arrest of the person which shall al so
disclose the name of the next friend of the person who has
been informed of the arrest and the names and particulars of
the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also
examined at the time of his arrest and major and minor injuries,
if any present on his/her body, must be recorded at that time.
The “Inspection Memo” must be signed both by the arrestee
and the police officer effecting the arrest and its copy provided
to the arrestee.
(8) The arrestee should be subjected to medical
examination by a trained doctor every 48 hours during his
detention in custody by a doctor on the panel of approved
doctors appointed by Director, Health Services of the State or
Union Territory concerned. Director, Health Services should
prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of
arrest, referred to above, should be sent to the Illaqa Magistrate
for his record.
(10) The arrestee may be permitted to meet his lawyer
during interrogation, though not throughout the interrogation.
1003
(11) A police control room should be provided at all district
and State headquarters, where information regarding the arrest
and the place of custody of the arrestee shall be communicated
by the officer causing the arrest, within 12 hours of effecting
the arrest and at the police control room it should be displayed
on a conspicuous notice board.”
78. We may observe what this Court laid down in paragraphs-36
and 37:
“36. Failure to comply with the requirements hereinabove
mentioned shall apart from rendering the official concerned liable
for departmental action, also render him liable to be punished for
contempt of court and the proceedings for contempt of court may
be instituted in any High Court of the country, having territorial
jurisdiction over the matter.
37. The requirements, referred to above flow from Articles
21 and 22(1) of the Constitution and need to be strictly followed.
These would apply with equal force to the other governmental
agencies also to which a reference has been made earlier.”
79. When this Court laid down in paragraph-37 that the
requirements laid down by this Court would apply with equal force to
other governmental agencies, to which reference was made earlier, the
Court had in mind the following statements in paragraph-30 of th e
Judgment:
“30. Apart from the police, there are several other
governmental authorities also like Directorate of R evenue
Intelligence, Directorate of Enforcement, Coastal Guard, Central
Reserve Police Force (CRPF), Border Security Force (BSF), the
Central Industrial Security Force (CISF), the State Armed Police,
Intelligence Agencies like the Intelligence Bureau, RAW, Central
Bureau of Investigation (CBI), CID, Traffic Police, Mounted Police
and ITBP, which have the power to detain a person a nd to
interrogate him in connection with the investigation of economic
offences, offences under the Essential Commodities Act, Excise
and Customs Act, Foreign Exchange Regulation Act etc. ……”
No doubt, these are all cases where express power of arrest was
conferred on those Authorities under the concerned law.
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
80. We may notice that a Bench of this Court in Arnesh Kumar v.
State of Bihar and another 12 again considered the aspect relating to the
balance that is to be struck between individual liberty and societal order,
while exercising power of arrest. Though the matter arose under Section
498A of the Indian Penal Code, 1860, which deals with matrimonial
cruelty read with the Dowry Prohibition Act, 1961, the Court issued
directions as contained in from paragraph-11.1 to 11.8. It also h eld as
follows:
“12. We hasten to add that the directions aforesaid shall not only
apply to the cases under Section 498-A IPC or Section 4 of the
Dowry Prohibition Act, the case in hand, but also such cases where
offence is punishable with imprisonment for a term which may be
less than seven years or which may extend to seven years, whether
with or without fine.”
81. Still later, we may notice that a Bench of this Court frowned
upon arrest which was unwarranted in the decision reported in Rini Johar
v. State of M.P. 13 and the Court also granted compensation, having regard
to the manner in which the petitioner was treated in the said case. After
referring to Arnesh Kumar (supra), this Court in Rini Johar (supra),
inter alia, held as follows:
“22. We have referred to the enquiry report and the legal
position prevalent in the field. On a studied scrutiny of the report,
it is quite vivid that the arrest of the petitioners was not made by
following the procedure of arrest. Section 41-A CrPC as has been
interpreted by this Court has not been followed. The report clearly
shows that there have been number of violations in the arrest, and
seizure. Circumstances in no case justify the manner in which the
petitioners were treated.”
No doubt, the Court, in Arnesh Gupta (supra), was dealing with
the case which dealt with a situation where the offences were punishable
with imprisonment upto seven years, and as mandated in Section 41 of
the CrPC., reasons had to exist for effecting an arrest as provided therein.
THE POWER OF ARREST UNDER THE CRPC
82. Chapter V of the CrPC deals with the arrest of persons. Section
41 of the CrPC, vide the Code of Criminal Procedure (Amendment)
12 (2014) 8 SCC 273
13 (2016) 11 SCC 703
1005
Act, 2008 (Act 5 of 2009, Section 5) (w.e.f. 01-11-2010), deals with the
power of the Police Officer to arrest without warrant. It reads as follows
after substitution:
“41. When police may arrest without warrant.-(1) Any
police officer may without an order from a Magistrate and without
a warrant, arrest any person-
14 (a) who commits, in the presence of a police officer, a cognizable
offence;
(b) against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable
suspicion exists that he has committed a cognizable offence
punishable with imprisonment for a term which may be less
than seven years or which may extend to seven years
whether with or without fine, if the following conditions are
satisfied, namely:-
(i) the police officer has reason to believe on the basis of
such complaint, information, or suspicion that such person
has committed the said offence;
(ii) the police office is satisfied that such arrest is necessary-
(a) to prevent such person from committing any further
offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence
of the offence to disappear or tampering with such
evidence in any manner; or
(d) to prevent such person from making any
inducement, threat or promise to any person
acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the Court
or to the police officer; or
(e) as unless such person is arrested, his presence in
the Court whenever required cannot be ensured,
and the police officer shall record while making such
arrest, his reasons in writing:
14 Substituted by Act 5 of 2009, sec.5(i), for clause s (a) and (b) (w.e.f. 1-11-2010).
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
15 [Provided that a police officer shall, in all cases where
the arrest of a person is not required under the provisions
of this sub-section, record the reasons in writing for not
making the arrest.]
(ba) against whom credible information has been received th at
he has committed a cognizable offence punishable with
imprisonment for a term which may extend to more than
seven years whether with or without fine or with death
sentence and the police officer has reason to believe on the
basis of that information that such person has committed
the said offence;]
(c) who has been proclaimed as an offender either under this
Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably
be suspected to be stolen property and who may reasonably
be suspected of having committed an offence with
reference to such thing; or
(e) who obstructs a police officer while in the execution of his
duty, or who has escaped, or attempts to escape, from lawful
custody; or
(f) who is reasonably suspected of being a deserter from any
of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable
complaint has been made, or credible information has been
received, or a reasonable suspicion exists, of his having
been concerned in, any act committed at any place out of
India which, if committed in India, would have been
punishable as an offence, and for which he is, under any
law relating to extradition, or otherwise, liable t o be
apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any
rule made under sub- section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral ,
has been received from another police officer, provided that
15 Ins. By Act 41 of 2010, sec.2 (w.e.f. 2-11-2010).
1007
the requisition specifies the person to be arrested and the
offence or other cause for which the arrest is to be made
and it appears therefrom that the person might lawfully be
arrested without a warrant by the officer who issued the
requisition.
16 [(2) Subject to the provisions of Section 42, no per son
concerned in a non-cognizable offence or against whom a
complaint has been made or credible information has been
received or reasonable suspicion exists of his having so
concerned, shall be arrested except under a warrant or order
of a Magistrate.].”
83. Section 41A of the CrPC, inserted w.e.f. 01.11.2010, provides
for issuance of Notice by the Police Officer in all the cases covered by
Sub-Section (1) of Section 41 of the CrPC, where the arrest of a person
is not required, to appear before him. As long as a person complies with
the Notice, Section 41A(iii) prohibits arrest unless the Police Officer, for
reasons to be recorded, is of the view that he is to be arrested. Se ction
41B of the CrPC, again inserted w.e.f. 01.11.2010, casts a duty on a
Police Officer, making an arrest, to bear an accurate, visibl e and clear
identification of his name. He is to prepare a Memorandum of Arrest,
which is, inter alia, to be countersigned by the person arrested. Section
41D of the CrPC confers a right on the arrested person to m eet an
Advocate of his choice during the interrogation, though not throughout
interrogation. Under Section 42 of the CrPC, if a person commits a non-
cognizable offence in the presence of a Police Officer or he is accused
of committing a non-cognizable offence, and the Police Offi cer, on
demanding his name and residence, is met with a refusal or the giving of
a name or residence, which the Officer believes to be fals e, arrest can
be made but for the purpose of ascertaining the name and residence. In
fact, he is to be released immediately on executing a bond when the true
name and residence is ascertained. If there is failure to ascertain the
address within twenty-four hours, inter alia, of arrest, no doub t, it is
forthwith forwarded to the nearest Magistrate having jurisdiction. The
Act contemplates arrest by a private person. The power and the procedure,
is detailed in Section 43 of the CrPC, it reads as follows:
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
16 Subs. By Act 5 of 2009, sec. 5(ii), for sub-Sectio n (2) (w.e.f. 1-11-2010).
“43. Arrest by private person and procedure on such arrest.
(1) Any private person may arrest or cause to be arreste d any
person who in his presence commits a non- bailable and cognizable
offence, or any proclaimed offender, and, without unnecessary
delay, shall make over or cause to be made over any person s o
arrested to a police officer, or, in the absence of a police officer,
take such person or cause him to be taken in custody to the nearest
police station.
(2) If there is reason to believe that such person comes under the
provisions of section 41, a police officer shall re- arrest him.
(3) If there is reason to believe that he has committed a non-
cognizable offence, and he refuses on the demand of a police
officer to give his name and residence, or gives a name or residence
which such officer has reason to believe to be false, he sh all be
dealt with under the provisions of section 42; but if there is no
sufficient reason to believe that he has committed any of fence,
he shall be at once released.”
84. Section 46 of the CrPC provides for the manner of arrest.
Section 47 enables the Police Officer to search the pl ace entered by a
person sought to be arrested. Section 48 of the CrPC reads as follows:
“48. Pursuit of offenders into other jurisdictions. A police officer
may, for the purpose of arresting without warrant any person whom
he is authorised to arrest, pursue such person into any plac e in
India.”
85. The person arrested is not to be subjected to more rest raint
than is necessary to prevent his escape, declares Section 49 of the CrPC.
Every Police Officer or other person, arresting a pers on without a
warrant, is bound forthwith to communicate to him all particulars of the
offence for which he is arrested or other grounds for such arrest. This is
provided for in Section 50 of the CrPC. A Police Officer, when he arrests
a person without warrant and he is not accused of committing a non-
bailable offence, is duty-bound to inform him of his entitl ement to be
released on Bail. The Police Officer is also under an obligation to inform,
under Section 50A of the CrPC, a nominated person about the factum of
arrest. This came into force on 23.06.2006. Section 51 deals with search
of the arrested person.
1009
86. Section 54 of the CrPC declares that when any person is
arrested, he shall be examined by a Medical Officer. Section 54A of the
CrPC, inserted w.e.f. 23.06.2006, specifically provides for identification
of the arrested person. Section 55A of the CrPC, in serted w.e.f.
31.12.2009, makes it the duty of the person, having the custody of t he
person, to take reasonable care of the health and safety. S ection 56 of
the CrPC makes it the duty of the Police Officer, arre sting without
warrant, to produce the person arrested before a Magistra te having
jurisdiction without unnecessary delay or before the Officer In-charge
of a Police Station. This is, no doubt, subject to the provisions as to Bail.
Section 57 of the CrPC, reads as follows:
“57. Person arrested not to be detained more than twenty- four
hours. No police officer shall detain in custody a person arrested
without warrant for a longer period than under all the circumstances
of the case is reasonable, and such period shall not, in the absence
of a special order of a Magistrate under section 167, exceed twenty-
four hours exclusive of the time necessary for the journey f rom
the place of arrest to the Magistrate’ s Court.”
87. The Officer In-charge of Police Station is to report about all
persons arrested without warrant to the District Magistrate or the Sub-
Divisional Magistrate as directed by the District Magistrate. Section 59
of the CrPC provides that no person, who has been arrested by a Police
Officer, shall be discharged, except on his own bond or on Bail or under
the Special Order of the Magistrate. Section 60A of the CrPC provides
that no arrest is to be made, except in accordance with the provisions of
the CrPC or any other law being in force, providing for arrest. Chapter
XI of the CrPC provides for preventive action of the Police. Section 151
of the CrPC, inter alia , empowers a Police Officer, knowing of a design
by a person to commit a cognizable offence, to arrest him without orders
from a Magistrate and without a warrant. Section 157 of t he CrPC
provides, inter alia, that the Police Officer, proceeding to investigate a
case, may take measures for the arrest of the offender. Sect ion 167 of
the CrPC deals with a case where investigation is not completed within
twenty-four hours, as fixed in Section 57 of the CrPC. It provides that in
such a situation, if there are grounds for believing that the accusation or
information is well founded, the person arrested, is to be forwarded to
the Magistrate, inter alia. Section 167 empowers Magistrate to order
remand of the accused person, as provided therein.
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
A FEW WORDS ABOUT THE PROVISIONS AS TO BAIL
88. Chapter XXXIII of the CrPC deals with Bail. Section 436 of
the CrPC deals with Bail in the case of an arrest of a person accused of
a bailable offence. There is a Statutory Right to Bail in t he manner
provided therein. Section 437 of the CrPC provides for Bail in the case
of a non-bailable offence. It, essentially, deals with a situation where a
person is brought before a court other than the High Court or Court of
Sessions. There are certain restrictions and conditions to be fulfilled in
the matter of grant of Bail on the Court, as is stated therein.
89. Section 439 of the CrPC, confers special powers on the High
Court or the Court of Sessions in regard to Bail. It reads as follows:
“439. Special powers of High Court or Court of Session regarding
bail.
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in cus tody be
released on bail, and if the offence is of the nature specifi ed in
subsection (3) of section 437, may impose any condition which it
considers necessary for the purposes mentioned in that sub-
section;
(b) that any condition imposed by a Magistrate when releasing an
person on bail be set aside or modified: Provided that the H igh
Court or the Court of Session shall, before granting bail to a person
who is accused of an offence which is triable exclusively by the
Court of Session or which, though not so triable, is punishable
with imprisonment for life, give notice of the application for bail to
the Public Prosecutor unless it is, for reasons to be recor ded in
writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person
who has been released on bail under this Chapter be arrested and
commit him to custody.”
90. Section 36AC of the Act, around which much arguments were
addressed reads as follows:
“36AC. Offences to be cognizable and non-bailable in certai n
cases. — (1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974),—
1011
(a) every offence, relating to adulterated or spurious drug and
punishable under clauses (a) and (c) of sub-section (1) of section
13, clause (a) of sub-section (2) of section 13, sub-section (3) of
section 22, clauses (a) and (c) of section 27, section 28, section
28A, section 28B and sub-sections (1) and (2) of section 30 and
other offences relating to adulterated drugs or spurious drugs,
shall be cognizable.
(b) no person accused, of an offence punishable under clauses
(a) and (c) of sub-section (1) of section 13, clause (a) o f sub-
section (2) of section 13, sub-section (3) of section 22, clauses (a)
and (c) of section 27, section 28, section 28A, section 28B and
sub-sections (1) and (2) of section 30 and other offences relating
to adulterated drugs or spurious drugs, shall be released on bail or
on his own bond unless—
(i) the Public Prosecutor has been given an opportunity to oppose
the application for such release; and
(ii) where the Public Prosecutor opposes the application, the Court
is satisfied that there are reasonable grounds for believing that he
is not guilty of such offence and that he is not likely to commit any
offence while on bail:
Provided that a person, who, is under the age of sixteen years, or
is a woman or is sick or infirm, may be released on bail, if the
Special Court so directs.
(2) The limitation on granting of bail specified in clause (b) of
sub-section (1) is in addition to the limitations under the Code of
Criminal Procedure, 1973 (2 of 1974) or any other law for the
time being in force on granting of bail.
(3) Nothing contained in this section shall be deemed to affect the
special powers of the High Court regarding bail under section 439
of the Code of Criminal Procedure, 1973 (2 of 1974) and the High
Court may exercise such powers including the power under clause
(b) of sub-section (1) of that section as if the re ference to
“Magistrate” in that section includes also a reference to a “Special
Court” designated under section 36AB.”
91. The learned Counsel for the Union of India would submit that
the Inspector, under Section 32 of the Act, cannot be treated as a Police
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
Officer who has the power to arrest under the CrPC. Reliance is placed
on Badaku Joti Savant v. State of Mysore 17 . Similarly, support is drawn
from Raj Kumar Karwal v. Union of India and others 18 . Reliance is also
placed on Ramesh Chandra Mehta v. State of W.B. 19 , Illias v. Collector
of Customs, Madras 20 , State of U.P. v. Durga Prasad 21 and Balkishan
A. Devidayal v. State of Maharashtra 22 . These decisions, apparently,
are relied on to show that Officers of Department, including the
Directorate of Revenue Intelligence (DRI), invested with powe rs of
investigation under the Narcotic Drugs and Psychotropic Su bstances
Act, 1985, Customs Act, 1962 and under the Railway Property (Unlawful
Possession) Act, 1966, are not Police Officers. It is, therefore, the case
of the petitioner that important indispensable attribute of a Police Officer
is not only authority to investigate but to also have power to file a Report
under Section 173 of the CrPC.
92. It is further contended that unlike the Prevention of Money-
Laundering Act, 2002, which specially provides that “no Police Officer
can investigate into an offence under the Act”, the Act in q uestion is
silent. The special provision must prevail in case of conflic t with the
general provision. In view of absence of specific powers on the Inspector
under the Act, provisions of CrPC will prevail. A literal interpretation,
according to the plain meaning of the language, is commended for our
acceptance. The provisions of Section 36AC of the Act are emphasized
before us treating offences thereunder as being cognizable and non-
bailable. It is submitted that there is power to arrest with the Police. The
judgment in Deepak Mahajan (supra) is sought to be distinguished. The
implication of Section 36AC of the Act is that the offences set-out therein
can be investigated by the Police. Therefore, Section 36AC will apply
notwithstanding Section 32 of the Act. Otherwise, the intention of t he
Legislature, in making the offence cognizable and, at the same time, to
denude the Police of the power to prosecute, would be a contradiction.
It is pointed out that before Section 36AC of the Act, the offences relating
to adulterated and spurious drugs under the Act, were non-cogniz able
17 (1966) 3 SCR 698
18 (1990) 2 SCC 409
19 (1969) 2 SCR 461
20 (1969) 2 SCR 613
21 (1975) 3 SCC 210
22 (1980) 4 SCC 600
1013
offences. It is also contended that Section 36AC of the Act now makes
an exception by empowering the Police to investigate and consequently
prosecute for the offences specifically set-out in Sectio n 36AC. It is
pointed out that the offences set-out in Section 36AC, other th an the
offences relating to adulterated drugs and spurious drugs, could not have
been considered cognizable in terms of Schedule I Part 2 of the CrPC.
Except Section 27A and 27C and Section 30(1) of the Act, all other
provisions mentioned in Section 36AC of the Act, were non-cognizable
offences as per Schedule I Part 2 of the CrPC. But having regard to the
amended Section 36AC of the Act, it is the special provisions in Section
36AC, which will prevail.
THE SUBMISSIONS OF THE LEARNED AMICUS IN
REGARD TO ARREST.
93. When the Court pointed out that there is no express power on
the Drugs Inspector under the Act to arrest and when an arrest is effected,
whether it becomes necessary to register an FIR under Sect ion 154 of
the CrPC. The learned Amicus Curiae submitted as follows:
He agreed that for a person to be released on Bail, he should
have been remanded to custody. He should further have been
arrested under Section 157 of the CrPC in order that he be
remanded under Section 167 of the CrPC. If he is arrested under
Section 41(1) of the CrPC, immediately thereafter, a case should
be registered and he should be sent to the Court seeking remand.
Any case registered under Section 154 or 155 of the CrPC, is to
culminate in the Report under Section 173(2) of the CrPC. There
is no other way for giving disposal to the case. Filing of suc h a
Final Report under Section 190 of the CrPC is to take cognizance,
and since Section 32 of the Act would bar such cognizance, no
purpose would be served in registering the case. The Legislative
intent, under Section 32 of the Act, cannot be diluted. The Police
Officer, therefore, cannot arrest under Section 157 of the CrPC.
While introducing Section 36AC, the Legislature was presumed
to know the bar in Section 32. There is an inconsistency between
Section 32 and Section 36AC, though they were amend ed/
introduced by the same amendment. It becomes the duty of the
Court to avoid a head-on clash between the two Sections. It i s
contended that the Court must effect reconciliation. Reliance is
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
placed on judgment of this Court in D. Sanjeevayya v. Election
Tribunal, Andhra Pradesh and others 23 .
94. Learned Amicus Curiae further submits that Section 21 of the
Act speaks of the “Appointment of the Inspectors”. The qualifications
of Inspectors are provided in Rule 49 of the Drugs and Cosmetics Rules.
They are Experts in the subjects so far as the powers are provided in
Sections 22 and 23 of the Act. The provisions in Section 23 are mandatory.
The Act provides for getting a Report on the sample and the accused is
also enabled to seek a Second Report from the Central Laboratory. The
Police Officer may not have the qualifications. He may not know how
to draw the sample. The procedure can be meaningfully followed only
by the Inspectors. Legislature did not intend to give similar pow ers to
the Police. It is further contended that if it is held that the Police can file
a Final Report, upon which cognizance can be taken, it will make Section
32 of the Act non-existent. Similarly, in an attempt to interpret Section
36AC, if the Police is conferred with the power to arrest, it will lead to
authorizing the Police to also register the case under Section 154 of the
CrPC and to file a Final Report under Section 173(2) of the CrPC. It is
difficult to harmonise Section 32 and Section 36AC of the Act, i t is
pointed out. The learned Amicus Curiae draws our attent ion to the
following observations of this Court in Sultana Begum v. Prem Chand
Jain 24 :
“11. The statute has to be read as a whole to find out the real
intention of the legislature.
12. In Canada Sugar Refining Co. v. R. [1898 AC 735 : 67
LJPC 126] , Lord Davy observed:
“Every clause of a statute should be construed with
reference to the context and other clauses of the Act, so as, as
far as possible, to make a consistent enactment of the whol e
statute or series of statutes relating to the subject-matt er.”
13. This Court has adopted the same rule in M. Pentiah v. Muddala
Veeramallappa [AIR 1961 SC 1107 : (1961) 2 SCR 295] ; Gammon
India Ltd. v. Union of India [(1974) 1 SCC 596 : 1974 SCC (L&S)
252 : AIR 1974 SC 960] ; Mysore SRTC v. Mirja Khasim Ali
Beg [(1977) 2 SCC 457 : 1974 SCC (L&S) 282 : AIR 1977 SC
23 AIR 1967 SC 1211
24 (1997) 1 SCC 373
1015
747] ; V. Tulasamma v. Sesha Reddy [(1977) 3 SCC 99 : AIR
1977 SC 1944] ; Punjab Beverages (P) Ltd. v. Suresh
Chand [(1978) 2 SCC 144 : 1978 SCC (L&S) 165 : AIR 1978 SC
995] ; CIT v. National Taj Traders [(1980) 1 SCC 370 : 1980 SCC
(Tax) 124 : AIR 1980 SC 485] ; Calcutta Gas Co. (Proprietary)
Ltd. v. State of W.B. [AIR 1962 SC 1044 : 1962 Supp (3) SCR 1]
and J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. State of U.P. [AIR
1961 SC 1170 : (1961) 1 LLJ 540]
xxx xxx xxx xxx
15. On a conspectus of the case-law indicated above, the
following principles are clearly discernible:
(1) It is the duty of the courts to avoid a head-on clash
between two sections of the Act and to construe the provisions
which appear to be in conflict with each other in such a manner
as to harmonise them.
(2) The provisions of one section of a statute cannot be
used to defeat the other provisions unless the court, in spite of its
efforts, finds it impossible to effect reconciliation between them.
(3) It has to be borne in mind by all the courts all the time
that when there are two conflicting provisions in an Act, whi ch
cannot be reconciled with each other, they should be so interpreted
that, if possible, effect should be given to both. This is the essence
of the rule of “harmonious construction”.
(4) The courts have also to keep in mind that an
interpretation which reduces one of the provisions as a “dea d
letter” or “useless lumber” is not harmonious construction.
(5) To harmonise is not to destroy any statutory provision
or to render it otiose.”
95. Police cannot arrest as there can be no investigation b y the
Police. Section 36AC of the Act stipulates stringent c onditions for
granting Bail. It can be made applicable when the accused is remanded
to the custody by the Magistrate while committing the case to the Sessions
Court.
96. As regards Section 41 of the CrPC, the learned Amicus Curiae
would point out that empowering the Police to arrest in respect of
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
cognizable offence, under the said provisions, being a general provision,
may not be countenanced as the general provisions are overridden by
the provisions of the Act. Again, arrest under Section 41 of t he CrPC
must be followed by the registration of the case under Section 154 of the
CrPC, which is not possible in view of Section 32 of the Act. The learned
Amicus Curiae also voices the apprehension that if power to a rrest is
conferred on the Police Officer, under Section 41, then, in every special
enactment, such as the Food Adulteration Act, Income-Tax Act, F ood
Safety and Standards Act, Customs Act, etc., the Police will arrest under
Section 41 of the CrPC, register a case and file a Final Report. The
special provisions of those Acts, restricting cognizance only on the basis
of a complaint, would be rendered nugatory.
97. The learned Amicus Curiae would also submit that though
there is no specific provision empowering the Drugs Inspector to arrest,
Section 22(1)(d) of the Act may be interpreted and it be held that the
Inspector has power to arrest. In this regard, reliance is placed on Deepak
Mahajan (supra).
ANALYSIS
98. The arrest of a person involves an encroachment on hi s
personal liberty. Article 21 of the Constitution of India declares that no
person shall be deprived of his personal liberty and l ife except in
accordance with procedure established by law. There can be no doubt
that the power to arrest any person therefore must be premised on a law
which authorizes the same.
99. Under the Act, as noted by us, and bearing in mind the law
laid down in connection with similar Statutes, we have no hesitation in
rejecting the argument of the petitioner that after the amendment of
Section 36AC of the Act, making the offences cognizable a nd non-
bailable, it is open to the Police Officer to prosecute the person for the
offences set-out in Section 36AC of the Act. Having regard to the express
provisions of Section 32 of the Act, insofar as the prosecution i s to be
launched qua offences falling within the four walls of Chapter IV of the
Act, and which are also the subject matter of Section 36AC of the Act,
there cannot be any doubt that prosecution of the offender, for s uch
offences, can be done only in the manner provided in Section 32 of the
Act. The prosecution can be launched only by the persons mentioned in
Section 32 of the Act. A Police Officer, as such, does not figure as one
of the persons who may prefer a report under Section 173(2) of t he
1017
CrPC, on which, cognizance could be taken by the Special Court.
Undoubtedly, as we have already clarified in respect of an offence under
Chapter IV, if the acts or omission also constitutes an offence under any
other law, under Section 32(3) of the Act, it may be open to the Police
Officer, if he is otherwise empowered under the said law, to prosecute
the person for the same offence, to act as such.
100. Consequently, the registration of an FIR, which under the
scheme of the CrPC, sets the ball rolling, empowering the Police Officer
to investigate under Section 157 of the CrPC, and gather ma terial and
finally file a Report, would all appear to us to be inapplicable to an offence
under Chapter IV of the Act.
101. The conundrum, however, is posed by the aspect relating to
arrest. Undoubtedly, there is no express power on the Inspector to arrest
under the Act. The argument of the learned Additional Solicitor General,
Ms. Pinky Anand that the Drugs Inspector could not be a Police Officer
as he is not a person who can file a Report under Section 173 of the
CrPC and, therefore, he cannot arrest, does not appeal to us. The decisions
relied upon by the learned Counsel, referred to by us in p aragraph-91
hereinbefore, only declare that the Customs Officer under the Customs
Act and the other officers in the enactments, which we have re ferred
to, are not Police Officers in the context of Section 25 of t he Indian
Evidence Act, 1872 (hereinafter referred to as ‘the Evidence Act’, for
short). Section 25 of the Evidence Act renders inadmissible a confession
made to a Police Officer. The question here is not whether the Drugs
Inspector is a Police Officer and the question here is whet her he is
empowered to carry out arrest of a person under the Act. St ill further,
the question to be answered is, whether a Police officer under the CrPC
is deprived of his power, under the CrPC, to arrest. T hese are the
questions to be answered by us.
102. The Court must start with the presumption that Parliament,
which is author of the CrPC and also the Act in question, was aware of
the provisions of the CrPC, as it existed at the time when t he Act was
enacted in 1940. This is following the principle that the Legislature must
be assumed to know the law which exists on the Statute Book w hen it
makes a new law. It must, therefore, be assumed to know that the power
of arrest is expressly conferred on the Police Officer in the manner
which we have referred to. The Legislature has not, in t he Act, yet
conferred express power on the Drugs inspector, to arrest. How ever,
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
Section 22(1)(d) of the Act, which deals with the powers of the Inspector,
inter alia, enables the Inspector to exercise such other powers as may
be necessary for carrying out the purpose of Chapter IV or any Rules
made thereunder. The sanction, which is contemplated under Chapter
IV, is the criminal sanction by way of prosecuting a person for contravening
the provisions of Chapter IV of the Act. In other words, the Legislature
has given teeth to the law by providing for prosecuting offenders. The
Inspector is at the center stage. In every other aspect, as can be seen
from the Act, the implementation of its provisions is vitally dependent
upon the powers and functions assigned to the Inspector . The very
qualifications, which are provided in the Rules, as indispensable for being
appointed as an Inspector, represents a carefully chosen value judgment
by the Legislature to assign the implementation of the Act through the
competent hands of qualified persons. The Act is enacted to achieve the
highest public interest in as much as what is at stake is the health of the
members of the public, which again is recognized as one of the aspects
covered by the Fundamental Right protected under Article 21 of the
Constitution of India. Keeping the Police Officer out from the categories
of persons, who could prosecute offenders for offences under Chapter
IV of the Act, is also a carefully thought out ideal.
THE DECISION OF THIS COURT IN DIRECTORATE OF
ENFORCEMENT V. DEEPAK MAHAJAN AND ANOTHER 25
103. In Deepak Mahajan (supra) , the question arose in the context
of provisions of Section 35 of the Foreign Exchange Regulation A ct,
1973 (FERA) and Section 104 of the Customs Act, 1962, which expressly
conferred power of arrest on the Officers under the Acts. The question
which squarely arose was whether upon arrest being effecte d under
Section 35 of the FERA and Section 104 of the Customs Act, a remand
could be ordered under Section 167(2) of the CrPC. In the course of
discussion, the Court proceeded to hold that the CrPC gives power of
arrest not only to the Police Officer, but to a Magistrate and also under
certain circumstances or given situations to private persons. It went on
to hold that in every arrest there is custody but not vice-versa. It further
held as follows:
“54. The above deliberation leads to a derivation that to invoke
Section 167(1), it is not an indispensable pre-requisite condition
25 (1994) 3 SCC 440
1019
that in all circumstances, the arrest should have been effec ted
only by a police officer and none else and that ther e must
necessarily be records of entries of a case diary. Ther efore, it
necessarily follows that a mere production of an arrestee before
a competent Magistrate by an authorised officer or an offic er
empowered to arrest (notwithstanding the fact that he is not a
police officer in its stricto sensu) on a reasonable belief tha t the
arrestee “has been guilty of an offence punishable” under the
provisions of the special Act is sufficient for the Magi strate to
take that person into his custody on his being satisfied of the three
preliminary conditions, namely (1) the arresting officer is legally
competent to make the arrest; (2) that the particulars of the offence
or the accusation for which the person is arrested or other grounds
for such arrest do exist and are well-founded; and (3) that the
provisions of the special Act in regard to the arrest of the persons
and the production of the arrestee serve the purpose of Sect ion
167(1) of the Code.”
(Emphasis supplied)
104. Section 35(2) in FERA and Section 104(2) of the Customs
Act, provided that the person arrested was to be taken before a Magistrate
without unnecessary delay. As regards the power to detain the person
arrested under Section 167(2) of the CRPC, it was held as follows:
“102. From the foregoing discussion, it is clear that the word
‘accused’ or ‘accused person’ is used only in a generic sense in
Section 167(1) and (2) denoting the ‘person’ whose liberty is
actually restrained on his arrest by a competent authority on well-
founded information or formal accusation or indictment. Therefore,
the word ‘accused’ limited to the scope of Section 167(1) and (2)
— particularly in the light of Explanation to Section 273 of the
Code includes ‘any person arrested’. The inevitable consequence
that follows is that “any person is arrested” occurring in the first
limb of Section 167(1) of the Code takes within its ambit “every
person arrested” under Section 35 of FERA or Section 104 of the
Customs Act also as the case may be and the ‘person arr ested’
can be detained by the Magistrate in exercise of his power under
Section 167(2) of the Code. In other words, the ‘person arrested’
under FERA or Customs Act is assimilated with the characteristics
of an ‘accused’ within the range of Section 167(1) and as suc h
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
liable to be detained under Section 167(2) by a Magistrate when
produced before him.”
105. The Court went on to consider the impact of other laws in
regard to the scope of the expression “Police Officer”. It held as follows:
“111. Neither the Police Act, 1861 (Act V of 1861) nor any
other statute defines the expression ‘police officer’. Shortly stated,
the main duties of the police are the prevention, detention and
investigation of crimes. As the powers and duties of the S tate
have increased and are increasing manifold, various Acts dealing
with Customs, Excise, Forest, Taxes etc. have come to be passed
and consequently the prevention, detention and investigation of
offences as prescribed under those Acts have come to be entrusted
to officers with different nomenclatures appropriate to the subject
with reference to which they function. However, as stated supra,
though the powers of customs officers and enforcement officers
are not identical to those of police officers qua the investigation
under Chapter XII of the Code yet the officers under the FERA
and Customs Act are vested with certain powers similar to the
powers of police officers.”
106. Section 167(1) of the CrPC contemplates forwarding the
diary which was interpreted to be not the general diary and the special
diary under Section 167(2) of the CrPC. In regard to the enactments in
question, this Court held as follows:
“113. Though an authorised officer of Enforcement or Customs
is not undertaking an investigation as contemplated under Chapter
XII of the Code, yet those officers are enjoying some analogous
powers such as arrest, seizures, interrogation etc. Besides, a
statutory duty is enjoined on them to inform the arrestee of t he
grounds for such arrest as contemplated under Article 22(1) of
the Constitution and Section 50 of the Code. Therefore, they have
necessarily to make records of their statutory functions showing
the name of the informant, as well as the name of the person who
violated any other provision of the Code and who has been guilty
of an offence punishable under the Act, nature of information
received by them, time of the arrest, seizure of the contraband if
any and the statements recorded during the course of the detection
of the offence/offences.”
1021
107. It also found the following powers available under five Central
enactments:
Sl.
No.
Name of the Act Power to search
premises
Power to search suspected persons,
entering or leaving India
Power to search
persons
1 2 3 4 5
1. Foreign
Exchange
Regulation Act,
1973
Sec. 37 Sec. 34 Sec. 34
2. The Customs Act Sec. 105 Sec. 100 Sec. 101
3. The Gold
(Control) Act
(now repealed)
Sec. 58 — Sec. 60
4. The Prevention
of Food
Adulteration
Act.
Sec. 10(2) S. 6 to be r/w S. 18 or the Sea
Customs Act.
—
5. The Railway
Property
(Unlawful
Possession)
Act
Sec. 10 and Sec.
11
— —
Power to stop and
search conveyances
Power to seize
goods, documents
etc.
Power to
arrest.
Power to
examine
persons
Power to summon persons to
give evidence and produce
documents
6 7 8 9 10
Sec. 36 Sec. 38 Sec. 35 Sec. 39 Sec. 40
Sec. 106 Sec. 110 Sec. 104 Sec. 107 Sec. 108
Sec. 61 Sec. 66 Sec. 68 Sec. 64 Sec. 63
— Sec. 10 Sec.
10(B)
— —
— — Sec. 6 — Sec. 9
108. The Court further held as follows:
“116. It should not be lost sight of the fact that a police
officer making an investigation of an offence representi ng the
State files a report under Section 173 of the Code and bec omes
the complainant whereas the prosecuting agency under the special
Acts files a complaint as a complainant i.e. under Section 61(ii) in
the case of FERA and under Section 137 of the Customs Act. To
say differently, the police officer after consummatio n of the
investigation files a report under Section 173 of the Code upon
which the Magistrate may take cognizance of any offe nce
disclosed in the report under Section 190(1)(b) of th e Code
whereas the empowered or authorised officer of the special Acts
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
has to file only a complaint of facts constituting any offence under
the provisions of the Act on the receipt of which the Magistra te
may take cognizance of the said offence under Section 190(1)(a)
of the Code. After taking cognizance of the offence either upon a
police report or upon receiving a complaint of facts, the Magistrate
has to proceed with the case as per the procedure prescrib ed
under the Code or under the special procedure, if any, prescribed
under the special Acts. Therefore, the word ‘investigation’ cannot
be limited only to police investigation but on the other hand, the
said word is with wider connotation and flexible so as to include
the investigation carried on by any agency whether he be a police
officer or empowered or authorised officer or a person not being
a police officer under the direction of a Magistrate to ma ke an
investigation vested with the power of investigation.”
(Emphasis supplied)
109. In fact, as laid down in Deepak Mahajan (supra) , the power
of arrest can be conferred on persons other than a Police Offi cer. We
are, for the moment, excluding the position under the CrPC that even a
private person can arrest as provided in Section 43 of t he CrPC. The
Foreign Exchange Regulation Act, 1973 (hence repealed); the Customs
Act, 1962; the Gold (Control) Act, 1968 (repealed); the Prevent ion of
Food Adulteration Act, 1954 (hence repealed) and the Railway Property
(Unlawful Possession) Act, 1966, in Sections 35, 104, 68, 10B and Section
6, respectively, conferred power of arrest on the Officers under these
Acts. Therefore, if we interpret Section 22(1)(d) o f the Act, as
comprehending the power of arrest with the Drugs Inspector, then, his
competency to arrest, a requirement in law, as laid down again in Deepak
Mahajan (supra) (See paragraph-54), would stand satisfied. However,
the further question is, what is the procedure to be followe d by the
Inspector, and still finally, whether the Police Officer, under the CrPC,
will stand deprived of the power to arrest. The argument of the learned
Amicus Curiae appears to be that since a Police Officer, once he registers
an FIR under Section 154 of the CrPC, is duty-bound to carry the matter
to its logical conclusion, viz., to investigate the matter as provided in the
CrPC, and finally, file a Report under Section 173(2) of the Cr PC, to
persuade the Court to take cognizance in an appropriate case, all of
which powers are not available to a Police Officer in regard to offences
under Chapter IV of the Act, the interpretation that avoids such a futile
exercise, which also is unauthorized and illegal in law, should be adopted.
1023
110. We do agree with the learned Amicus Curie that the Police
Officer, for instance, cannot be approached by any p erson with a
complaint that a cognizable offence under Chapter IV of the Act has
been committed and he is not bound to register the FIR in terms of the
law which is being held down by this court in Lalita Kumari (supra).
This is for the reason that if he were to register an FIR, then, he would
have to pass on to the stage of Section 157 of the CrPC and, furthermore,
carry out investigation, as understood in law, for which neither i s he
deemed qualified or empowered by the Law Giver nor is he entitled to
file a Report under Section 173 of the CrPC.
POWER OF ARREST UNDER THE ACT
111. We are faced with a situation which projects a di scord
between two Statutes, viz., the CrPC and the Act, and the only silver-
lining appearing on the horizon, is the ambit of the power under Section
22(1)(d) of the Act. We may recapitulate the said provision, at this juncture.
It reads as follows:
“22. Powers of Inspectors. – (1) Subject to the provisions of
section 23 and of any rules made by the Central Governme nt in
this behalf, an Inspector may, within the local limits of the area for
which he is appointed,-
xxx xxx xxx xxx
(d) Exercise such other powers as may be necessary for carrying
out the purposes of this Chapter or any rules made there under.”
Apart from the same, there is no express power of arre st under
the Act on the Drugs Inspector.
SOME ENACTMENTS CONTAINING PROVISIONS
SIMILAR TO SECTION 22(1)(d) OF THE ACT
112. We may notice that the Seeds Act, 1966 (Section 14(1)(e),
the Insecticides Act, 1968 (Section 21(f)), the Kerala Fish Seed Act,
2014 (Section 19(1)(e), Uttarakhand Ground Water (Regulation and
Control of Development and Management) Act, 2016 [Section 13(1)(j)],
contain provisions similar to what is contained in Section 22(1)(d) of the
Act.
113. The Weekly Holidays Act, 1942 [Section 8(1)(c)], the Jammu
and Kashmir Factories Act, 1999 [Section 9(1)(c)], contained provisions
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
which confer power on the Authorities under the Act to exercis e such
other power as may be necessary for carrying outer purpose s of the
enactment. As far as the Shops and Commercial Establishme nt Act,
1958 [Section 19(1)(c)], after conferring the power to exercis e such
powers, as may be necessary for carrying out the Act, the La w Giver
carves out a limitation by way of a proviso that no one shall be required,
under the said Section, to answer any question or give any evi dence
tending to incriminate him. Such a proviso is also found in the Private
Medical Establishment Act, 2007 [vide Section 21(1)(b)] as also in the
Jammu and Kashmir Factories Act, 1999.
SPECIFIC STATUTES CONFERRING POWERS OF ARREST;
COGNIZABLE VERSUS NON-COGNIZABLE OFFENCE
114. It is, however, relevant to notice the provisio ns of the
enactments containing the power to arrest and referred to i n Deepak
Mahajan (supra). Section 104 of the Customs Act, 1962, at present,
reads as follows:
“104. Power to arrest. –(1) If an officer of customs empowered
in this behalf by general or special order of the 3 [Principal
Commissioner of Customs or Commissioner of Customs] has
reason to believe that any person in India or within the Indian
customs waters has committed an offence punishable under section
132 or section 133 or section 135 or section 135A or section 136,
he may arrest such person and shall, as soon as may be, inf orm
him of the grounds for such arrest.
(2) Every person arrested under sub-section (1) shall, withou t
unnecessary delay, be taken to a magistrate.
(3) Where an officer of customs has arrested any person under
sub-section (1), he shall, for the purpose of releasing such person
on bail or otherwise, have the same powers and be subject to the
same provisions as the officer-in-charge of a police-stat ion has
and is subject to under the 4 Code of Criminal Procedure, 1898 (5
of 1898).
(4) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), any offence relating to —
(a) prohibited goods; or
1025
(b) evasion or attempted evasion of duty exceeding fifty l akh
rupees, shall be cognizable.
(5) Save as otherwise provided in sub-section (4), all other offences
under the Act shall be non-cognizable.
(6) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973, (2 of 1974) an offence punishable under section
135 relating to —
(a) evasion or attempted evasion of duty exceeding fifty la kh
rupees; or
(b) prohibited goods notified under section 11 which are also
notified under sub-clause (C) of clause (i) of sub-secti on (1) of
section 135; or
(c) import or export of any goods which have not been declared
in accordance with the provisions of this Act and the market price
of which exceeds one crore rupees; or
(d) fraudulently availing of or attempt to avail of drawback or any
exemption from duty provided under this Act, if the amount of
drawback or exemption from duty exceeds fifty lakh rupees, shall
be non-bailable.
(7) Save as otherwise provided in sub-section (6), all other offences
under this Act shall be bailable. 26 "
115. Section 35 of the The Foreign Exchange Regulation Act
(FERA), 1973 read as follows (FERA came to be repeale d by The
Foreign Exchange Management Act (FEMA), 1999]:
“35. Power to arrest.—(1) If any officer of Enforce ment
authorised in this behalf by the Central Government, by general
26 Prior to 13.07.2006, when the present provision ca me 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 beco me more wide. Further, it is to be
noticed, that Sections 104(4) was substituted by Ac t 23 of 2012 w.e.f. 28.05.2012.
Sub-Section (4) before substitution read as follows :
“4.[Notwithstanding anything contained in Code of C riminal 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 offence s 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.
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
or special order, has reason to believe that any person in India or
within the Indian customs waters has been guilty of an offenc e
punishable under this Act, he may arrest such person and shall, as
soon as may be, inform him of the grounds for such arrest.
(2) Every person arrested under sub-section (1) shall, withou t
unnecessary delay, be taken to a magistrate.
(3) Where any officer of Enforcement has arrested any person
under sub-section (1), he shall, for the purpose of releasing such
person on bail or otherwise, have the same powers and be subject
to the same provisions as the officer-in-charge of a police station
has, and is subject to, under the 1[Code of Criminal Procedure,
1973 (2 of 1974)].”
116. Section 68 of the Gold (Control) Act, 1968 (which also stands
repealed in 1990), read as follows:
“68. Power to arrest.
(1) Any Gold Control Officer authorised by the Administrator in
this behalf may, if he has reasons to believe that any person has
contravened, or is contravening, or is about to contravene any
provision of this Act, arrest such person and shall as soon as
possible inform him of the grounds for such arrest and shall take
such arrested person to the nearest magistrate within a period of
twenty-four hours of such arrest excluding the time necessar y
for the journey from the place of arrest to the court of the magistrate
and no such person shall be detained in custody beyond the said
period without the authority of a magistrate.
(2) Any officer who has arrested any person under this sec tion
shall, for the purpose of releasing such person on bail or otherwise,
have the same powers and be subject to the same provisions as
the officer-in-charge of a police station has, and is subject to,
under the Code of Criminal Procedure, 1898 (5 of 1898).”
(Emphasis supplied)
117. Section 10(8) of the The Prevention of Food Adulteration
Act, 1954 (37 Of 1954), read as follows:
“10(8) Any food inspector may exercise the powers of a pol ice
officer under section 42 of the Code of Criminal Procedure, 1973
1027
(2 of 1974) for the purpose of ascertaining the true name and
residence of the person from whom a sample is taken or an article
of food is seized.”
It may be noticed that Section 42 of the Cr.P.C. confers power of
arrest on a Police Officer to arrest even in regard to a non-cognizable
offence in the circumstances mentioned therein without a warrant.
118. Finally, Section 6 of The Railway Property (Unl awful
Possession) Act, 1966, read as follows:
“6. Power to arrest without warrant.—Any superior officer
or member of the Force may, without an order from a Magistrate
and without a warrant, arrest any person who has been concerned
in an offence punishable under this Act or against whom a
reasonable suspicion exists of his having been so concerned.”
Here, it is relevant to notice that the persons empower ed are
members of the force, which is defined as being members of the force
and the word ‘force’ is defined as the Railway protection force constituted
under the Railway Protection Force Act, 1957. It is an armed force.
119. In the Foreign Exchange Management Act, 1999, there is no
express power of arrest, as such conferred. Instead, it is re levant to
notice Section 37 of the said enactment:
“37. Power of search, seizure, etc.—
(1) The Director of Enforcement and other officers of
Enforcement, not below the rank of an Assistant Director, shal l
take up for investigation the contravention referred to in section
13. —(1) The Director of Enforcement and other officers of
Enforcement, not below the rank of an Assistant Director, shal l
take up for investigation the contravention referred to in section
13.”
(2) Without prejudice to the provisions of sub-section (1), the
Central Government may also, by notification, authorise any officer
or class of officers in the Central Government, State Government
or the Reserve Bank, not below the rank of an Under Secr etary
to the Government of India to investigate any contraven tion
referred to in section 13.
(3) The officers referred to in sub-section (1) shall ex ercise the
like powers which are conferred on income-tax authorities under
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
the Income-tax Act, 1961 (43 of 1961) and shall exercise such
powers, subject to such limitations laid down under that Act.”
120. The provision for arrest is contained in the Second Schedule
to the Income-Tax Act as a mode of recovery of tax.
121. A perusal of Section 104(4) of the Customs Act, as it stood
when this Court decided Deepak Mahajan (supra), would show t hat
while an express power was conferred on the Customs Officer to arrest
under Section 104(1), it was considered to be non-cognizable offence.
Further, the power of arrest was confined only to an offence committed
under Section 135 of the Act. It is apposite to notice that und er the
CrPC, there is no power with the Police Officer to arrest in the case of
a non-cognizable offence except upon a Warrant or Order of a Magistrate.
122. In this regard, it may also be apposite to refer to the provisions
of the Central Excise Act, 1944. Section 13 confers the power to arrest.
It reads as follows:
“13. Power to arrest:- Any Central Excise Officer not below the
rank of Inspector of Central Excise may, with the prior approval
of the Principal Commissioner of Central Excise or Commissioner
of Central Excise, arrest any person whom he has reason to believe
to be liable to punishment under this Act or the rul es made
thereunder.”
123. However, Section 9A, as it stood prior to it being amended
from the year 2004 onwards, declared that the offences under Section 9
were to be deemed to be non-cognizable under the provisions of t he
Code of Criminal Procedure. In Sunil Gupta v. Union of India 27 , the
Division Bench of the Punjab and Haryana High Court had to answer
the question as to whether the power of arrest, under Section 13 of the
Act, could be exercised without a warrant, in view of the fact that under
Section 9A, the offence was declared as non-cognizable. The Court
took the view that Section 13 embodied a substantive power. It held,
inter alia , as follows:
“21. In our view, Section 13 embodies a substantive power.
It confers the power to arrest. The procedural safegua rds have
been protected by Section 18. This provision merely regulates the
exercise of power under Section 13. It only provides that the
27 2000(118) ELT 8 P&H
1029
searches and arrests under the Central Excise Act ”shall be carried
out in accordance with the provisions of the Code of Criminal
Procedure .....” In other words, an officer of the Central Excise
shall make the arrest in the manner laid down in Section 46 of the
Code of Criminal Procedure. He “shall actually touch or confine
the body of the person to be arrested.....” In case of resis tance,
the officer of the Central Excise “may use all means necessary to
effect the arrest.” The persons arrested “shall not be subjected to
more restraint than is necessary to prevent his escape.” Similarly,
a search shall be carried out in accordance with the procedur e
laid down in Section 100. If the person of a lady has to be searched,
it shall be done “by another woman with strict regard to decency.”
Two or more independent and respectable inhabitants of the locality
shall be called upon to be present. The search shall be made in
their presence and “a list of things seized in the course of such
search ..... shall be prepared ......” In a nut shell, the procedura l
protection contained in the Code of Criminal Procedure has been
guaranteed even in case of arrests and searches under the Central
Excise Act, 1944. No more.”
124. A Single Judge of the High Court of Gujarat, also posed the
following question as the one which it had to answer in the case reported
in Bhavin Impex Pvt. Ltd. v. State of Gujarat 28 , as follows:
“1. The key question that arises for consideration in this writ petition
is as to whether the authorities under the Central Excise Ac t,
1944 (hereinafter referred to as ‘the Act’) have the power to
arrest a person under Section 13 of the Act without a warrant and
without filing an FIR or lodging a complaint before a Cour t of
competent jurisdiction.”
125. The Court purported to follow the Punjab and Haryana High
Court in Sunil Gupta (supra), which we have referred and held, inter alia,
as follows:
“This Court is in agreement with the view taken by the Punjab
and Haryana High Court, viz, a Central Excise Officer, (satisfying
the conditions laid down under Section 13) is not debarred from
arresting a person without a warrant when he has reason to believe
that the person is liable to punishment under the Act or the rules
28 2010(260) ELT 526 (Gujarat)
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
made thereunder. Section 13 is not curtailed by Section 18 and in
fact Section 18 is merely procedural.”
126. We must, however, notice the judgment of this Court reported
in Om Parkash and Another v. Union of India and Another 29 , a Judgment,
which dealt with the Central Excise Act, 1944 and also the C ustoms
Act, 1962. The question, however, which arose was, whether under the
said enactments, as the offences were non-cognizable, were they bailable
as well? Section 9A, as it was considered by this Court, read as follows:
“9A. Certain offences to be non-cognizable.-(1) Notwithstanding
anything contained in the Code of Criminal Procedure, 1898 (5 of
1898), offences under section 9 shall be deemed to be non-
cognizable within the meaning of that Code.
(2) Any offence under this Chapter may, either before or after
the institution of prosecution, be compounded by the Chief
Commissioner of Central Excise on payment, by the pe rson
accused of the offence to the Central Government, of such
compounding amount and in such manner of compounding, as may
be prescribed.
Provided that nothing contained in this sub-section shall apply to -
(a) a person who has been allowed to compound once in respect
of any of the offences under the provisions of clause (a), (b),
(bb), (bbb), (bbbb) or (c) of sub-section (1) of Section 9;
(b) a person who has been accused of committing an offence
under this Act which is also an offence under the Narcotic Drugs
and Psychotropic Substances Act, 1985 (61 of 1985);
(c) a person who has been allowed to compound once in respect
of any offence under this Chapter for goods of value exceeding
rupees one crore;
(d) a person who has been convicted by the court under this Act
on or after the 30 th day of December, 2005.”
127. The Court did make reference to both Sunil Gupta (supra)
and Bhavin Impex Pvt. Ltd. (supra). This Court went on to find, on an
examination of the provisions, that being non-cognizable offences under
the Central Excise Act, and taking note of the fact that as a general rule,
29 (2011)14 SCC 1
1031
though, with exceptions under the First Schedule to the CrPC, non-
cognizable offences were treated as bailable, and also, taki ng note of
Section 20 of the Excise Act, which appeared to show that the offences
were bailable that they were bailable. What is, however, noteworthy for
the purpose of deciding the case before us, is the stateme nt of the law
as contained in paragraph-41, which reads as follows:
“41. In our view, the definition of “non-cognizable off ence”
in Section 2(l) of the Code makes it clear that a non-cogniza ble
offence is an offence for which a police officer has no authority
to arrest without warrant. As we have also noticed hereinbefore,
the expression “cognizable offence” in Section 2(c) of the Code
means an offence for which a police officer may, in accordance
with the First Schedule or under any other law for the time being
in force, arrest without warrant. In other words, on a construction
of the definitions of the different expressions used in the Code and
also in connected enactments in respect of a non-cogn izable
offence, a police officer, and, in the instant case an excise officer,
will have no authority to make an arrest without obtaining a warrant
for the said purpose. The same provision is contained in Section
41 of the Code which specifies when a police officer may arrest
without order from a Magistrate or without warrant.”
(Emphasis supplied)
128. The Court applied the same principles in regard to the cases
which it decided under the Customs Act. We may notice that Section 18
of the Central Excise Act, 1944 provides for the manner of making an
arrest. It reads as follows:
“18. Searches and arrests how to be made.- All searches m ade
under this Act or any rules made thereunder and all arrests made
under this Act shall be carried out in accordance with the provisions
of the Code of Criminal Procedure, 1898(5 of 1898), relating
respectively to searches and arrests made under that Code.”
129. Equally of interest, are the provisions contained in Sections
19, 20 and 21:
“19. Disposal of persons arrested.- Every person arrested under
this Act shall be forwarded without delay to the nearest Ce ntral
Excise Officer empowered to send persons so arreste d to a
Magistrate, or, if there is no such Central Excise Officer within a
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
reasonable distance, to the officer in charge of the nearest police
station.
20. Procedure to be followed by officer in charge of police station.-
The officer in charge of a police station to whom any person is
forwarded under Section 19 shall either admit him to bail to appear
before the Magistrate having jurisdiction, or in default of bai l
forward him in custody to such Magistrate.
21. Inquiry how to be made by Central Excise Officers agai nst
arrested persons forwarded to them under Section 19. – (1) When
any person is forwarded under Section 19 to a Central Excise
Officer empowered to send persons so arrested to a Magis trate,
the Central Excise Officer shall proceed to inquire into the charge
against him.
(2) For this purpose the Central Excise Officer may exercise the
same powers and shall be subject to the same provisions as the
officer in charge of a police station may exercise and is subject to
under the Code of Criminal Procedure, 1898 (5 of 1898), when
investigating a cognizable case:
Provided that-
(a) If the Central Excise Officer is of opinion that there is sufficient
evidence or reasonable ground of suspicion against t he
accused person, he shall either admit him to bail to appea r
before a Magistrate having jurisdiction in the case, or forward
him in custody to such Magistrate;
(b) If it appears to the Central Excise Officer that ther e is not
sufficient evidence or reasonable ground of suspicion against
the accused person, he shall release the accused person on
his executing a bond, with or without sureties as the Central
Excise Officer may direct, to appear, if and when so required,
before the Magistrate having jurisdiction, and shall make a
full report of all the particulars of the case to his of ficial
superior.”
130. On a perusal of the statement of law contained in paragraph-
41, we find that this Court has found that as the provisions under the
enactments in question declared the offences to be non-cognizable, the
officer exercising the power of arrest, could not arrest, except after
1033
obtaining a warrant for the said purpose. That they may not arrest without
obtaining a warrant in respect of the non-cognizable offences, being the
view taken by this Court, cannot be squared with the view take n by
Punjab and Haryana High Court and Gujarat High Court, respectively,
in Sunil Gupta (supra) and also Bhavin Impex Pvt. Ltd. (supra), which
took the view in effecting arrest under the Central Excise Act, no warrant
was required. It is apparently consequent upon the same that Legislature
stepped in with amendments. Section 9A came to be amended and i t
reads as follows after the amendment:
“Section 9A. Certain offences to be non-cognizable.-
(1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973(2 of 1974), offences under section 9, except the
offences referred to in sub-section (1A), shall be non-cognizable
within the meaning of that Code.
(2) Any offence under this Chapter may, either before or after
the institution of prosecution, be compounded by the Principal Chief
Commissioner of Central Excise or Chief Commissioner of Central
Excise on payment, by the person accused of the offence to t he
Central Government, of such compounding amount and in such
manner of compounding as may be prescribed:
Provided that nothing contained in this sub -section shall apply to
—
(a) a person who has been allowed to compound once in
respect of any of the offences under the provisions of cla use
(a),(b),(bb),(bbb),(bbbb) or (c) of sub -section (1) of section 9;
(b) a person who has been accused of committing an offence
under this Act which is also an offence under the Narcotic Drugs
and Psychotropic Substance Act,1985 (61 of 1985);
(c) a person who has been allowed to compound once in
respect of any of the offence under this Chapter for goods of
value exceeding rupees one crore;
(d) a person who has been convicted by the court under
this Act on or after the 30th day of December, 2005.”
(Emphasis supplied)
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
131. The result would appear to be that acknowledging the effect
of making the offences being non-cognizable to be to limit the power of
the authorities under the Act for effecting arrest under the Act, to require
a warrant, certain offences were declared to be cognizable as noticed in
Section 9A, as amended after the Judgment in Om Parkash (supra ).
The resultant position after the amendment is, it became ope n to the
Officers to effect the arrest in regard to a cognizable offence without
obtaining a warrant.
132. In regard to the Customs Act, 1962 in Section 104, under the
present avatar, two changes have been brought about. Firstly, the power
to arrest is available in respect of offences under Sections 132, 133, 135,
135A and 136. The offences are divided into two categories. U nder
Section 104(4), the offences which fall within its ambit, are tr eated as
cognizable. The other offences are treated as non-cognizab le under
Section 104(5). For instance, if a person is involved in an offence relating
to evasion or attempted evasion of duty exceeding 50 lakhs rupees (w.e.f.
01.08.2019), while the offence is cognizable, the power of arre st is
conferred on the Officers under Section 104(1). The power to arrest is
conferred and the only condition to be fulfilled is that the Officer has
reason to believe that the person has committed offence conce rned.
The position is the same in respect of offence relating to prohibited goods.
133. We have embarked upon referring to the provisions relating
to arrest under the Excise Act and Customs Act and the decision of this
Court in Om Prakash(supra) in taking the view as it did in paragraph-41,
in order to appreciate the contention that, after the amendment to Section
36AC, the offences have been declared cognizable. If we pr oceed on
the basis that the power of arrest can be traced from Section 22(1)(d) of
the Act, then, after the amendment in Section 36AC, by which, the
offences falling under Chapter IV of the Act, which are de clared as
cognizable and non-bailable, the decks are cleared for ef fecting arrest
without a warrant by the Inspector.
134. However, the question would arise whether there exists the
power of arrest with the Drugs Inspector. We will, on the one hand,
array possible objections to the conferment of such powers. The power
to arrest is a drastic power. It involves encroachment on personal liberty.
The Drugs Inspector is not a Police Officer under the CrPC. The
Legislature was aware of the power of the Police Offic er to arrest
when he embarks on investigation of a cognizable case, as is clear from
1035
Section 157 of the CrPC. There is another indication in the Ac t which
may reveal the mind of the Legislature that the power of arrest was not
intended to be conferred on the Drugs Inspector. Section 34AA, reads
as follows:
“34AA.- Penalty for vexatious search or seizure.—Any Inspector
exercising powers under this Act or the rules made there under,
who,—
(a) without reasonable ground of suspicion searches any plac e,
vehicle, vessel or other conveyance; or
(b) vexatiously and unnecessarily searches any person; or
(c) vexatiously and unnecessarily seizes any drug or cosmetic, or
any substance or article, or any record, register, document or other
material object; or
(d) commits, as such Inspector, any other act, to the injury of any
person without having reason to believe that such act is required
for the execution of his duty, shall be punishable with fine which
may extend to one thousand rupees.”
There is no reference to arrest forming the subject m atter of
penalty.
135. In contrast, we must notice Section 22 of the Central Excise
Act, 1944, reads as follows:
“22. Vexatious search, seizure, etc., by Central Excise Officer.—
Any Central Excise or other officer exercising powers under this
Act or under the rules made thereunder who—
(a) without reasonable ground of suspicion searches or causes to
be searched any house, boat or place;
(b) vexatiously and unnecessarily detains, searches or arrests any
person;
(c) vexatiously and unnecessarily seizes the movable property of
any person, on pretence of seizing or searching for any ar ticle
liable to confiscation under this Act;
(d) commits, as such officer, any other act to the injury of a ny
person, without having reason to believe that such act is re-quired
for the execution of his duty, shall, for every such offence, be
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
punishable with fine which may extend to two thousand rupees.
Any person wilfully and maliciously giving false information and
so causing an arrest or a search to be made under this Act shall
be punishable with fine which may extend to two thousand rupees
or with imprisonment for a term which may extend to two years
or with both.”
(Emphasis supplied)
136. Still further, as we have noticed in the Central Excis e Act,
1944, apart from the fact that the power of arrest is expressly conferred,
the manner, in which the power is to be exercised, is specifically indicated,
as we have noticed on a perusal of Sections 19 and 20. Section 68 of the
Gold Control Act, 1968 has expressly conferred power of arrest, the
conditions in which the power could be exercised and further procedure
to be followed.
137. We have noticed that the Inspector under the Act has b een
conferred with a vast and formidable array of powers, and in an enactment
like the Act, the taking of samples, the Report given by the Competent
Officer in regard to the same and the right reserved to the concerned
person to seek a further Report from the Central Laboratory, go a long
way in the successful culmination of a complaint under Section 32 of the
Act. The Inspector is, undoubtedly, endowed with the power of inspection,
taking samples of any drug or cosmetic, searching any person, searching
any place, searching any vehicle, examining records, registers, documents
and other material objects and seizing the same, requiring any person to
produce any record, register or other document. These are powers which
are expressly conferred on the Inspector. Though, a complaint could be
filed by other categories of complainants in Section 32 of the Act, the
Inspector is pivot around which the Act moves. Rule 51(4) makes it a
duty on the part of the Drugs Inspector to investigate any complaint in
writing which may be made to him. It is also his duty under Rule 51(5) to
institute prosecution in respect of breaches of the Act and the Rules
thereunder. He is also duty-bound under Rule 51(7) to make inquir ies
and inspections as may be necessary to detect sale of drugs in
contravention of the Act. Under Rule 52, in regard to manufacture of
drugs, it is again the duty to institute prosecution for breache s besides
making inspections of all premises. This is having re gard to both his
qualifications and also the powers conferred on him. Section 23 of the
Act, undoubtedly, is the procedure to be followed by the Inspector. We
1037
are, therefore, to ascertain the meaning of the expression “other powers”,
which are essential for carrying out the object of Chapter IV and the
Rules made thereunder. The Legislature has not given any hint, intending
to limit the scope of the residuary powers. No doubt, the Act is a pre-
Independence Act. If we interpret that it is a Drugs Ins pector, acting
under Section 22 of the Act, who alone can investigate offences falling
under Chapter IV of the Act and there is no power for the Police Officer
under the CrPC to investigate under the Act or to file a Report under
Section 173 of the CrPC, which indeed is indisputable, then, a power of
arrest, which is necessary for the purpose of investigating and prosecution
of the offences falling within Chapter IV of the Act, must be conceded
to the Drugs Inspector. The legislative intention in confe rring various
powers, as we have noticed in the foregoing provisions of Section 22 of
the Act and declaring that all other powers, which are necessary for the
purpose of the Act, are to inhere in the Drugs Inspector, rea ssures us
that we would be correctly ascertaining the legislative in tention to be
that on a Drug Inspector taking-up a matter falling under Chapter IV of
the Act, he is invested with the power to arrest.
138. There is another aspect which may have an important bearing
on the issue. Under Section 36AC of the Act, the offences as mentioned
therein which include some of the offences under Chapter IV of the Act
are declared cognizable and non-bailable. The provi sion imposes
restriction on the arrested person being released on bail or on his own
bond unless the public prosecutor has been given an opportunity to oppose
the application and when the public prosecutor opposes the application,
the Court is to be satisfied that there are reasonable grounds for believing
that the accused person is not guilty of such offence and that he is not
likely to commit an offence. This limitation, is apart from the limitations
in the CrPC, inter alia. Now, the Police Officer acting under the CrPC
even proceeding for a moment on the basis that it is sufficie nt that a
mere memorandum of arrest as required under the CrPC is p repared
and further there is compliance with other provisions of the CrPC also,
would it suffice is the question that would arise in the following manner?
We have noted from the provisions of the Act and the Rules that it is the
Drugs Inspector who is empowered and duty bound to investigate the
complaint about violations of acts and rules. He is the person charged
with a duty of prosecuting the offenders. If the police officer is merely
to be granted a power of arrest and without having an y power of
investigation then how would it be possible for the police officer to make
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
any investigation under the act and if no investigation is possible, how
would the Police Officer be in a position to be of any assistance to the
Public Prosecutor and, therefore, to the Court in the dispos al of an
application for bail? In other words, it would be based on the records of
investigation and material collected by the investigating o fficer that a
Court in a case would decide as to whether bail is to be granted or not.
How would the police officer seek a remand for carrying out investigation
which he cannot do? If the Act and the Rules do not c ontemplate
investigation by a Police Officer, then, conferring the power of arrest on
the Police Officer, would, in fact, frustrate the working of the Act. On
the other hand, if it is the Drugs Inspector who can arrest, the following
consequences would follow:
a. He has the requisite technical qualifications to p roperly
investigate and prosecute the offender.
b. He would be able to make adequate entries in whate ver
document he has to maintain as a part of investigation and it
would facilitate a proper and fair consideration of an application
for bail within the meaning of Section 36AC of the Act an d
also facilitate a request for remand under Section 167 of the
Cr.P.C.
139. Declaring the power to arrest with the Inspector, is not to be
understood as proclaiming that the Inspector is bound to arrest any person.
The provisions of the CrPC, relating to arrest, would necessarily have to
be followed by the Drugs Inspector. In fact, he is obliged to bear in mind
the law, as declared by this Court in D.K. Basu (supra), and the peril of
defying the same, would be to invite consequences, inter ali a, as are
provided therein. As far as the arrest, not being mention ed in Section
34AA, as forming a ground for visiting the delinquent Officer with penalty,
it may be noticed that there is a residuary power in Section 34AA and it
would cover any act. We notice that Section 34AA(d) provide s that if
any Inspector, exercising powers under the Act or the Rules made
thereunder, commits, as such Inspector, any other act, to the in jury of
any person without having reason to believe that such act is required for
the execution of his duty, he shall be punishable with fine whi ch may
extend to one thousand rupees.
140. Regarding the power for seeking and ordering a remand
under Section 167, we would apply the principles laid down by this Court
in Deepak Mahajan (supra) and the same principles would apply.
1039
141. This process of interpretation would produce the result of
harmonizing two seemingly irreconcilable commands from the Law-Giver.
This interpretation commends itself to us for the r eason that the
investigation into offences, under Chapter IV of the Act, would commence,
be carried out and would culminate in, in the safe hands of the competent
and qualified Statutory Authority, as designated by law. It w ould also
avoid an outside agency like a Police Officer, being obliged to register
an FIR, for the reason that where arrest has to be made, a FIR is to be
registered, and, when the registering of the FIR carr ies with it an
unattainable object of preferring a Final Report under Section 173 of the
CrPC, as far as the Police Officer is concerned. We make it clear that
if a Police Officer is approached with regard to a compla int regarding
commission of an offence falling under Chapter IV of the Act, he is not
to register an FIR unless it be that a cognizable offence , other than an
offence falling under Chapter IV of the Act, is also made out. He must
makeover the complaint to the competent Drug Inspector so that action
in according with law is immediately taken where only offences under
Chapter IV are made out.
142. As far as the arrest contemplated under Section 41 of the
CrPC is concerned, in case a cognizable offence, falling under Chapter
IV of the Act, is committed, either in the presence of the Drugs Inspector,
or in respect of which offence, a Police Officer would have power to
arrest, as provided therein, viz., covered by the situations contemplated
under Section 41(ba), the Drugs Inspector would be entitled to effect
the arrest. We are arriving at this conclusion on the basis that since the
procedure under the CrPC is to be read as applicable, except to the
extent that a different procedure is to be provided under the Act, and
since there is no procedure or power otherwise provided in t he Act in
regard to arrest, the powers and procedure available to a Police Officer,
with the limitations on the said power, as laid down in D.K. Basu (supra),
as also as contained in the CrPC, would be applicable.
143. By way of following Deepak Mahajan (supra), we hold that
the Drugs Inspector, under the Act, is invested with certain powers similar
to a Police Officer. Still further, we would hold t hat the word
“investigation” cannot be limited only to a Police investigation, as has
been noted in Deepak Mahajan (supra). Thirdly, we find that the power
to arrest a person must indeed flow from the provisions of a S tatute.
The statutory provision under the Act is Section 22(1)(d). The arrested
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
person, under the Act, would be an accused person to be detained under
Section 167(2) of the CrPC. No doubt, the Police Officer i s bound to
provide assistance to the Inspector in case of need to effectuate the
arrest where there is resistance or likelihood of resistance. No doubt, in
regard to the arrest in relation to offences falling under Cha pter IV of
the Act, which do not fall under Section 36AC, the power of ar rest
would depend upon the provision in the Schedule to the CrPC.
144. We again reiterate that the existence of the power t o arrest
with the Drugs Inspector is not to be understood as opening the doors to
making illegal, unauthorized or unnecessary arrest. Every power comes
with responsibility. In view of the impact of an arrest, the highest care
must be taken to exercise the same strictly as per the law. The power of
arrest must be exercised, recognizing the source of his authority, to be
Section 22(1)(d) of the Act, which is for carrying out the purpose of
Chapter IV of the Act or any Rules made thereunder.
145. Section 33P of the Act, reads as follows:
“33P. Power to give directions.—The Central Government may
give such directions to any State Government as may appear t o
the Central Government to be necessary for carrying into execution
in the State any of the provisions of this Act or of any rule or
order made thereunder.”
We notice that the Central Government is conferred with powers
to give directions to the State Government for the purpose of carrying
into execution, in the State, any of the provisions of the Act or any Rule
or Order made thereunder. It is for the Central Government to consider
the question whether it can, under the said provision, issue directions in
regard to the power of arrest, which we have found, subject to what we
have stated in this Judgment.
146. Further, Section 58 of the CrPC provides that the Office rs
In-charge of Police Stations are to report cases of all p ersons arrested
without warrant as provided therein. We make it clear that the Drugs
Inspector must, apart from other relevant provisions of the CrPC, comply
with the requirement of reporting. In view of the need to safeguard the
interest of persons, who may be proceeded against by the Drugs Inspector,
we also hold and direct that the Drugs Inspector will immediately, after
arrest, make a report of the arrest to his superior Offi cer.
1041
147. It has been brought to our notice that FIRs have been filed in
regard to offences under Chapter IV of the Act. In the view we have
taken, no further investigation can be done by the Polic e Officer.
However, it is in the interest of justice that the FIRs a re made over by
the Police Officers to the concerned Drugs Inspector at the earliest. We
are persuaded to issue such directions in the exercise of our powers
under Article 142 of the Constitution of India.
148. It would appear that on an understanding of the provisions,
arrests would have been effected by Police Officers in re gard to the
cognizable offences under Chapter IV of the Act. Having regard to the
fact that we are resolving this controversy on a conspectus of the various
provisions of the Act and the CrPC, we are inclined to direc t that this
Judgment, holding that Police Officers do not have power to ar rest in
regard to cognizable offences under Chapter IV of the Act, is to operate
from the date of this Judgement.
149. Before we proceed to the operative portion of our Judgment,
we must express the hope that the vexed issues which we have resolved
through this Judgment, in regard to the power of arrest, may engage the
competent Legislative Body.
THE CONCLUSIONS/DIRECTIONS
150. Thus, we may cull out our conclusions/directions as follows:
I. In regard to cognizable offences under Chapter IV of the
Act, in view of Section 32 of the Act and also the scheme
of the CrPC, the Police Officer cannot prosecute offenders
in regard to such offences. Only the persons mentioned in
Section 32 are entitled to do the same.
II. There is no bar to the Police Officer, however, to investigate
and prosecute the person where he has committed an
offence, as stated under Section 32(3) of the Act, i.e., if he
has committed any cognizable offence under any other law.
III. Having regard to the scheme of the CrPC and also the
mandate of Section 32 of the Act and on a conspectus of
powers which are available with the Drugs Inspector under
the Act and also his duties, a Police Officer cannot register
a FIR under Section 154 of the CrPC, in regard to cognizable
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS
[K. M. JOSEPH, J.]
offences under Chapter IV of the Act and he cannot
investigate such offences under the provisions of the CrPC.
IV. Having regard to the provisions of Section 22(1)(d) of the
Act, we hold that an arrest can be made by the Drugs
Inspector in regard to cognizable offences falling under
Chapter IV of the Act without any warrant and otherwise
treating it as a cognizable offence. He is, however, bound
by the law as laid down in D.K. Basu (supra) and to follow
the provisions of CrPC.
V. It would appear that on the understanding that the Police
Officer can register a FIR, there are many cases where
FIRs have been registered in regard to cognizable offences
falling under Chapter IV of the Act. We find substance in
the stand taken by learned Amicus Curiae and direct that
they should be made over to the Drugs Inspectors, if not
already made over, and it is for the Drugs Inspector to take
action on the same in accordance with the law. We must
record that we are resorting to our power under Article
142 of the Constitution of India in this regard.
VI. Further, we would be inclined to believe that in a number of
cases on the understanding of the law relating to the power
of arrest as, in fact, evidenced by the facts of the pres ent
case, police officers would have made arrests in regard to
offences under Chapter IV of the Act. Therefore, in regard
to the power of arrest, we make it clear that our decis ion
that Police Officers do not have power to arrest in respect
of cognizable offences under Chapter IV of the Act, will
operate with effect from the date of this Judgment.
VII. We further direct that the Drugs Inspectors, who carry out
the arrest, must not only report the arrests, as provided in
Section 58 of the CrPC, but also immediately report the
arrests to their superior Officers.
151. In view of our conclusions/directions and subject to the same,
we would, on the facts, uphold the impugned Judgment and dismiss the
Appeal. We record our appreciation for the enlightening submissions of
the learned Amicus Curiae Shri S. Nagamuthu.
Divya Pandey Appeal dismissed.