The Hon’ble Supreme Court, on 28th August 2020, in the matter of Union of India v. Ashok Kumar Sharma and Others pronounced that a Police Officer cannot register a FIR in regard to cognizable offences under Chapter IV of the Drugs and Cosmetics Act, 1940 and he cannot investigate such offences under the provisions of the CrPC. An arrest can be made by the Drugs Inspector in regard to such offences. Drugs Inspectors, who carry out the arrest, must not only report the arrests, as per Section 58 of the CrPC, but also immediately report the arrests to their superior Officers.
Questions before the Hon’ble Supreme Court
What is the interplay between the provisions of the Code of Criminal Procedure and the Drugs and Cosmetics Act, 1940?
Whether in respect of offences falling under chapter IV of the Drugs and Cosmetics Act, 1940, a FIR can be registered under Section 154 of the CrPC and the case investigated ?
Whether Section 32 of the Drugs and Cosmetics Act, 1940 supplants the procedure for investigation of offences under CrPC and the taking of cognizance of an offence under Section 190 of the CrPC?
Can the Inspector under the Drugs and Cosmetics Act, 1940, arrest a person in connection with an offence under Chapter IV of the Drugs and Cosmetics Act, 1940 ?
If investigation is not permissible for a police officer under Section 157 of CrPC 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 CrPC interlinked with the power of arrest under Section 157 CrPC?
Hon’ble Supreme Court’s Observations:
The Drugs and Cosmetics Act, 1940, purports to achieve the object of regulating the import, manufacture, distribution and sale of drugs and cosmetics. (Para 10)
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.(Para 28)
The purport of Section 2 appears to be that Legislature intended to keep alive the provisions of the Dangerous Drugs Act, 1930. It would continue to hold sway despite the enactment of the Drugs and Cosmetics Act, 1940. If there are any other provisions of cognate laws dealing with the subjects dealt with by the Drugs and Cosmetics Act, 1940, the operation of those Acts was to be preserved. The Drugs and Cosmetics Act does not provide for any express repeal of any enactment. (Para 29)
A comparison between Section 32 of the Drugs and Cosmetics Act, 1940 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 Drugs and Cosmetics Act, 1940. (Para 32)
Section 32 of the Drugs and Cosmetics Act, 1940, 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 CrPC, ordinarily starting with the lodging of the first information report leading to the registration of the first information report, investigation is carried out culminating in a report under Section 173. The Police Report, in fact, is the Report submitted under Section 173 of the CrPC to the court. Under Section 190 of the CrPC, the court may take cognizance on the basis of the police report. Such a procedure is alien to Section 32 of the Drugs and Cosmetics Act, 1940. 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 Drugs and Cosmetics Act, 1940 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 Drugs and Cosmetics Act, 1940, would be governed by the provisions of the Drugs and Cosmetics 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.(Para 40)
There is no provision in the Drugs and Cosmetics Act which expressly authorises the special court which is the Court of Sessions to take cognizance of the offence under Chapter IV. This means that the provisions of Chapters XV and XVI of the CrPC must be followed in regard to even offences falling under Chapter IV of the Drugs and Cosmetics Act. Starting with Section 200 of the Drugs and Cosmetics Act, dealing with taking of cognizance by a Magistrate on a complaint, including examination of the witnesses produced by the complainant, the dismissal of an unworthy complaint under Section 203 and following the procedure under Section 202 in the case of postponement of issue of process are all steps to be followed. It is true that when the complaint under Section 32 is filed either by the Inspector or by the Authorised Gazetted Officer being public servants under Section 200, the Magistrate is exempted from examining the complainant and witnesses.(Para 40)
A perusal of Section 202, CrPC would show that in regard to an offence falling under Chapter IV of the Drugs and Cosmetics 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. (Para 41)
A Magistrate proceeding under Section 202 of the CrPC, is subjected to two conditions:
- 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.
- In regard to the inquiry so conducted by him, he must call upon the complainant to produce all his witnesses and they must be examined not on the basis of any affidavit, and not without the support of an oath but the examination must be under an oath. It is to be remembered that under the provisions existing under the previous Code, an elaborate preliminary inquiry where even an accused had right of cross-examination of witnesses, was contemplated at the hands of the Magistrate before the committal order was passed. This no longer survives after the amendment.
Offences exclusively triable by a Court of Sessions are ordinarily pursued on the strength of a Police Report. The Police Officer examines witnesses under Section 161 of the CrPC, collects other evidence, arrives at a satisfaction that indeed a case is made out to arraign a person or persons and, accordingly, the charge-sheet is filed under Section 173. Section 207 of the CrPC 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. (Para 42)
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, CrPC read with Section 202, CrPC, culminating in the issuance of summons or warrant under Section 204, there is material before the Magistrate and the court is assured that the case is not frivolous and wholly meritless going by a prima facie view undoubtedly as contemplated in law at that stage regarding the commission of a cognizance offence. Apart from this, reassuring aspect, as in a prosecution launched under Police Report, the accused in a trial by a Court of Sessions to which Court a case would stand committed under Section 209, would also know beforehand the case he would have to meet having regard to the materials which weighed with the Magistrate and which is also made available to him under Section 208, CrPC. In such circumstances, we need not consider further the argument of the learned Amicus Curiae that a direction for investigation by the Magistrate under Section 202 would not be tabooed as the result of the investigation by the Police Officer pursuant to a direction would not amount to a report under Section 173. This is for the reason that being offences exclusively triable by the Court of Sessions, as noticed earlier, there is a bar against the Magistrate directing investigation under Section 202 by the Police Officer or otherwise. (Para 43)
Chapter XII of the CrPC carries the chapter heading “Information to the Police and their Powers to Investigate”. The Chapter starts off with Section 154 carrying Section heading “Information in cognizable cases”. It declares that every information relating to a cognizable offence given to an officer in charge of the police station, if given orally, is to be reduced to writing and whether given in writing or reduced to writing it is to be signed by the informant. The key elements of Section 154 CrPC can be noticed. Information in relation to a cognizable offence reaching the officer in charge of a police station which is ordinarily understood as first information statement concerning cognizable offences sets the ball rolling so far as the police officer, in charge of a police station is concerned. The next provision to notice in the Chapter is Section 156. It provides that any officer in charge of a police station may without the order from a Magistrate investigate any cognizable offence within which a court, having jurisdiction over a local area within the limits of such station, would have the power to enquire into or try under the provisions of Chapter XIII. In fact, Section 177 of the CrPC, which is the first Section in Chapter XIII dealing with jurisdiction of Criminal Courts Inquiries and Trial, proclaims that every offence shall ordinarily be enquired into and tried by a court within whose jurisdiction, the offence was committed. Thus, ordinarily, it is the Police Officer, within whose jurisdiction the cognizable offence is committed, would have the jurisdiction to investigate that offence. Section 178 onwards provide for the exceptions to Section 177 and we need not probe this matter further. Sub-section (2) declares the proceedings of police officer in a case of cognizable offence shall not in any stage be called in question on the ground that the case was one which he was not empowered to investigate under the provision. 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). (Para 62)
Section 157 CrPC comes under the section heading ’Procedure for investigation’. The body of the Section can be split-up into the following parts –
- An officer in charge of a police station may from information received have reason to suspect the commission of an offence. He may also have reason to suspect the commission of cognizable offence not on the basis of any information but otherwise.
- As far as information is concerned, it is clearly relatable to the information which has been provided to him within the meaning of Section 154. Cases where he acts on his own knowledge would be covered by the expression otherwise.
- The offences must be an offence which he is empowered under Section 156 to investigate.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.
- 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.
Under Section 32 of the Drugs and Cosmetics Act, a Magistrate is not competent to take cognizance of the offences under Chapter IV of the Drugs and Cosmetics Act upon a police report. (Para 63)
Section 158 CrPC 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 Drugs and Cosmetics Act.
Section 159 CrPC, enables the Magistrate on receiving such report to direct investigation or if he thinks fit at once to proceed or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry or otherwise to dispose of the case in the manner provided in the CrPC. It is clear that the purpose of Section 157 is to hold the police officer accountable to keep informed the Magistrate. It acts as an assurance that the reports are not tampered, and that the rights of the accused are sought to be secured. The purport of Section 159 CrPC is also to enable the Magistrate to exercise control over the investigation. All these aspects are irrelevant and out of bounds both for the police officer and the Magistrate in respect of an offence falling under chapter IV of the Drugs and Cosmetics Act. (Para 63)
In regard to taking cognizance under Section 32 of the Drugs and Cosmetics Act, 1940, 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 Drugs and Cosmetics Act.(Para 64)
Section 170 CrPC deals with cases where an officer conducting investigation finds sufficient evidence or reasonable ground and the accused is forwarded to the Magistrate empowered to take cognizance of the offence upon a report. Again, the cardinal requirement for the officer to invoke Section 170 is availability of power with the Magistrate to take cognizance upon a police report. This key requirement is absent in the case of an offence falling under Chapter IV of the Drugs and Cosmetics Act, 1940. The link therefore snaps.(Para 64)
What is applicable in respect of offences under Chapter IV of the Drugs and Cosmetics Act is not 190 of the CrPC but Section 32 of the Drugs and Cosmetics 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. (Para 64)
The duty to register FIR, when information is received about a cognizable offence falling under Chapter IV of the Drugs and Cosmetics Act, it is clear from the very inception that a Police Officer has no jurisdiction to investigate the offence. It is not a case of absence of territorial jurisdiction. No doubt, if it is a case of another Police Officer being empowered to investigate the offence in terms of powers under CrPC, the law is, as laid down, that there is the obligation to register an FIR and then make it over to the Police Station which has jurisdiction. In fact, a conflict, when in the context of Sections 178 to 185 of the CrPC, which constitute exceptions to the general principle laid down in Section 177 of the CrPC, the High Court is to decide the dispute, as is provided in Section 186 of the CrPC. If an information is relatable only to cognizable offences under Chapter IV of the Drugs and Cosmetics Act, the Police Officer would be out of bounds and he has no role to play in the investigation as neither he nor any other Police Officer has any role to play in the investigation. His duty lies in referring the complainant to the concerned Drugs Inspector. If he is in receipt of information about an offence under Chapter IV of the Drugs and Cosmetics Act. (Para 71)
Chapter V of the CrPC deals with the arrest of persons. Section 41 of the CrPC, vide the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009, Section 5) (w.e.f. 01-11-2010), deals with the power of the Police Officer to arrest without warrant. (Para 82)
Section 41A of the CrPC, inserted w.e.f. 01.11.2010, provides for issuance of Notice by the Police Officer in all the cases covered by Sub-Section (1) of Section 41 of the CrPC, where the arrest of a person is not required, to appear before him. As long as a person complies with the Notice, Section 41A(iii) prohibits arrest unless the Police Officer, for reasons to be recorded, is of the view that he is to be arrested. Section 41B of the CrPC, again inserted w.e.f. 01.11.2010, casts a duty on a Police Officer, making an arrest, to bear an accurate, visible and clear identification of his name. He is to prepare a Memorandum of Arrest, which is, inter alia, to be countersigned by the person arrested. Section 41D of the CrPC confers a right on the arrested person to meet an Advocate of his choice during the interrogation, though not throughout interrogation. Under Section 42 of the CrPC, if a person commits a non-cognizable offence in the presence of a Police Officer or he is accused of committing a non-cognizable offence, and the Police Officer, on demanding his name and residence, is met with a refusal or the giving of a name or residence, which the Officer believes to be false, arrest can be made but for the purpose of ascertaining the name and residence. In fact, he is to be released immediately on executing a bond when the true name and residence is ascertained. If there is failure to ascertain the address within twenty-four hours, inter alia, of arrest, no doubt, it is forthwith forwarded to the nearest Magistrate having jurisdiction. The Act contemplates arrest by a private person. The power and the procedure, is detailed in Section 43 of the CrPC. (Para 83)
Section 46 of the CrPC provides for the manner of arrest. Section 47 enables the Police Officer to search the place entered by a person sought to be arrested. (Para 84)
The person arrested is not to be subjected to more restraint than is necessary to prevent his escape, declares Section 49 of the CrPC. Every Police Officer or other person, arresting a person without a warrant, is bound forthwith to communicate to him all particulars of the offence for which he is arrested or other grounds for such arrest. This is provided for in Section 50 of the CrPC. A Police Officer, when he arrests a person without warrant and he is not accused of committing a non-bailable offence, is duty-bound to inform him of his entitlement to be released on Bail. The Police Officer is also under an obligation to inform, under Section 50A of the CrPC, a nominated person about the factum of arrest. This came into force on 23.06.2006. Section 51 deals with search of the arrested person. (Para 85)
Section 54 of the CrPC declares that when any person is arrested, he shall be examined by a Medical Officer. Section 54A of the CrPC, inserted w.e.f. 23.06.2006, specifically provides for identification of the arrested person. Section 55A of the CrPC, inserted w.e.f. 31.12.2009, makes it the duty of the person, having the custody of the person, to take reasonable care of the health and safety. Section 56 of the CrPC makes it the duty of the Police Officer, arresting without warrant, to produce the person arrested before a Magistrate having jurisdiction without unnecessary delay or before the Officer In-charge of a Police Station. This is, no doubt, subject to the provisions as to Bail. (Para 86)
The Officer In-charge of Police Station is to report about all persons arrested without warrant to the District Magistrate or the Sub-Divisional Magistrate as directed by the District Magistrate. Section 59 of the CrPC provides that no person, who has been arrested by a Police Officer, shall be discharged, except on his own bond or on Bail or under the Special Order of the Magistrate. Section 60A of the CrPC provides that no arrest is to be made, except in accordance with the provisions of the CrPC or any other law being in force, providing for arrest. Chapter XI of the CrPC provides for preventive action of the Police. Section 151 of the CrPC, inter alia, empowers a Police Officer, knowing of a design by a person to commit a cognizable offence, to arrest him without orders from a Magistrate and without a warrant. Section 157 of the CrPC provides, inter alia, that the Police Officer, proceeding to investigate a case, may take measures for the arrest of the offender. Section 167 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. (Para 87)
Chapter XXXIII of the CrPC deals with Bail. Section 436 of the CrPC deals with Bail in the case of an arrest of a person accused of a bailable offence. There is a Statutory Right to Bail in the manner provided therein. Section 437 of the CrPC provides for Bail in the case of a non-bailable offence. It, essentially, deals with a situation where a person is brought before a court other than the High Court or Court of Sessions. There are certain restrictions and conditions to be fulfilled in the matter of grant of Bail on the Court, as is stated therein. (Para 88)
Section 439 of the CrPC, confers special powers on the High Court or the Court of Sessions in regard to Bail. (Para 89)
The arrest of a person involves an encroachment on his personal liberty. Article 21 of the Constitution of India declares that no person shall be deprived of his personal liberty and life except in accordance with procedure established by law. There can be no doubt that the power to arrest any person therefore must be premised on a law which authorizes the same. (Para 98)
Having regard to the express provisions of Section 32 of the Drugs and Cosmetics Act, 1940, insofar as the prosecution is to be launched qua offences falling within the four walls of Chapter IV of the Drugs and Cosmetics Act and which are also the subject matter of Section 36AC of the Drugs and Cosmetics Act, there cannot be any doubt that prosecution of the offender, for such offences, can be done only in the manner provided in Section 32 of the Drugs and Cosmetics Act. The prosecution can be launched only by the persons mentioned in Section 32 of the Drugs and Cosmetics Act. A Police Officer, as such, does not figure as one of the persons who may prefer a report under Section 173(2) of the CrPC, on which, cognizance could be taken by the Special Court.(Para 99)
If the acts or omission also constitutes an offence under any other law, under Section 32(3) of the Drugs and Cosmetics 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.(Para 99)
Consequently, the registration of an FIR, which under the scheme of the CrPC, sets the ball rolling, empowering the Police Officer to investigate under Section 157 of the CrPC, and gather material and finally file a Report, would all be inapplicable to an offence under Chapter IV of the Drugs and Cosmetics Act.(Para 100)
The Court must start with the presumption that Parliament, which is author of the CrPC and also the Drugs and Cosmetics Act, was aware of the provisions of the CrPC, as it existed at the time when the Act was enacted in 1940. This is following the principle that the Legislature must be assumed to know the law which exists on the Statute Book when it makes a new law. It must, therefore, be assumed to know that the power of arrest is expressly conferred on the Police Officer. The Legislature has not, in the Drugs and Cosmetics Act, yet conferred express power on the Drugs inspector, to arrest. However, Section 22(1)(d) of the Drugs and Cosmetics 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 Drugs and Cosmetics 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 Drugs and Cosmetics 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 Drugs and Cosmetics Act through the competent hands of qualified persons. The Drugs and Cosmetics 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 Drugs and Cosmetics Act, is also a carefully thought out ideal. (Para 102)
The power to arrest is a drastic power. It involves encroachment on personal liberty. The Drugs Inspector is not a Police Officer under the CrPC. The Legislature was aware of the power of the Police Officer to arrest when he embarks on investigation of a cognizable case,asisclearfromSection157oftheCrPC. There is another indication in the Drugs and Cosmetics Act, which may reveal the mind of the Legislature that the power of arrest was not intended to be conferred on the Drugs Inspector i.e. Section 34AA. (Para 134)
The Inspector under the Drugs and Cosmetics Act has been conferred with a vast and formidable array of powers, and in an enactment like the Drugs and Cosmetics 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 Drugs and Cosmetics 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 Drugs and Cosmetics Act, the Inspector is pivot around which the Drugs and Cosmetics 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 Drugs and Cosmetics Act and the Rules thereunder. He is also duty-bound under Rule 51(7) to make inquiries and inspections as may be necessary to detect sale of drugs in contravention of the Drugs and Cosmetics Act, 1940. Under Rule 52, in regard to manufacture of drugs, it is again the duty to institute prosecution for breaches besides making inspections of all premises. This is having regard to both his qualifications and also the powers conferred on him. Section 23 of the Drugs and Cosmetics Act, undoubtedly, is the procedure to be followed by the Inspector. The Legislature has not given any hint, intending to limit the scope of the residuary powers. No doubt, the Drugs and Cosmetics Act, is a pre-Independence Act. If we interpret that it is a Drugs Inspector, acting under Section 22 of the Drugs and Cosmetics Act, who alone can investigate offences falling under Chapter IV of the Drugs and Cosmetics Act, and there is no power for the Police Officer under the CrPC to investigate under the Drugs and Cosmetics 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 Drugs and Cosmetics Act, must be conceded to the Drugs Inspector. The legislative intention in conferring various powers, as we have noticed in the foregoing provisions of Section 22 of the Drugs and Cosmetics Act and declaring that all other powers, which are necessary for the purpose of the Drugs and Cosmetics Act, 1940, are to inhere in the Drugs Inspector, reassures us that we would be correctly ascertaining the legislative intention to be that on a Drug Inspector taking-up a matter falling under Chapter IV of the Drug and Cosmetics Act, he is invested with the power to arrest.(Para 137)
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 v. State of West Bengal ((1997) 1 SCC 416),and the peril of defying the same, would be to invite consequences, inter alia, as are provided therein. As far as the arrest, not being mentioned in Section 34AA, as forming a ground for visiting the delinquent Officer with penalty, it may be noticed that there is a residuary power in Section 34AA and it would cover any act. Section 34AA(d) provides that if any Inspector, exercising powers under the Drugs and Cosmetics Act or the Rules made thereunder, commits, as such Inspector, any other act, to the injury of any person without having reason to believe that such act is required for the execution of his duty, he shall be punishable with fine which may extend to one thousand rupees.(Para 139)
If a Police Officer is approached with regard to a complaint regarding commission of an offence falling under Chapter IV of the Drugs and Cosmetics 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 Drugs and Cosmetics 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.(Para 141)
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 Drugs and Cosmetics 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.(Para 142)
The Drugs Inspector, under the Drugs and Cosmetics Act, is invested with certain powers similar to a Police Officer. (Para 143)
The word “investigation” cannot be limited only to a Police investigation. (Para 143)
The power to arrest a person must indeed flow from the provisions of a Statute. The statutory provision under the Drugs and Cosmetics Act is Section 22(1)(d). The arrested person, under the Drugs and Cosmetics Act, would be an accused person to be detained under Section 167(2) of the CrPC. No doubt, the Police Officer is bound to provide assistance to the Inspector in case of need to effectuate the arrest where there is resistance or likelihood of resistance. No doubt, in regard to the arrest in relation to offences falling under Chapter IV of the Drugs and Cosmetics Act, which do not fall under Section 36AC, the power of arrest would depend upon the provision in the Schedule to the CrPC.(Para 143)
The existence of the power to arrest with the Drugs Inspector is not to be understood as opening the doors to making illegal, unauthorized or unnecessary arrest. Every power comes with responsibility. In view of the impact of an arrest, the highest care must 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 Drugs and Cosmetics Act, which is for carrying out the purpose of Chapter IV of the Drugs and Cosmetics Act or any Rules made thereunder. (Para 144)
The Drugs Inspector must, apart from other relevant provisions of the CrPC, comply with the requirement of reporting. In view of the need to safeguard the interest of persons, who may be proceeded against by the Drugs Inspector, we also hold and direct that the Drugs Inspector will immediately, after arrest, make a report of the arrest to his superior Officer. (Para 146)
- In regard to cognizable offences under Chapter IV of the Drugs and Cosmetics Act, 1940, in view of Section 32 of the Drugs and Cosmetics Act, 1940 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.
- 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 Drugs and Cosmetics Act, 1940, i.e., if he has committed any cognizable offence under any other law.
- Having regard to the scheme of the CrPC and also the mandate of Section 32 of the Drugs and Cosmetics Act, 1940 and on a conspectus of powers which are available with the Drugs Inspector under the Act and also his duties, a Police Officer cannot register a FIR under Section 154 of the CrPC, in regard to cognizable offences under Chapter IV of the Drugs and Cosmetics Act, 1940 and he cannot investigate such offences under the provisions of the CrPC.
- Having regard to the provisions of Section 22(1)(d) of the Drugs and Cosmetics Act, 1940, we hold that an arrest can be made by the Drugs Inspector in regard to cognizable offences falling under Chapter IV of the Drugs and Cosmetics Act, 1940 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 v. State of West Bengal ((1997) 1 SCC 416) and to follow the provisions of CrPC.
- 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 Drugs and Cosmetics Act, 1940. 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.
- Further, we would be inclined to believe that in a number of cases on the understanding of the law relating to the power of arrest as, in fact, evidenced by the facts of the present case, police officers would have made arrests in regard to offences under Chapter IV of the Drugs and Cosmetics Act, 1940. Therefore, in regard to the power of arrest, we make it clear that our decision that Police Officers do not have power to arrest in respect of cognizable offences under Chapter IV of the Drugs and Cosmetics Act, 1940, will operate with effect from the date of this Judgment.
- 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.
Copy of judgement: Judgement_28-Aug-2020
-Adv. Tushar Kaushik