TMI Blog2020 (8) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... law. III. Having regard to the scheme of the Code of Criminal Procedure and also the mandate of Section 32 of the Act and on a conspectus of powers which are available with the Drugs Inspector under the Act and also his duties, a Police Officer cannot register a FIR Under Section 154 of the 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 [ 1996 (12) TMI 350 - SUPREME COURT] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 pointed out by the Appellant that the High Court issued notice seeking presence of the Appellant. The High Court by the impugned order had allowed the writ petition and quashed the FIR. In short, the reasoning of the High Court is that under the Act Section 32 must be scrupulously observed and it is the mechanism for prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers 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. Ms. Pinky Anand, learned Additional Solicitor General would submit that the High Court was in error in holding that FIR under Code of Criminal Procedure cannot be lodged in respect of the Act. She drew our attention to Section 36AC of the Act. Thereunder, as we shall see in greater detail, certain offences under the Act have been decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lature 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 even without the aid of Section 36AC, the offences Under Section 27(1)(a) and 27(1)(c) were cognizable having regard to the term of imprisonment provided as punishment for the same. Nothing turned on the offence being cognizable except apprehension of the offender without the aid of a warrant. He would submit that in regard to the offences embra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Government may by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Inspectors for such areas as may be assigned to them by the Central Government or the State Government, as the case may be. (2) The powers which may be exercised by an Inspector and the duties which may be performed by him, the drugs or [c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to satisfy himself that the conditions of the licences are being observed; (3) to procure and send for test or analysis, if necessary, imported packages which he has reason to suspect contain drugs being sold or stocked or exhibited for sale in contravention of the provisions of the Act or Rules thereunder; (4) to investigate any complaint in writing which may be made to him; (5) to institute prosecutions in respect of breaches of the Act and Rules thereunder; (6) to maintain a record of all inspections made and action taken by him in the performance of his duties, including the taking of samples and the seizure of stocks, and to submit copies of such record to the controlling authority; (7) to make such enquiries and inspections as may be necessary to detect the sale of drugs in contravention of the Act; (8) when so authorized by the State Government, to detain imported packages which he has reason to suspect contain drugs, the import of which is prohibited. Rule (52) deals with duties of Inspectors in regard to manufacturer. It reads as follows: 52. Duties of inspectors specially authorised to inspect the manufacture of drugs or cosmetics. --Subject to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson, any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed; or (ii) enter and search any place in which he has reason to believe that an offence under this Chapter has been, or is being, committed; or (iii) stop and search any vehicle, vessel or other conveyance which, he has reason to believe, is being used for carrying any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed, and order in writing the person in possession of the drug or cosmetic in respect of which the offence has been, or is being, committed, not to dispose of any stock of such drug or cosmetic for a specified period not exceeding twenty days, or, unless the alleged offence is such that the defect may be removed by the possessor of the drug or cosmetic, seize the stock of such drug or cosmetic and any substance or Article by means of which the offence has been, or is being, committed or which may be employed for the commission of such offence; (cc) examine any record, register, document or any other material object found with any person, or in any place, vehicle, vessel or other conveyance referred to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r distribution, or sells, or stocks or exhibits or offers for sale or distributes,- (a) any drug deemed to be adulterated Under Section 17A or spurious Under Section 17B and which when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Section 320 of the Indian Penal Code (45 of 1860), solely on account of such drug being adulterated or spurious or not of standard quality, as the case may be, shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than ten lakh rupees or three times value of the drugs confiscated, whichever is more: Provided that the fine imposed on and released from, the person convicted under this Clause shall be paid, by way of compensation, to the person who had used the adulterated or spurious drugs referred to in this clause: Provided further that where the use of the adulterated or spurious drugs referred to in this Clause has caused t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rupees]; (d) any drug, other than a drug referred to in Clause (a) or Clause (b) or Clause (c), in contravention of any other provision of this Chapter or any Rule made thereunder, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine which shall not be less than twenty thousand rupees: Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year. 15. Sections 27A, 28, 28A, 28B and 29 provide for other offences. Section 30 contemplates penalty in the case of subsequent offences. Section 31 deals with confiscation. Section 32 which is at the center stage of the controversy reads as follows: 32. Cognizance of offences. -- (1) No prosecution under this Chapter shall be instituted except by-- (a) an Inspector; or (b) any gazetted officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government or a State Government by a general or special order made in this behalf by that Government; or (c) the person aggrieved; or (d) a recogni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code of Criminal Procedure, 1973 (2 of 1974),-- (a) every offence, relating to adulterated or spurious drug and punishable under Clauses (a) and (c) of Sub-section (1) of Section 13, Clause (a) of Sub-section (2) of Section 13, Sub-section (3) of Section 22, Clauses (a) and (c) of Section 27, Section 28, Section 28A, Section 28B and Sub-sections (1) and (2) of Section 30 and other offences relating to adulterated drugs or spurious drugs, shall be cognizable. (b) no person Accused, of an offence punishable under Clauses (a) and (c) of Sub-section (1) of Section 13, Clause (a) of Sub-section (2) of Section 13, Sub-section (3) of Section 22, Clauses (a) and (c) of Section 27, Section 28, Section 28A, Section 28B and Sub-sections (1) and (2) of Section 30 and other offences relating to adulterated drugs or spurious drugs, shall be released on bail or on his own bond unless-- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force. Non-bailable offence means any other offence. 'Cognizable offence' is defined in Section 2(c). It reads as follows: 2(c) cognizable offence means an offence for which, and cognizable case means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant; (Emphasis supplied) 20. Section 2(d) defines 'complaint'. It reads as follows: 2(d) complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant; 21. Section 2(h) defines investigation as follows: 2(h) investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this Section to investigate. (3) Any Magistrate empowered Under Section 190 may order such an investigation as above-mentioned. (Emphasis supplied) 24. Section 157 provides for Procedure for Investigation. The limitations for the use of the statement given Under Section 161 are spelt out in Section 162. Section 173 provides for the report to be given on completion of investigation. 25. Chapter XIV deals with the Conditions requisite for Initiation of Proceedings . Section 190 reads as follows: 190. Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Indian Penal Code. The second part, as it were, deals with classification of offences against other laws. It reads as follows: Classification of Offences against other laws Offence Cognizable or non-cognizable Bailable or non-bailable By what Court triable 1 2 3 4 If punishable with death, imprisonment for life, or imprisonment for more than 7 years; Cognizable Non-bailable Court of Session. If punishable with imprisonment for 3 years, and upwards but not more than 7 years. Cognizable Non-bailable Magistrate of the first class. If punishable with imprisonment for less than 3 years or with fine only. Non-cognizable Bailable Any Magistrate. 28. Section 4(2) of the Code of Criminal Procedure declares that all offences under any law other than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 State Government authorised in writing by the respective Government by a general or special order made in this behalf by that Government (3) the person aggrieved (4) a recognised consumer association whether such person is a member of that association or not. Section 32 further proclaims that unless it is otherwise provided, no court inferior to a court of session shall try an offence punishable under Chapter IV. Section 32(3) makes it clear that nothing in chapter IV would stand in the way of the person being prosecuted against under any other law for any act or omission which constitutes an offence against this Chapter. Section 32 was substituted by Act 22 of 2008. Prior to the substitution it read as follows: 32. Cognizance of off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in mind when Section 32, which provides, inter alia, that an Inspector can set the ball rolling, is considered. The Inspectors, under the Act, are to possess the prescribed qualifications. The qualifications bear a nexus with the performance of the specialised duties which are to be performed under the Act. Apparently, knowledge about the drugs and cosmetics goes a long way in equipping them to perform their multifarious functions. Section 22 clothing the Inspector with powers must also be viewed thus in the context of the legislative value judgment that a complaint is to be moved by the Inspector under the Act and not by a Police Officer under the Code of Criminal Procedure The Inspector is expected to inspect premises where drugs and cosmetics are being man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 Code of Criminal Procedure to the court. Under Section 190 of the Code of Criminal Procedure, the court may take cognizance on the basis of the police report. Such a procedure is alien to Section 32 of the Act. In other words, it is not open to the Police Officer to submit a report Under Section 173 of the Code of Criminal Procedure in regard to an offence under Chapter IV of the Act Under Section 32. In regard to offences contemplated Under Section 32(3), the Police Officer may have power as per the concerned provisions. Being a special enactment, the manner of dealing with the offences under the Act, would be governed by the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 exclusively triable by a Court of Sessions, the inquiry can be conducted only by a Magistrate himself. It is not open to him to cause an investigation be it by a Police Officer or any other person. b. In regard to the inquiry so conducted by him, he must call upon the complainant to produce all his witnesses and they must be examined not on the basis of any affidavit, and not without the support of an oath but the examination must be under an oath. It is to be remembered that under the provisions existing under the previous Code, an elaborate preliminary inquiry where even an Accused had right of cross-examination of witnesses, was contemplated at the hands of the Magistrate before the committal order was passed. This no longer survives after the amendment. 42. Offences exclusively t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplaint 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 a case where the Officer finds that an offence has been committed. It is named a final report where no basis is found for prosecution. On the strength of the same, he invites the court concerned to take cognizance. If Under Section 32 of the Act, the Police Officer has no authority to file a report, he questions the actions of the Police Officer as one which is bound to die a natural death. He would submit that declaring certain offences Under Section 36AC cognisable, is only to empower the arrest of the Accused. 45. It may be noticed at this juncture, that the Act does contemplate arrest. Section 36AC clearly declares that certain offences are non-bailable. Section 36AC(b) proclaims that no person Accused of the offences mentioned therein shall be released on bail or on his own bond u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 records in its possession to such person. 48. The Appellants were Medical Practitioners. An FIR was registered against them Under Section 420 of the Indian Penal Code and Sections 18 and 19 of the TOHO Act at the Police Station. The investigation was transferred to the CBI, Respondent in the case. The CBI registered another FIR which included Sections 18 and 19 of the TOHO Act. Appellant No. 2 was arrested and produced before the Magistrate. Appellant No. 1 surrendered. The Respondent filed a complaint Under Section 22 of TOHO Act pointing out that the period of 90 days from the detention expired on 07.05.2008, Appellant No. 2 filed an application for grant of bail within the meaning of Section 167(2) of the Code of Criminal Procedure. It was, while considering the same, this Court held, inter alia, as follows: 19. TOHO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn 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 provisions of TOHO, filing of a police report by necessary implication is necessarily forbidden, the question of its submitting a report in terms of Sub-section (2) of Section 173 of the Code did not and could not arise. In other words, if no police report could be filed, Sub-section (2) of Section 167 of the Code was not attracted. xxx xxx xxx xxx 28. To put it differently, upon completion of the investigation, an authorised officer could only file a complaint and not a police report, as a specific bar has been created by Parliament. In that view of the matter, the police report being not a complaint and vice versa, it was obligatory on the part of the Respondent to choose the said method invoking the jurisdiction of the Magistrate concerned for taking cognizance of the offence only in the manner laid down therein and not by any other mode. The procedure laid dow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) no investigation of an offence under the provisions of this Act shall be carried out by a police officer below the rank of the Deputy Superintendent of Police. (2) No Special Court shall take cognizance of any offence under this Act without the previous sanction of the police officer not below the rank of Additional Director General of Police. 51. The Full Bench which was constituted to hear the matter, by a majority, took the view that a private complaint Under Section 9, was not trammelled by the requirement Under Section 23. This Court held, inter alia, as follows: 67. We are also inclined to hold that in view of the provisions of Section 25 of MCOCA, the provisions of the said Act would have an overriding effect over the provisions of the Code of Criminal Procedure and the learned Special Judge would not, therefore, be entitled to invoke the provisions of Section 156(3) Code of Criminal Procedure for ordering a special inquiry on a private complaint and taking cognizance thereupon, without traversing the route indicated in Section 23 of MCOCA. In other words, even on a private complaint about the commission of an offence of organised crime under MCOCA cognizanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rank of Deputy Superintendent of Police and above. This is apart from the prohibition against taking cognizance of an offence under the said Act without the previous sanction of the Police Officer not below the rank of Additional Director General of Police. 54. The decision of this Court in H.N. Rishbud and Inder Singh v. State of Delhi, ETC. AIR 1955 SC 196 dealt with a case under the Prevention of Corruption Act, 1947. Investigation in the said case was undertaken by an Officer without authorisation by the Magistrate Under Section 5(4) of the Prevention of Corruption Act, 1947. Cognizance was taken and the trial went on. The Accused thereupon pointed out the flaw in the investigation. It is in the said circumstances, this Court proceeded to deal with what is investigation, inter alia: 8. ... Thus, under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the Accused) and the redu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dealing with the argument based on prohibition against prosecution and punishment for the same offence flowing from Article 20(2) of the Constitution of India. We notice paragraphs 20, 21 and 41 of Vimal Kumar Surana and Anr. (supra): 20. In other words, if the particular act of a member of the Institute or a non-member or a company results in contravention of the provisions contained in Section 24 or Sub-section (1) of Sections 24-A, 25 or 26 and such act also amounts to criminal misconduct which is defined as an offence under Indian Penal Code, then a complaint can be filed by or under the order of the Council or of the Central Government Under Section 28, which may ultimately result in imposition of the punishment prescribed Under Section 24 or Sub-section (2) of Sections 24-A, 25 or 26 and such member or non-member or company can also be prosecuted for any identified offence under Indian Penal Code. 21. The object underlying the prohibition contained in Section 28 is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s stated above, arose out of the order [Sanjay v. State, (2009) 109 DRJ 594] passed by the Delhi High Court. The Delhi High Court formulated three issues for consideration: (1) Whether the police could have registered an FIR in the case; (2) Whether a cognizance can be taken by the Magistrate concerned on the basis of police report; and (3) Whether a case of theft was made out for permitting registration of an FIR Under Sections 379/411 of the Penal Code. 9. The Delhi High Court after referring various provisions on the MMDR Act vis-o?=-vis the Code of Criminal Procedure disposed of the application directing the Respondent to amend the FIR, which was registered, by converting the offence mentioned therein Under Sections 379/411/120-B/34 Indian Penal Code to Section 21 of the MMDR Act. The High Court in para 18 of the impugned order held as under: 18. In view of the aforesaid and taking into consideration the provisions contained Under Section 21(6) of the said Act I hold that: (i) The offence under the said Act being cognizable offence, the police could have registered an FIR in this case; (ii) However, so far as taking cognizance of an offence under the said A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the ecosystem of the rivers and safety of bridges. It also weakens riverbeds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the groundwater levels. 70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other Sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code of Criminal Procedure. 73. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the Act vis-o?=-vis the Code of Criminal Procedure and the Penal Code, we are of the definite opinion that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the riverbeds without consent, which is the property of the State, is a distinct offence under Indian Penal Code. Hence, for the commission of offence Under Section 378 Indian Penal Code, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act. Consequently, the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the Magistrates concerned to proceed accordingly. (Emphasis supplied) 62. Chapter XII of the Code of Criminal Procedure carries the chapter heading Information to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red Under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender; Provided that- (a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot; (b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. (2) In each of the cases mentioned in Clauses (a) and (b) of the proviso to Sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry inquiry or otherwise to dispose of the case in the manner provided in the Code. It is clear that the purpose of Section 157 is to hold the police officer accountable to keep informed the Magistrate. It acts as an assurance that the reports are not tampered, and that the rights of the Accused are sought to be secured. The purport of Section 159 is also to enable the Magistrate to exercise control over the investigation. All these aspects are irrelevant and out of bounds both for the police officer and the Magistrate in respect of an offence falling under chapter IV of the Act. 64. Section 160 refers to investigation under the Chapter, viz., Chapter XII. Section 161 speaks about the examination of witnesses and how the statements are to be reduced to writing. Again, Section 161 speaks about an investigation carried out under Chapter XII. The use to which statements Under Section 161 can be put and the limitation on the same are spelt out in Section 162 Code of Criminal Procedure Reverting back to Section 157, we have taken note of the requirement about the police officer reporting to the Magistrate about the reason to suspect entertained by the police officer about the commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This key requirement is absent in the case of an offence falling under Chapter IV of the Act. The link therefore snaps. Section 173 speaks about the report on completion of the investigation for the police officer. Section 173 (5) is to be read with Section 170, that is to say, in a case where there is sufficient material for prosecuting the concerned person, the documents and the statements of witnesses are to be forwarded to the Magistrate as provided therein. We have already noted Section 190 of the Code of Criminal Procedure. Sections 154, 156, 157, 158, 159, 160, 161, 170 and 173 are part of a scheme of provisions geared to empower and require investigation of cognisable offences which are to culminate in a police report within the meaning of Section 190(b) of the Code of Criminal Procedure However, what is applicable in respect of offences under Chapter IV of the Act is not 190 of the Code of Criminal Procedure but Section 32 of the Act which does not permit cognizance being taken on a police report. The entire exercise of a police officer proceeding on a basis of a FIR becomes futile. It is not contemplated in law. It therefore becomes unauthorised. IMPACT OF LALITA KUM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , inter alia, as follows: 10. It is true that territorial jurisdiction also is prescribed under Sub-section (1) to the extent that the officer can investigate any cognizable case which a court having jurisdiction over the local area within the limits of such police station would have power to enquire into or try under the provisions of Chapter XIII. However, Sub-section (2) makes the position clear by providing that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered to investigate. After investigation is completed, the result of such investigation is required to be submitted as provided Under Sections 168, 169 and 170. Section 170 specifically provides that if, upon an investigation, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the Accused to a Magistrate, such officer shall forward the Accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the Accused or commit for trial. Further, if the investigatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Act, he must promptly notify the concerned Drugs Inspector. POWER TO ARREST UNDER THE ACT 72. One of the reliefs which is sought by the first Respondent-writ Petitioner was a direction not to arrest him. The Act does not expressly confer upon the Inspector the power to arrest. This brings up the issue, therefore, of the person empowered to arrest. 73. Perusal of Section 36AC of the Act makes it clear that arrest is contemplated under the Act. Conditions have been imposed for grant of bail as enacted in Section 36AC which we have already referred. If the Inspector under the Act has no authority to carry out the arrest, there cannot be a situation where arrest is in the contemplation of the law giver and yet there is no person who can effectuate that arrest. 74. The further question which would therefore arise is, the impact of finding that arrest can be effected by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier. 79. When this Court laid down in paragraph-37 that the requirements laid down by this Court would apply with equal force to other governmental agencies, to which reference was made earlier, the Court had in mind the following statements in paragraph-30 of the Judgment: 30. Apart from the police, there are several other governmental authorities also like Directorate of Revenue Intelligence, Directorate of Enforcement, Coastal Guard, Central Reserve Police Force (CRPF), Border Security Force (BSF), the Central Industrial Security Force (CISF), the State Armed Police, Intelligence Agencies like the Intelligence Bureau, RAW, Central Bureau of Investigation (CBI), CID, Traffic Police, Mounted Police and ITBP, which have the power to detain a person and to interrogate him in connection with the investigation of economic offences, offences under the Essential Commodities Act, Excise and Customs Act, Foreign Exchange Regulation Act etc. ...... No doubt, these are all cases where express power of arrest was conferred on those Authorities under the conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-11-2010), deals with the power of the Police Officer to arrest without warrant. It reads as follows after substitution: 41. When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person- 1(a) who commits, in the presence of a police officer, a cognizable offence; (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely: (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; (ii) the police office is satisfied that such arrest is necessary- (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested without a warrant by the officer who issued the requisition. 3[(2) Subject to the provisions of Section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.]. 83. Section 41A of the Code of Criminal Procedure, 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 Code of Criminal Procedure, 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 Code of Criminal Procedure, 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 Code of Criminal Proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout warrant any person whom he is authorised to arrest, pursue such person into any place in India. 85. The person arrested is not to be subjected to more restraint than is necessary to prevent his escape, declares Section 49 of the Code of Criminal Procedure 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 Code of Criminal Procedure 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 Code of Criminal Procedure, 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. 86. Section 54 of the Code of Criminal Procedure declares that when any person is arrested, he shall be examined by a Medical Officer. Section 54A of the Code of Criminal Procedure, inserted w.e.f. 23.06.2006, specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in such a situation, if there are grounds for believing that the accusation or information is well founded, the person arrested, is to be forwarded to the Magistrate, inter alia. Section 167 empowers Magistrate to order remand of the Accused person, as provided therein. A FEW WORDS ABOUT THE PROVISIONS AS TO BAIL 88. Chapter XXXIII of the Code of Criminal Procedure deals with Bail. Section 436 of the Code of Criminal Procedure 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 Code of Criminal Procedure provides for Bail in the case of a non-bailable offence. It, essentially, deals with a situation where a person is brought before a court other than the High Court or Court of Sessions. There are certain restrictions and conditions to be fulfilled in the matter of grant of Bail on the Court, as is stated therein. 89. Section 439 of the Code of Criminal Procedure, confers special powers on the High Court or the Court of Sessions in regard to Bail. It reads as follows: 439. Special powers of High Court or Court of Session regarding bail. (1) A H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs. (2) The limitation on granting of bail specified in Clause (b) of Sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. (3) Nothing contained in this Section shall be deemed to affect the special powers of the High Court regarding bail Under Section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under Clause (b) of Sub-section (1) of that Section as if the reference to Magistrate in that Section includes also a reference to a Special Court designated Under Section 36AB. 91. The learned Counsel for the Union of India would submit that the Inspector, Under Section 32 of the Act, cannot be treated as a Police Officer who has the power to arrest under the Code of Criminal Procedure Reliance is placed on Badaku Joti Savant v. State of Mysore (1966) 3 SCR 698. Similarly, support is drawn from R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 36AC. It is pointed out that the offences set-out in Section 36AC, other than the offences relating to adulterated drugs and spurious drugs, could not have been considered cognizable in terms of Schedule I Part 2 of the Code of Criminal Procedure Except Section 27A and 27C and Section 30(1) of the Act, all other provisions mentioned in Section 36AC of the Act, were non-cognizable offences as per Schedule I Part 2 of the Code of Criminal Procedure But having regard to the amended Section 36AC of the Act, it is the special provisions in Section 36AC, which will prevail. THE SUBMISSIONS OF THE LEARNED AMICUS IN REGARD TO ARREST. 93. When the Court pointed out that there is no express power on the Drugs Inspector under the Act to arrest and when an arrest is effected, whether it becomes necessary to register an FIR Under Section 154 of the Code of Criminal Procedure The learned Amicus Curiae submitted as follows: He agreed that for a person to be released on Bail, he should have been remanded to custody. He should further have been arrested Under Section 157 of the Code of Criminal Procedure in order that he be remanded Under Section 167 of the Code of Criminal Procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under Section 173(2) of the Code of Criminal Procedure It is difficult to harmonise Section 32 and Section 36AC of the Act, it is pointed out. The learned Amicus Curiae draws our attention to the following observations of this Court in Sultana Begum v. Prem Chand Jain (1997) 1 SCC 373: 11. The statute has to be read as a whole to find out the real intention of the legislature. 12. In Canada Sugar Refining Co. v. R. [1898 AC 735 : 67 LJPC 126], Lord Davy observed: Every Clause of a statute should be construed with reference to the context and other Clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter. 13. This Court has adopted the same Rule in M. Pentiah v. Muddala Veeramallappa [AIR 1961 SC 1107 : (1961) 2 SCR 295]; Gammon India Ltd. v. Union of India [ (1974) 1 SCC 596 : 1974 SCC (L S) 252 : AIR 1974 SC 960]; Mysore SRTC v. Mirja Khasim Ali Beg [ (1977) 2 SCC 457 : 1974 SCC (L S) 282 : AIR 1977 SC 747]; V. Tulasamma v. Sesha Reddy [(1977) 3 SCC 99 : AIR 1977 SC 1944]; Punjab Beverages (P) Ltd. v. Suresh Chand [ (1978) 2 SCC 144 : 1978 SCC (L S) 165 : AIR 1978 SC 995]; C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood Adulteration Act, Income-Tax Act, Food Safety and Standards Act, Customs Act, etc., the Police will arrest Under Section 41 of the Code of Criminal Procedure, register a case and file a Final Report. The special provisions of those Acts, restricting cognizance only on the basis of a complaint, would be rendered nugatory. 97. The learned Amicus Curiae would also submit that though there is no specific provision empowering the Drugs Inspector to arrest, Section 22(1)(d) of the Act may be interpreted and it be held that the Inspector has power to arrest. In this regard, reliance is placed on Deepak Mahajan (supra). ANALYSIS 98. The arrest of a person involves an encroachment on 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. 99. Under the Act, as noted by us, and bearing in mind the law laid down in connection with similar Statutes, we have no hesitation in rejecting the argument of the Petitioner that aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt). Section 25 of the Evidence Act renders inadmissible a confession made to a Police Officer. The question here is not whether the Drugs Inspector is a Police Officer and the question here is whether he is empowered to carry out arrest of a person under the Act. Still further, the question to be answered is, whether a Police officer under the Code of Criminal Procedure is deprived of his power, under the Code of Criminal Procedure, to arrest. These are the questions to be answered by us. 102. The Court must start with the presumption that Parliament, which is author of the Code of Criminal Procedure and also the Act in question, was aware of the provisions of the Code of Criminal Procedure, 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 in the manner which we have referred to. The Legislature has not, in the Act, yet conferred express power on the Drugs inspector, to arrest. However, Section 22(1)(d) of the Act, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1), it is not an indispensable pre-requisite condition that in all circumstances, the arrest should have been effected only by a police officer and none else and that there must necessarily be records of entries of a case diary. Therefore, it necessarily follows that a mere production of an arrestee before a competent Magistrate by an authorised officer or an officer empowered to arrest (notwithstanding the fact that he is not a police officer in its stricto sensu) on a reasonable belief that the arrestee has been guilty of an offence punishable under the provisions of the special Act is sufficient for the Magistrate to take that person into his custody on his being satisfied of the three preliminary conditions, namely (1) the arresting officer is legally competent to make the arrest; (2) that the particulars of the offence or the accusation for which the person is arrested or other grounds for such arrest do exist and are well-founded; and (3) that the provisions of the special Act in regard to the arrest of the persons and the production of the arrestee serve the purpose of Section 167(1) of the Code. (Emphasis supplied) 104. Section 35(2) in FERA and Section 104(2) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ERA and Customs Act are vested with certain powers similar to the powers of police officers. 106. Section 167(1) of the Code of Criminal Procedure contemplates forwarding the diary which was interpreted to be not the general diary and the special diary Under Section 167(2) of the Code of Criminal Procedure In regard to the enactments in question, this Court held as follows: 113. Though an authorised officer of Enforcement or Customs is not undertaking an investigation as contemplated under Chapter XII of the Code, yet those officers are enjoying some analogous powers such as arrest, seizures, interrogation etc. Besides, a statutory duty is enjoined on them to inform the arrestee of the grounds for such arrest as contemplated Under Article 22(1) of the Constitution and Section 50 of the Code. Therefore, they have necessarily to make records of their statutory functions showing the name of the informant, as well as the name of the person who violated any other provision of the Code and who has been guilty of an offence punishable under the Act, nature of information received by them, time of the arrest, seizure of the contraband if any and the statements recorded during the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under Section 173 of the Code and becomes the complainant whereas the prosecuting agency under the special Acts files a complaint as a complainant i.e. Under Section 61(ii) in the case of FERA and Under Section 137 of the Customs Act. To say differently, the police officer after consummation of the investigation files a report Under Section 173 of the Code upon which the Magistrate may take cognizance of any offence disclosed in the report Under Section 190(1)(b) of the Code whereas the empowered or authorised officer of the special Acts has to file only a complaint of facts constituting any offence under the provisions of the Act on the receipt of which the Magistrate may take cognizance of the said offence Under Section 190(1)(a) of the Code. After taking cognizance of the offence either upon a police report or upon receiving a complaint of facts, the Magistrate has to proceed with the case as per the procedure prescribed under the Code or under the special procedure, if any, prescribed under the special Acts. Therefore, the word 'investigation' cannot be limited only to police investigation but on the other hand, the said word is with wider connotation and flexible so as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 111. We are faced with a situation which projects a discord between two Statutes, viz., the Code of Criminal Procedure and the Act, and the only silver-lining appearing on the horizon, is the ambit of the power Under Section 22(1)(d) of the Act. We may recapitulate the said provision, at this juncture. It reads as follows: 22. Powers of Inspectors.-(1) Subject to the provisions of Section 23 and of any Rules made by the Central Government in this behalf, an Inspector may, within the local limits of the area for which he is appointed,- xxx xxx xxx xxx (d) Exercise such other powers as may be necessary for carrying out the purposes of this Chapter or any Rules made there under. Apart from the same, there is no exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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-section (4), all other offences under the Act shall be non-cognizable. (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974) an offence punishable Under Section 135 relating to-- (a) evasion or attempted evasion of duty exceeding fifty lakh rupees; or (b) prohibited goods notified Under Section 11 which are also notified under Sub-clause (C) of Clause (i) of Sub-section (1) of Section 135; or (c) import or export of any goods which have not been declared in accordance with the provisions of this Act and the market price of which exceeds one crore rupees; or (d) fraudulently availing of or attempt to avail of drawback or any exemption from duty provided under this Act, if the amount of drawback or exemption from duty exceeds f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 arrest on a Police Officer to arrest even in regard to a non-cognizable offence in the circumstances mentioned therein without a warrant. 118. Finally, Section 6 of The Railway Property (Unlawful Possession) Act, 1966, read as follows: 6. Power to arrest without warrant.--Any superior officer or member of the Force may, without an order from a Magistrate and without a warrant, arrest any person who has been concerned in an offence punishable under this Act or against whom a reasonable suspicion exists of his having been so concerned. Here, it is relevant to notice that the persons empowered are members of the force, which is defined as being members of the force and the word 'force' is defined as the Railway protection force constituted under the Railway Protection Force Act, 1957. It is an armed force. 119. In the Foreign Exchange Man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Haryana High Court had to answer the question as to whether the power of arrest, Under Section 13 of the Act, could be exercised without a warrant, in view of the fact that Under Section 9A, the offence was declared as non-cognizable. The Court took the view that Section 13 embodied a substantive power. It held, inter alia, as follows: 21. In our view, Section 13 embodies a substantive power. It confers the power to arrest. The procedural safeguards have been protected by Section 18. This provision merely regulates the exercise of power Under Section 13. It only provides that the searches and arrests under the Central Excise Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure ..... In other words, an officer of the Central Excise shall make the arrest in the manner laid down in Section 46 of the Code of Criminal Procedure. He shall actually ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offences were non-cognizable, were they bailable as well? Section 9A, as it was considered by this Court, read as follows: 9A. Certain offences to be non-cognizable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), offences Under Section 9 shall be deemed to be non-cognizable within the meaning of that Code. (2) Any offence under this Chapter may, either before or after the institution of prosecution, be compounded by the Chief Commissioner of Central Excise on payment, by the person Accused of the offence to the Central Government, of such compounding amount and in such manner of compounding, as may be prescribed. Provided that nothing contained in this Sub-section shall apply to- (a) a person who has been allowed to compound once in respect of any of the offences under the provisions of Clause (a), (b), (bb), (bbb), (bbbb) or (c) of Sub-section (1) of Section 9; (b) a person who has been Accused of committing an offence under this Act which is also an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); (c) a person who has been allowed to compound once in respect of any offence under thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts made under that Code. 129. Equally of interest, are the provisions contained in Sections 19, 20 and 21: 19. Disposal of persons arrested.-Every person arrested under this Act shall be forwarded without delay to the nearest Central Excise Officer empowered to send persons so arrested to a Magistrate, or, if there is no such Central Excise Officer within a reasonable distance, to the officer in charge of the nearest police station. 20. Procedure to be followed by officer in charge of police station.-The officer in charge of a police station to whom any person is forwarded Under Section 19 shall either admit him to bail to appear before the Magistrate having jurisdiction, or in default of bail forward him in custody to such Magistrate. 21. Inquiry how to be made by Central Excise Officers against arrested persons forwarded to them Under Section 19.-(1) When any person is forwarded Under Section 19 to a Central Excise Officer empowered to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to inquire into the charge against him. (2) For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompounding amount and in such manner of compounding as may be prescribed: Provided that nothing contained in this Sub-section shall apply to--- (a) a person who has been allowed to compound once in respect of any of the offences under the provisions of Clause (a), (b), (bb), (bbb), (bbbb) or (c) of Sub-section (1) of Section 9; (b) a person who has been Accused of committing an offence under this Act which is also an offence under the Narcotic Drugs and Psychotropic Substance Act, 1985 (61 of 1985); (c) a person who has been allowed to compound once in respect of any of the offence under this Chapter for goods of value exceeding rupees one crore; (d) a person who has been convicted by the court under this Act on or after the 30th day of December, 2005. (Emphasis supplied) 131. The result would appear to be that acknowledging the effect of making the offences being non-cognizable to be to limit the power of the authorities under the Act for effecting arrest under the Act, to require a warrant, certain offences were declared to be cognizable as noticed in Section 9A, as amended after the Judgment in Om Parkash (supra). The resultant position after the amendment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conferred on the Drugs Inspector. Section 34AA, reads as follows: 34AA.-Penalty for vexatious search or seizure.--Any Inspector exercising powers under this Act or the Rules made thereunder, who,-- (a) without reasonable ground of suspicion searches any place, vehicle, vessel or other conveyance; or (b) vexatiously and unnecessarily searches any person; or (c) vexatiously and unnecessarily seizes any drug or cosmetic, or any substance or article, or any record, register, document or other material object; or (d) commits, as such Inspector, any other act, to the injury of any person without having reason to believe that such act is required for the execution of his duty, shall be punishable with fine which may extend to one thousand rupees. There is no reference to arrest forming the subject matter of penalty. 135. In contrast, we must notice Section 22 of the Central Excise Act, 1944, reads as follows: 22. Vexatious search, seizure, etc., by Central Excise Officer.--Any Central Excise or other officer exercising powers under this Act or under the Rules made thereunder who-- (a) without reasonable ground of suspicion searches or causes to be searched any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty Under Rule 51(5) to institute prosecution in respect of breaches of the Act and the Rules thereunder. He is also duty-bound Under Rule 51(7) to make inquiries and inspections as may be necessary to detect sale of drugs in contravention of the Act. Under Rule 52, in regard to manufacture of drugs, it is again the duty to institute prosecution for breaches besides making inspections of all premises. This is having regard to both his qualifications and also the powers conferred on him. Section 23 of the Act, undoubtedly, is the procedure to be followed by the Inspector. We are, therefore, to ascertain the meaning of the expression other powers , which are essential for carrying out the object of Chapter IV and the Rules made thereunder. The Legislature has not given any hint, intending to limit the scope of the residuary powers. No doubt, the Act is a pre-Independence Act. If we interpret that it is a Drugs Inspector, acting Under Section 22 of the Act, who alone can investigate offences falling under Chapter IV of the Act and there is no power for the Police Officer under the Code of Criminal Procedure to investigate under the Act or to file a Report Under Section 173 of the Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be of any assistance to the Public Prosecutor and, therefore, to the Court in the disposal of an application for bail? In other words, it would be based on the records of investigation and material collected by the investigating officer that a Court in a case would decide as to whether bail is to be granted or not. How would the police officer seek a remand for carrying out investigation which he cannot do? If the Act and the Rules do not contemplate investigation by a Police Officer, then, conferring the power of arrest on the Police Officer, would, in fact, frustrate the working of the Act. On the other hand, if it is the Drugs Inspector who can arrest, the following consequences would follow: a. He has the requisite technical qualifications to properly investigate and prosecute the offender. b. He would be able to make adequate entries in whatever document he has to maintain as a part of investigation and it would facilitate a proper and fair consideration of an application for bail within the meaning of Section 36AC of the Act and also facilitate a request for remand Under Section 167 of the Code of Criminal Procedure. 139. Declaring the power to arrest with the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diately taken where only offences under Chapter IV are made out. 142. As far as the arrest contemplated Under Section 41 of the Code of Criminal Procedure is concerned, in case a cognizable offence, falling under Chapter IV of the Act, is committed, either in the presence of the Drugs Inspector, or in respect of which offence, a Police Officer would have power to arrest, as provided therein, viz., covered by the situations contemplated Under Section 41(ba), the Drugs Inspector would be entitled to effect the arrest. We are arriving at this conclusion on the basis that since the procedure under the Code of Criminal Procedure is to be read as applicable, except to the extent that a different procedure is to be provided under the Act, and since there is no procedure or power otherwise provided in the Act in regard to arrest, the powers and procedure available to a Police Officer, with the limitations on the said power, as laid down in D.K. Basu (supra), as also as contained in the Code of Criminal Procedure, would be applicable. 143. By way of following Deepak Mahajan (supra), we hold that the Drugs Inspector, under the Act, is invested with certain powers similar to a Police Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein. We make it clear that the Drugs Inspector must, apart from other relevant provisions of the Code of Criminal Procedure, 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. 147. It has been brought to our notice that FIRs have been filed in regard to offences under Chapter IV of the Act. In the view we have taken, no further investigation can be done by the Police Officer. However, it is in the interest of justice that the FIRs are made over by the Police Officers to the concerned Drugs Inspector at the earliest. We are persuaded to issue such directions in the exercise of our powers Under Article 142 of the Constitution of India. 148. It would appear that on an understanding of the provisions, arrests would have been effected by Police Officers in regard to the cognizable offences under Chapter IV of the Act. Having regard to the fact that we are resolving this controversy on a conspectus of the various provisions of the Act and the Code of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on the same in accordance with the law. We must record that we are resorting to our power Under Article 142 of the Constitution of India in this regard. VI. Further, we would be inclined to believe that in a number of cases on the understanding of the law relating to the power of arrest as, in fact, evidenced by the facts of the present case, police officers would have made arrests in regard to offences under Chapter IV of the Act. Therefore, in regard to the power of arrest, we make it clear that our decision that Police Officers do not have power to arrest in respect of cognizable offences under Chapter IV of the Act, will operate with effect from the date of this Judgment. VII. We further direct that the Drugs Inspectors, who carry out the arrest, must not only report the arrests, as provided in Section 58 of the Code of Criminal Procedure, but also immediately report the arrests to their superior Officers. 151. In view of our conclusions/directions and subject to the same, we would, on the facts, uphold the impugned Judgment and dismiss the Appeal. We record our appreciation for the enlightening submissions of the learned Amicus Curiae Shri. S. Nagamuthu. - - Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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