TaxTMI 
TaxTMI 
2020 (8) TMI 827
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....(Food Protection and Drugs) directed enquiry and the Drug Inspector, Mau, U.P. along with two others conducted an inspection at the Sharda Narayan Clinic and Pharmacy and the Respondent No. 1 was directed to show papers in respect of medicines stored in the shop. The first Respondent according to the Appellant stated that he did not have any license though he was the owner of the medical store and that he had stored the medicines without proper license. Thereby, he has committed offence Under Section 18 and 27 of the Act. On the basis of recovery made, an FIR came to be lodged on 22.6.2018 purporting to be Under Section 18(a)(i) and Section 27 of the Act. The complainant it may be noted is none other than the Drugs Inspector. The Respondent filed a writ petition for quashing the FIR and not to arrest him. The Appellant, viz., the Union of India through the Secretary, Ministry of Health and Family Welfare was not made a party to the writ petition. The Respondents in the writ petition were the Superintendent of Police, the Station House Officer and the Drugs Inspector, Mau in his personal capacity. This is apart from the State of U.P. which was made the first Respondent. It is pointe....
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....y lodged an F.I.R. when there is specific provision for prosecuting the Accused by lodging a complaint. The explanation and action taken against him, shall be forwarded to the Court by the Competent Authority within 8 weeks from today through Registrar General of this Court who shall place the same before us for perusal in our chambers as soon as the same is received by Registrar General. We further grant liberty to the Respondent No. 4 to initiate criminal proceedings in accordance with the procedure laid down under this Act forthwith against the Petitioner. 24. Registrar General to sent a certified copy of this order to Principal Secretary, Food Safety and Drug Administration, Government of U.P. for his necessary information and follow up action. It is further directed that Principal Secretary, Food Safety and Drug Administration, Government of U.P. shall notify such direction to all the D.Ms. of the State so that no such error recurs. 5. We heard Ms. Pinky Anand, learned Additional Solicitor General appearing on behalf of the Appellant. We also heard Shri S. Nagamuthu, learned Senior Counsel, whom we appointed as Amicus Curiae. SUBMISSIONS OF THE Appellant 6. M....
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....on 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 36AC 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 Code of Criminal Procedure. The fact that such a procedure was not contemplated by the Legislature is clear from the fact that under the pre amended regime, three out of four categories mentioned in the present amended avtaar were already present and the amendment added only one more to the categories of persons who alone could institute the prosecution. In fact, as regards Section 36AC declaring certain offences under the Act to be cognizable, he drew our attention to the second part of the first Schedule of the Code of Criminal Procedure He contended inter alia that....
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....Inspector appointed by the Central Government or a State Government Under Section 33G; and (ii) in relation to any other drug or cosmetic, an Inspector appointed by the Central Government or a State Government Under Section 21; 11. Chapter III contains provisions which provide for deeming definitions of misbranded drugs, adulterated drugs, spurious drugs, misbranded cosmetics and spurious cosmetics for the purpose of Chapter III. Section 13 provides for offences arising out of imports. Chapter IV falls under the chapter heading "Manufacture, Sale and Distribution of Drugs and Cosmetics". Interestingly, misbranded drugs, adulterated drugs, spurious drugs, misbranded cosmetics and spurious cosmetics, adulterated cosmetics are defined by provisions found in Chapter IV for the purpose of Chapter IV. Section 18 contemplates that from such date as may be fixed by the State Government, manufacture for sale or distribution, or to sell, or stock or exhibit or offer for sale or distribution of drugs misbranded, adulterated, spurious drugs and cosmetics inter alia are prohibited. Section 21 reads as follows: 21. Inspectors.-- (1) The Central Government or a State....
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....(51) deals with duties of Inspectors in regard to sale. It reads as follows: 51. Duties of Inspectors of premises licensed for sale.--Subject to the instructions of the controlling authority, it shall be the duty of an Inspector authorized to inspect premises licensed for the sale of drugs-- (1) to inspect not less than once a year all establishments licensed for the sale of drugs within the area assigned to him; (2) to satisfy himself that the conditions of the licences are being observed; (3) to procure and send for test or analysis, if necessary, imported packages which he has reason to suspect contain drugs being sold or stocked or exhibited for sale in contravention of the provisions of the Act or Rules thereunder; (4) to investigate any complaint in writing which may be made to him; (5) to institute prosecutions in respect of breaches of the Act and Rules thereunder; (6) to maintain a record of all inspections made and action taken by him in the performance of his duties, including the taking of samples and the seizure of stocks, and to submit copies of such record to the controlling authority; (7) to mak....
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....r exhibited or offered for sale, or distributed; (b) take samples of any drug or cosmetic,-- (i) which is being manufactured or being sold or is stocked or exhibited or offered for sale, or is being distributed; (ii) from any person who is in the course of conveying, delivering or preparing to deliver such drug or cosmetic to a purchaser or a consignee; (c) at all reasonable times, with such assistance, if any, as he considers necessary,-- (i) search any person, who, he has reason to believe, has secreted about his person, any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed; or (ii) enter and search any place in which he has reason to believe that an offence under this Chapter has been, or is being, committed; or (iii) stop and search any vehicle, vessel or other conveyance which, he has reason to believe, is being used for carrying any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed, and order in writing the person in possession of the drug or cosmetic in respect of which the offence has been, or is being, c....
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....e tendering of fair price when a sample is taken of a drug or cosmetic under the Chapter. There are various other provisions regarding the procedure to be followed by the Inspector which includes seizure of record/register, documents or other material objects and the need to notify a judicial Magistrate [See Section 23(6)]. 14. Section 27 provides for penalty for manufacture, sale etc. of drug in contravention of Chapter IV. It reads as follows: 27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter.-Whoever, himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or distributes,- (a) any drug deemed to be adulterated Under Section 17A or spurious Under Section 17B and which when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Section 320 of the Indian Penal Code (45 of 1860), solely on account of such drug being adulterated or spurious or not of standard quality, as....
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....l 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 [less than seven years but not less than three years and of fine of less than one lakh rupees]; (d) any drug, other than a drug referred to in Clause (a) or Clause (b) or Clause (c), in contravention of any other provision of this Chapter or any Rule made thereunder, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine which shall not be less than twenty thousand rupees: Provided that the Court may for any adequate and spe....
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....udicial Magistrate of First Class may pass a sentence in excess of the powers under the Code of Criminal Procedure Section 36A provides that certain offences are to be tried summarily. 18. Section 36AB provides for Special Courts. It declares that the Central Government or the State Government in consultation with the Chief Justice of the High Court, shall, for certain offences designate one or more Court of Sessions as a Special Court or Special Courts. Sub-section (2) provides that the Special Court may try an offence other than the offences covered by Sub-section (1) which may be charged against the Accused at the same trial. Section 36AC around which much arguments were addressed reads as follows: 36AC. Offences to be cognizable and non-bailable in certain cases. -- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- (a) every offence, relating to adulterated or spurious drug and punishable under Clauses (a) and (c) of Sub-section (1) of Section 13, Clause (a) of Sub-section (2) of Section 13, Sub-section (3) of Section 22, Clauses (a) and (c) of Section 27, Section 28, Section 28A, Section 28B and Sub-sect....
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....e 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 Public Prosecutor or a Special Public Prosecutor under this Section unless he has been in practice as an advocate for not less than seven years, under the Union or a State, requiring special knowledge of law. (3) Every person appointed as a Public Prosecutor or a Special Public Prosecutor under this Section shall be deemed to be a Public Prosecutor within the meaning of Clause (u) of Section 2 of the Code of Criminal Procedure, 1973 (2 of 1974) and the provisions of that Code shall have effect accordingly. RELEVANT PROVISIONS OF THE CODE OF CRIMINAL PROCEDURE 19. Section 2(a) defines "bailable offence" as offence shown as such in the First Schedule, or which is made bailable under any other law for the time being in force. "Non-bailable offence" means any other offence. 'Cognizable offence' is defined in Section 2(c). It reads as follows: 2(c) " cognizable offence" means an offence for which, and" cognizable case" means a case in which, a police officer may, in accordance with the....
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....on shall be reduced to writing by him or under his direction, and be read over to informant. Every such information whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it. The substance of the same is to be entered in a book to be kept by such officer in such form as may be prescribed. Section 155 deals with information as to non-cognizable cases and the manner of investigation of such cases. No police officer can investigate a non-cognizable offence without the order of the Magistrate having power to try such case or commit such case for trial. Section 156 reads as under: 156. Police officer's power to investigate cognizable case. - (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this Section to investi....
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....t 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 Schedule to the Code of Criminal Procedure It must be remembered that cognizable offence has been defined in terms of the classification of the offences under the First Schedule. The first part of the First Schedule deals with offences under the Indian Penal Code. The second part, as it were, deals with classification of offences against other laws. It reads as follows: Cl....
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....eds to be stated about Section 2 and we are of the view that it does not have any further repercussion on the issue at hand. SECTION 32 OF THE ACT 30. Coming to Section 32 of the Act, as already noted by us it falls in chapter IV. Inspectors are appointed by the Central Government or the State Government from persons possessing prescribed qualifications under a notification. Section 21 contemplates prescribing Under Rules the powers which may be exercised by the Inspectors apart from the duties which may be performed by him inter alia. Section 22 of the Act provides for power of search by the 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 Code of Criminal Procedure in regard to searches under the Act. Section 23 elaborately provides for procedure to be adopted by Inspectors. 31. Section 32 falling Under Section heading 'Cognizance of offences' declares, in unambiguous words, that prosecution, under Chapter IV, can be instituted only by (1) an Inspector (2) any gazetted officer of the Central Government or S....
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....vided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. 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 Code of Criminal Procedure except where it is otherwise provided in the Act in regard to the proceedings before the Special Court and the Special Court is deemed to be the Court of Sessions and the person conducting the prosecution is deemed to be the Public Prosecutor. No doubt, the proviso empowers the Central Government or the State Government to appoint for any case or class or group of cases, a Special Public Prosecutor. 37. The Scheme of the Act must be borne ....
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....declares that on the application, any person or any recognized consumer association, in the prescribed manner and on payment of prescribed fee, is entitled to submit for test or analysis, to a Government Analyst any drug or cosmetic purchased by the person or the association and to receive a report of such test or analysis signed by the Government Analyst. There can be no gainsaying that armed with a report which reveals the commission of an offence under Chapter IV of the Act, they can invoke Section 32 and prosecute the offender. 40. Section 32 of the Act undoubtedly provides for taking cognizance of the offence by the court only at the instance of the four categories mentioned therein. They are: (a) Inspector under the Act; (b) Any Gazetted Officer empowered by the Central or the State Government; (c) Aggrieved person; and (d) Voluntary Association. It is clear that the Legislature has not included the Police Officer as a person who can move the court. Before the matter reaches the court, Under Section 190 of the Code of Criminal Procedure, ordinarily starting with the lodging of the first information report leading to the registration of the first information report, investi....
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....alling in Section 32(c) and (d), viz., the aggrieved person or a voluntary association, it was submitted that the Magistrate can, Under Section 202 of the Code of Criminal Procedure, 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 Code of Criminal Procedure, 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 Code of Criminal Procedure, 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 exclusi....
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....s Curiae that a direction for investigation by the Magistrate Under Section 202 would not be tabooed as the result of the investigation by the Police Officer pursuant to a direction would not amount to a report Under Section 173. This is for the reason that being offences exclusively triable by the Court of Sessions, as noticed earlier, there is a bar against the Magistrate directing investigation Under Section 202 by the Police Officer or otherwise. 44. The learned Amicus Curiae submitted that the registering of an FIR Under Section 154 of the Code of Criminal Procedure in regard to reference under Chapter IV of the Act is a futile exercise. It is his submission that the filing of the First Information Statement (FIS) (We notice his complaint that even courts refer to the FIS as the complaint whereas a complaint is what is contemplated Under Section 190 of the Code of Criminal Procedure 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 ....
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....g other aspects. A LOOK AT HOW THIS COURT SPOKE IN THE PAST 47. In Jeewan Kumar Raut and Anr. v. Central Bureau of Investigation (2009) 7 SCC 526, the case arose under the Transplantation of Human Organs Act, 1994 (TOHO Act). Section 22 of this Act reads as follows: 22. Cognizance of offence.-- (1) No court shall take cognizance of an offence under this Act except on a complaint made by-- (a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or the State Government or, as the case may be, the Appropriate Authority; or (b) a person who has given notice of not less than sixty days, in such manner as may be prescribed, to the Appropriate Authority concerned, of the alleged offence and of his intention to make a complaint to the court. (2) No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act. (3) Where a complaint has been made under Clause (b) of Sub-section (1), the court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant recor....
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....iew of the matter, the investigation of the said complaint was handed over to it. xxx xxx xxx xxx 23. TOHO being a special Act and the matter relating to dealing with offences thereunder having been regulated by reason of the provisions thereof, there cannot be any manner of doubt whatsoever that the same shall prevail over the provisions of the Code. The investigation in terms of Section 13(3)(iv) of TOHO, thus, must be conducted by an authorised officer. Nobody else could do it. For the aforementioned reasons, the officer in charge of Gurgaon Police Station had no other option but to hand over the investigation to the appropriate authority. xxx xxx xxx xxx 25. Section 22 of TOHO prohibits taking of cognizance except on a complaint made by an appropriate authority or the person who had made a complaint earlier to it as laid down therein. The Respondent, although, has all the powers of an investigating agency, it expressly has been statutorily prohibited from filing a police report. It could file a complaint petition only as an appropriate authority so as to comply with the requirements contained in Section 22 of TOHO. If by reason of the provisi....
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.... 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. (2) No Special Court shall take cognizance of any offence under this Act without the previous ....
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....s to forward the same to the officer indicated in Clause (a) of Sub-section (1) of Section 23 to have an inquiry conducted into the complaint by a police officer indicated in Clause (b) of Sub-section (1) and only thereafter take cognizance of the offence complained of, if sanction is accorded to the Special Court to take cognizance of such offence under Sub-section (2) of Section 23. 53. It is pertinent to notice that in the said enactment, Under Section 23, there was a taboo against recording of any information under the Act without the prior approval of the Police Officer not below the rank of the Deputy Inspector General of Police. This must be understood as supplanting the provisions of Section 154 of the Code of Criminal Procedure 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 against taking cognizance of an offence under the said Act without the previous sanction of the Police Officer not below the rank of Additional Director General....
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....SCC 534, the matter arose under the Chartered Accounts Act, 1949. The Respondent, who had passed the examination of Chartered Accountant but was not a member of the Appellant-Institute, was sought to be prosecuted on the basis that he had represented before the Tax Authorities on the basis of the Power of Attorney or as Legal Representative and was submitting documents by preparing forged seals. The Authorised Representative of the Appellant-Institute submitted a complaint to the Police Officer. After investigation, the Police filed a challan of offences under the Indian Penal Code and Sections 24 and 26 of the Chartered Accountants Act. The same was successfully questioned by the Respondent on the basis that it fell foul of the mandate of Section 28 of the Chartered Accounts Act. 57. Section 28 of the Chartered Accountants Act, 1949 reads as follows: 28. Sanction to prosecute No person shall be prosecuted under this Act except on a complaint made by or under the order of the Council or of the Central Government. 58. This Court went on to notice the line of decisions rendered by this Court which permitted prosecution of distinct offences by way of deal....
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.... 378 and 379 of the Indian Penal Code and the question which arose for decision was whether the provisions of Sections 21 and 22, apart from other provisions of the MMDR Act, operated as a bar to prosecution for offences Under Section 379/114 and other provisions of the Indian Penal Code. 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 with by the High Court: 8. Criminal Appeal No. 499 of 2011, as stated above, arose out of the order [Sanjay v. State, (2009) 109 DRJ 594] passed by the Delhi High Court. The Delhi High Court formulated three issues for consideration: ....
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....d 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 Indian Penal Code 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 illeg....
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....ffence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable Under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report Under Section 173 Code of Criminal Procedure before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure. 73. After giving o....
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....iction of Criminal Courts Inquiries and Trial, proclaims that every offence shall ordinarily be enquired into and tried by a court within whose jurisdiction, the offence was committed. Thus, ordinarily, it is the Police Officer, within whose jurisdiction the cognizable offence is committed, would have the jurisdiction to investigate that offence. Section 178 onwards provide for the exceptions to Section 177 and we need not probe this matter further. Sub-section (2) declares the proceedings of police officer in a case of cognizable offence shall not in any stage be called in question on the ground that the case was one which he was not empowered to investigate under the provision. Lastly, Sub-section (3) provides that any Magistrate who is empowered Under Section 190 may order such an investigation which the officer is to undertake under Sub-section (1). It is next relevant to notice Section 157 Code of Criminal Procedure: 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 sh....
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....nce without the order of the Magistrate having power to try or commit the case for trial. (iv) However, a police officer who undertakes to investigate the matter is obliged to forthwith send a report of the same to the Magistrate empowered to take cognizance of an offence upon a police report. It is at once relevant to notice in the facts of this case that this indispensable element is not present. This is for the reason that Under Section 32 of the Act, a Magistrate is not competent to take cognizance of the offences under Chapter IV of the Act upon a police report. At this juncture, we may notice Section 158 Code of Criminal Procedure. 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, to hold a preliminary inquiry or otherwise t....
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....ut on reading the provisions, we gather the unmistakable impression that the law giver has empowered the police officer to investigate in the case of a cognizable offence without any order of the Magistrate where he ultimately in an appropriate case wishes the Court to take cognizance based on the material he gathers and transmits a police report. If this impression of ours is not flawed, an inevitable corollary would be that in the case of offence under Chapter IV of the Act though it be cognizable, a police officer would not have the power to investigate the matter. Section 169 speaks about the duty to release a person in custody if it is found on investigation that there is no sufficient evidence or reasonable ground of suspicion to justify forwarding such person to the Magistrate. Section 170 deals with cases where an officer conducting investigation finds sufficient evidence or reasonable ground and the Accused is forwarded to the Magistrate empowered to take cognizance of the offence upon a report. Again, the cardinal requirement for the officer to invoke Section 170 is availability of power with the Magistrate to take cognizance upon a police report. This key requirement is ....
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....Criminal Procedure 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 mandating a registration of a FIR Under Section 154 of the Code of Criminal Procedure. DUTY OF POLICE OFFICER UNDER SECTION 154 OF THE CODE OF CRIMINAL PROCEDURE IRRESPECTIVE OF IMPACT OF TERRITORIAL JURISDICTION 67. In State of A.P. v. Punati Ramulu and Ors. AIR 1993 SC 2644, the Police Constable had refused to record the complaint on the ground that the said Police Station had no territorial jurisdiction over the place of crime. It was held as follows: 4. ... It was certainly a dereliction of duty on the part of the constable because any lack of territorial jurisdiction, could not have prevented the constable from recording information about the cognizable offence and forwarding the same to the police station having jurisdiction over the area in which the crime was said to have been committed. (Emphasis supplied) 68. In Satvinder Kaur v. State (Govt. of NCT of Delhi) and Anr. AIR 1999 SC 3596, this Court held, inter alia, as follow....
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....ion 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 Officer has no jurisdiction to investigate the offence. It is not a case of absence of territorial jurisdiction. No doubt, if it is a case of another Police Officer being empowered to investigate the offence in terms of powers under Code of Criminal Procedure, 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 Code of Criminal Procedure, which constitute exceptions to the general principle laid down in Section 177 of the Code of Criminal Procedure, the High Court is to decide the dispute, as is provided in Section 186 of the Code of Criminal Procedure. 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 b....
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....e 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 (1997) 1 SCC 416. 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 their designations. The particulars of all ....
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..... Director, Health Services should prepare such a panel for all tehsils and districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. 78. We may observe what this Court laid down in paragraphs-36 and 37: 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 ....
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....ation, 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 Code of Criminal Procedure 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 Code of Criminal Procedure, reasons had to exist for effecting an arrest as provided therein. THE POWER OF ARREST UNDER THE CODE OF CRIMINAL PROCEDURE 82. Chapter V of the Code of Criminal Procedure deals with the arrest of persons. Section 41 of the Code of Criminal Pr....
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.... 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 to be apprehended or detained in custody in India; or (h) who, being a released convict, commits a breach of any Rule made under subsection (5) of Section 356; or (i) for whose arrest any requisition, whether written or oral, has been received ....
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....de of Criminal Procedure, it reads as follows: 43. Arrest by private person and procedure on such arrest. (1) Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station. (2) If there is reason to believe that such person comes under the provisions of Section 41, a police officer shall re-arrest him. (3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of Section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released. 84. Section 46 of the Code of Criminal Procedure provides for the manner of arrest. Section 47 enable....
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....e Under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. 87. The Officer In-charge of Police Station is to report about all persons arrested without warrant to the District Magistrate or the Sub-Divisional Magistrate as directed by the District Magistrate. Section 59 of the Code of Criminal Procedure 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 Code of Criminal Procedure provides that no arrest is to be made, except in accordance with the provisions of the Code of Criminal Procedure or any other law being in force, providing for arrest. Chapter XI of the Code of Criminal Procedure provides for preventive action of the Police. Section 151 of the Code of Criminal Procedure, inter alia, empowers a Police Officer, knowing of a design by a person to commit a cognizable offence, to arrest him without orders from a Magistrate and without a warrant. Section 157 of the Code of Criminal Procedure provides, inter alia, that the Police Officer, proceeding to ....
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....n 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 certain cases.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- (a) every offence, relating to adulterated or spurious drug and punishable under Clauses (a) and (c) of Sub-section (1) of Section 13, Clause (a) of Sub-section (2) of Section 13, Sub-section (3) of Section 22, Clauses (a) and (c) of Section 27, Section 28, Section 28A, Section 28B and Sub-sections (1) and (2) of Section 30 and other offences relating to adulterated drugs or spurious drugs, shall be cognizable. (b) no person Accused, of an offence punishable under Clauses (a) and (c) of Sub-section (1) of Section 13, Clause (a) of Sub-section (2) of Section 13, Sub-section (3) of Section 22, Clauses (a) and (c) of Section 27, Section 28, Section 28A, Section 28B and Sub-sections (1) and (2) of Section 30 and other offences relating to adulterated drugs or spurious drugs, shall be released on bail or on his own bond u....
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....73 of the Code of Criminal Procedure. 92. It is further contended that unlike the Prevention of Money-Laundering Act, 2002, which specially provides that "no Police Officer can investigate into an offence under the Act", the Act in question is silent. The special provision must prevail in case of conflict with the general provision. In view of absence of specific powers on the Inspector under the Act, provisions of Code of Criminal Procedure will prevail. A literal interpretation, according to the plain meaning of the language, is commended for our acceptance. The provisions of Section 36AC of the Act are emphasized before us treating offences thereunder as being cognizable and non-bailable. It is submitted that there is power to arrest with the Police. The judgment in Deepak Mahajan (supra) is sought to be distinguished. The implication of Section 36AC of the Act is that the offences set-out therein can be investigated by the Police. Therefore, Section 36AC will apply notwithstanding Section 32 of the Act. Otherwise, the intention of the Legislature, in making the offence cognizable and, at the same time, to denude the Police of the power to prosecute, would be a contradiction.....
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.... bar in Section 32. There is an inconsistency between Section 32 and Section 36AC, though they were amended/introduced by the same amendment. It becomes the duty of the Court to avoid a head-on clash between the two Sections. It is contended that the Court must effect reconciliation. Reliance is placed on judgment of this Court in D. Sanjeevayya v. Election Tribunal, Andhra Pradesh and Ors. AIR 1967 SC 1211. 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 powers to the Police. It is further contended that if it is held that the Police can file a Fi....
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....them. (3) It has to be borne in mind by all the courts all the time that when there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is the essence of the Rule of "harmonious construction". (4) The courts have also to keep in mind that an interpretation which reduces one of the provisions as a "dead letter" or "useless lumber" is not harmonious construction. (5) To harmonise is not to destroy any statutory provision or to render it otiose. 95. Police cannot arrest as there can be no investigation by the Police. Section 36AC of the Act stipulates stringent conditions for granting Bail. It can be made applicable when the Accused is remanded to the custody by the Magistrate while committing the case to the Sessions Court. 96. As regards Section 41 of the Code of Criminal Procedure, the learned Amicus Curiae would point out that empowering the Police to arrest in respect of cognizable offence, under the said provisions, being a general provision, may not be countenanced as the general provisions are overridden by the provisions of t....
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....) of the Code of Criminal Procedure, 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 Code of Criminal Procedure, sets the ball rolling, empowering the Police Officer to investigate Under Section 157 of the Code of Criminal Procedure, and gather material and finally file a Report, would all appear to us to be inapplicable to an offence under Chapter IV of the Act. 101. The conundrum, however, is posed by the aspect relating to arrest. Undoubtedly, there is no express power on the Inspector to arrest under the Act. The argument of the learned Additional Solicitor General, Ms. Pinky Anand that the Drugs Inspector could not be a Police Officer as he is not a person who can file a Report Under Section 173 of the Code of Criminal Procedure and, therefore, he canno....
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....ts 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 ANR. (1994) 3 SCC 440 103. In Deepak Mahajan (supra), the question arose in the context of provisions of Section 35 of the Foreign Exchange Regulation Act, 1973 (FERA) and Section 104 of the Customs Act, 1962, which expressly conferred power of arrest on the Officers under the Acts. The question which squarely arose was whether upon arrest being effected Under Section 35 of the FERA and Section 104 of the Customs Act, a remand could be ordered Under Section 167(2) of the Code of Criminal Procedure In the course of disc....
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....that follows is that "any person is arrested" occurring in the first limb of Section 167(1) of the Code takes within its ambit "every person arrested" Under Section 35 of FERA or Section 104 of the Customs Act also as the case may be and the 'person arrested' can be detained by the Magistrate in exercise of his power Under Section 167(2) of the Code. In other words, the 'person arrested' under FERA or Customs Act is assimilated with the characteristics of an 'Accused' within the range of Section 167(1) and as such liable to be detained Under Section 167(2) by a Magistrate when produced before him. 105. The Court went on to consider the impact of other laws in regard to the scope of the expression "Police Officer". It held as follows: 111. Neither the Police Act, 1861 (Act V of 1861) nor any other statute defines the expression 'police officer'. Shortly stated, the main duties of the police are the prevention, detention and investigation of crimes. As the powers and duties of the State have increased and are increasing manifold, various Acts dealing with Customs, Excise, Forest, Taxes etc. have come to be passed and consequently the preven....
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.... 106 Section 110 Section 104 Section 107 Section 108 3. The Gold (Control) Act (now repealed) Section 58 -- Section 60 Section 61 Section 66 Section 68 Section 64 Section 63 4. The Prevention of Food Adulteration Act. Section 10(2) Section 6 to be r/w Section 18 of the Sea Customs Act. -- -- Section 10 Section 10(B) -- -- 5. The Railway Property (Unlawful Possession) Act. Section 10 and Section 11 -- -- -- -- Section 6 -- Section 9 108. The Court further held as follows: 116. It should not be lost sight of the fact that a police officer making an investigation of an offence representing the State files a report Under Section 173 of the Code and becomes the complainant whereas the prosecuting agency under the special Acts files a complaint as a complainant i.e. Under Section 61(ii) in the case of FERA and Under Section 137 of the Customs Act. To say differently, the police officer after consummation of the investigation files a report Under Section 173 of the Code upon which the Magistrate may take cognizance of any offence disclosed in the report Under Section 190(1)(b)....
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....vestigate the matter as provided in the Code of Criminal Procedure, and finally, file a Report Under Section 173(2) of the Code of Criminal Procedure, 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. 110. We do agree with the learned Amicus Curie that the Police Officer, for instance, cannot be approached by any person with a complaint that a cognizable offence under Chapter IV of the Act has been committed and he is not bound to register the FIR in terms of the law which is being held down by this Court in Lalita Kumari (supra). This is for the reason that if he were to register an FIR, then, he would have to pass on to the stage of Section 157 of the Code of Criminal Procedure and, furthermore, carry out investigation, as understood in law, for which neither is he deemed qualified or empowered by the Law Giver nor is he entitled to file a Report Under Section 173 of the Code of Criminal Procedure. POWER OF ARREST UNDER THE ACT 11....
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....customs empowered in this behalf by general or special order of the [Principal Commissioner of Customs or Commissioner of Customs] has reason to believe that any person in India or within the Indian customs waters has committed an offence punishable Under Section 132 or Section 133 or Section 135 or Section 135A or Section 136, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested under Sub-section (1) shall, without unnecessary delay, be taken to a magistrate. (3) Where an officer of customs has arrested any person under Sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police-station 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 (b) evasion or attempted evasion of duty exceeding fifty lakh rupees, shall be cognizable. (5) Save as otherwise provided in Sub-s....
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....ible inform him of the grounds for such arrest and shall take such arrested person to the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (2) Any officer who has arrested any person under this Section shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police station has, and is subject to, under the Code of Criminal Procedure, 1898 (5 of 1898). (Emphasis supplied) 117. Section 10(8) of the The Prevention of Food Adulteration Act, 1954 (37 Of 1954), read as follows: 10(8). Any food inspector may exercise the powers of a police officer Under Section 42 of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of ascertaining the true name and residence of the person from whom a sample is taken or an Article of food is seized. It may be noticed that Section 42 of the Code of Criminal Procedure confers power of ar....
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....tion 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 under the Code of Criminal Procedure, there is no power with the Police Officer to arrest in the case of a non-cognizable offence except upon a Warrant or Order of a Magistrate. 122. In this regard, it may also be apposite to refer to the provisions of the Central Excise Act, 1944. Section 13 confers the power to arrest. It reads as follows: 13. Power to arrest:Any Central Excise Officer not below the rank of Inspector of Central Excise may, with the prior approval of the Principal Commissioner of Central Excise or Commissioner of Central Excise, arrest any person whom he has reason to believe to be liable to punishment under this Act or the Rules made thereunder. 123. However, Section 9A, as it stood prior to it being amended from the year 2004 onwards, declared that the offences Under Section 9 were to be deemed to be non-cognizable under the provisions of the Code of Criminal Procedure. In Sunil Gupta v. Union of India 2000(118) ELT 8 P&H, the Division Bench of the Punjab and....
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....ent 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 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 Anr. v. Union of India and Anr. (2011) 14 SCC 1, a Judgment, which dealt with the Central Excise Act, 1944 and also the Customs Act, 1962. The question, however, which arose was, whether under the said enactments, as the offences were non-cognizable, were they bailable as well? Section 9A, as it was considered by this Court, read as follows: 9A. Certain offences to be non-cognizable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), offences Under....
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....t expressions used in the Code and also in connected enactments in respect of a non-cognizable offence, a police officer, and, in the instant case an excise officer, will have no authority to make an arrest without obtaining a warrant for the said purpose. The same provision is contained in Section 41 of the Code which specifies when a police officer may arrest without order from a Magistrate or without warrant. (Emphasis supplied) 128. The Court applied the same principles in regard to the cases which it decided under the Customs Act. We may notice that Section 18 of the Central Excise Act, 1944 provides for the manner of making an arrest. It reads as follows: 18. Searches and arrests how to be made.-All searches made under this Act or any Rules made thereunder and all arrests made under this Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898(5 of 1898), relating respectively to searches and arrests made under that Code. 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 ....
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.... Court, cannot be squared with the view taken by Punjab and Haryana High Court and Gujarat High Court, respectively, in Sunil Gupta (supra) and also Bhavin Impex Pvt. Ltd. (supra), which took the view in effecting arrest under the Central Excise Act, no warrant was required. It is apparently consequent upon the same that Legislature stepped in with amendments. Section 9A came to be amended and it reads as follows after the amendment: Section 9A. Certain offences to be non-cognizable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), offences Under Section 9, except the offences referred to in Sub-section (1A), shall be non-cognizable within the meaning of that Code. (2) Any offence under this Chapter may, either before or after the institution of prosecution, be compounded by the Principal Chief Commissioner of Central Excise or Chief Commissioner of Central Excise on payment, by the person Accused of the offence to the Central Government, of such compounding amount and in such manner of compounding as may be prescribed: Provided that nothing contained in this Sub-section shall apply to--- (a) a....
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....6AC, the offences have been declared cognizable. If we proceed on the basis that the power of arrest can be traced from Section 22(1)(d) of the Act, then, after the amendment in Section 36AC, by which, the offences falling under Chapter IV of the Act, which are declared as cognizable and non-bailable, the decks are cleared for effecting arrest without a warrant by the Inspector. 134. However, the question would arise whether there exists the power of arrest with the Drugs Inspector. We will, on the one hand, array possible objections to the conferment of such powers. The power to arrest is a drastic power. It involves encroachment on personal liberty. The Drugs Inspector is not a Police Officer under the Code of Criminal Procedure The Legislature was aware of the power of the Police Officer to arrest when he embarks on investigation of a cognizable case, as is clear from Section 157 of the Code of Criminal Procedure There is another indication in the Act which may reveal the mind of the Legislature that the power of arrest was not intended to be conferred on the Drugs Inspector. Section 34AA, reads as follows: 34AA.-Penalty for vexatious search or seizure.--Any Inspecto....
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....owed. 137. We have noticed that the Inspector under the Act has been conferred with a vast and formidable array of powers, and in an enactment like the Act, the taking of samples, the Report given by the Competent Officer in regard to the same and the right reserved to the concerned person to seek a further Report from the Central Laboratory, go a long way in the successful culmination of a complaint Under Section 32 of the Act. The Inspector is, undoubtedly, endowed with the power of inspection, taking samples of any drug or cosmetic, searching any person, searching any 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....
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....hat 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 Code of Criminal Procedure, inter alia. Now, the Police Officer acting under the Code of Criminal Procedure even proceeding for a moment on the basis that it is sufficient that a mere memorandum of arrest as required under the Code of Criminal Procedure is prepared and further there is compliance with other provisions of the Code of Criminal Procedure also, would it suffice is the question that would arise in the following manner? We have noted from the provisions of the Act and the Rules that it is the Drugs Inspector who is empowered and duty bound to investigate the complaint about violations of acts and rules. He is the person charged with a duty of prosecuting the offenders. If the police officer is merely to be granted a power of arrest and without having any power of investigation then how would it be possible for the police officer to make any investigation under the act and if no investigation is possible, how would the Police Officer be in a position to be of any assistance to the Public Prosecutor and, therefore, to th....
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....oduce the result of harmonizing two seemingly irreconcilable commands from the Law-Giver. This interpretation commends itself to us for the reason that the investigation into offences, under Chapter IV of the Act, would commence, be carried out and would culminate in, in the safe hands of the competent and qualified Statutory Authority, as designated by law. It would also avoid an outside agency like a Police Officer, being obliged to register an FIR, for the reason that where arrest has to be made, a FIR is to be registered, and, when the registering of the FIR carries with it an unattainable object of preferring a Final Report Under Section 173 of the Code of Criminal Procedure, as far as the Police Officer is concerned. We make it clear that if a Police Officer is approached with regard to a complaint regarding commission of an offence falling under Chapter IV of the Act, he is not to register an FIR unless it be that a cognizable offence, other than an offence falling under Chapter IV of the Act, is also made out. He must makeover the complaint to the competent Drug Inspector so that action in according with law is immediately taken where only offences under Chapter IV are made....
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....g the source of his authority, to be Section 22(1)(d) of the Act, which is for carrying out the purpose of Chapter IV of the Act or any Rules made thereunder. 145. Section 33P of the Act, reads as follows: 33P. Power to give directions.--The Central Government may give such directions to any State Government as may appear to the Central Government to be necessary for carrying into execution in the State any of the provisions of this Act or of any Rule or order made thereunder. We notice that the Central Government is conferred with powers to give directions to the State Government for the purpose of carrying into execution, in the State, any of the provisions of the Act or any Rule or Order made thereunder. It is for the Central Government to consider the question whether it can, under the said provision, issue directions in regard to the power of arrest, which we have found, subject to what we have stated in this Judgment. 146. Further, Section 58 of the Code of Criminal Procedure provides that the Officers In-charge of Police Stations are to report cases of all persons arrested without warrant as provided therein. We make it clear that the Drugs Inspector ....
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....d 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 Code of Criminal Procedure, in regard to cognizable offences under Chapter IV of the Act and he cannot investigate such offences under the provisions of the Code of Criminal Procedure. 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 Code of Criminal Procedure. 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 ac....