# UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS

- **Citation:** [2020] 10 S.C.R. 923
- **Court:** Supreme Court of India
- **Decided:** 2020-08-28
- **Case number:** Criminal Appeal No.200 of 2020
- **Bench:** Sanjay Kishan Kaul, K.M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-ashok-kumar-sharma-and-others-34202
- **Pages:** 120

## Headnote

Drugs and Cosmetics Act, 1940 - ss.22(1)(d), 32 - Cognizable
offences under Chapter IV - Prosecution and arrest - Held: In
view of s.32 and the scheme of CrPC, Police Officers cannot
prosecute offenders in regard to such offences - Only the persons
mentioned in s.32 are entitled to do the same - A Police Officer
cannot register a FIR u/s.154, CrPC, investigate such offences under
CrPC - In view of provisions of s.22(1)(d), an arrest can be made
by Drugs Inspector w.r.t such offences without any warrant and
otherwise treating it as a cognizable offence - Further directions
issued - Code of Criminal Procedure, 1973 - s.154 - Constitution
of India - Arts.142, 21, 22(1), (2).
Drugs and Cosmetics Act, 1940 - s.32, 18(a)(i), 27 - FIR for
offences u/ss.18(a)(i), 27 against respondent-owner of medical shop
- Quashed by High Court holding that s.32 being the mechanism
for prosecuting offences must be scrupulously observed and no
FIR can be registered under CrPC - Held: Impugned judgment
upheld - Code of Criminal Procedure, 1973.
Drugs and Cosmetics Act, 1940 - Object of - Held: 1940
Act purports to achieve the object of regulating the import,
manufacture, distribution, sale of drugs and cosmetics.
Drugs and Cosmetics Act, 1940 - Chapter III, IV, IV-A, V;
ss.3(b), 3(e), 13, 18, 21, 22-27, 27A, 28, 28A, 28B, 29, 30-32, 32B,
33H, 33M, 36, 36A, 36AB, 36AC, 36AD - Scheme of the Act -
Discussed.
Code of Criminal Procedure, 1973 - Chapters V, XI, XII, XIV,
XV, XVI - ss.4(2), 41, 154-162, 167, 169, 170, 173, 177, 178, 190,
193, 195, 198A, 199, 200, 202-204, 207-209 - Interplay between
provisions of CrPC and 1940 Act - Discussed - Drugs and Cosmetics
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Act, 1940 - ss.22, 32, 34AA, 36AC - Drugs and Cosmetics Rules -
rr.49, 51, 52.
Code of Criminal Procedure, 1973 - s.5 - Purport of - Held:
Purport of s.5 is that if any special law or local law for the time
being in force contemplates any special jurisdiction or power or
any special form of procedure, unless something contrary is found,
it is the provisions of the special law or the local law which would
prevail.
Drugs and Cosmetics Act, 1940 - s.2 - Purport of - Discussed
- Dangerous Drugs Act, 1930 - Code of Criminal Procedure, 1973.
Drugs and Cosmetics Act, 1940 - Chapter IV, s.32 - Held:
s.32 declares that prosecution under Chapter IV can be instituted
only by an Inspector, any gazetted officer of Central Government
or State Government authorised in writing by a general or special
order, the person aggrieved and a recognised consumer association
whether such person is a member of that association or not.
Drugs and Cosmetics Act, 1940 - Cognizance of offences -
Comparison between s.32, 1940 Act and s.190, CrPC - Discussed
- Code of Criminal Procedure, 1973 - s.190.
Code of Criminal Procedure, 1973 - Chapters XV, XVI -Held:
Chapters XV and XVI must be followed in regard to even offences
falling under Chapter IV, 1940 Act - Drugs and Cosmetics Act,
1940 - Chapter IV.
Code of Criminal Procedure, 1973 - s.202(1), (2) - Effect of
- Discussed.
Drugs and Cosmetics Act, 1940 - Cognizable offences under
Chapter IV - Duty of police officer u/s.154, CrPC irrespective of
impact of territorial jurisdiction - Discussed - Code of Criminal
Procedure, 1973 - s.154.
Code of Criminal Procedure, 1973 - s.170 - Requirement for
invoking - Held: Cardinal requirement to invoke s.170 is availability
of power with the Magistrate to take cognizance upon a police
report - This key requirement is absent in case of an offence falling
u/Chapter IV, 1940 Act- Drugs and Cosmetics Act, 1940.
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Drugs and Cosmetics Act, 1940 - s.22 - Powers of inspector
- Discussed.
Drugs and Cosmetics Act, 1940 - s.36AC - Held: Perusal of
s.36AC makes it clear that arrest is contemplated under the Act -
Conditions have been imposed for grant of bail as enacted in s.36AC.
Code of Criminal Procedure, 1973 - Power of arrest and bail
under - Chapte

## Text

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UNION OF INDIA
v.
ASHOK KUMAR SHARMA AND OTHERS
(Criminal Appeal No.200 of 2020)
AUGUST 28, 2020
[SANJAY KISHAN KAUL AND K.M. JOSEPH, JJ.]
Drugs and Cosmetics Act, 1940 - ss.22(1)(d), 32 - Cognizable
offences under Chapter IV - Prosecution and arrest - Held: In
view of s.32 and the scheme of CrPC, Police Officers cannot
prosecute offenders in regard to such offences - Only the persons
mentioned in s.32 are entitled to do the same - A Police Officer
cannot register a FIR u/s.154, CrPC, investigate such offences under
CrPC - In view of provisions of s.22(1)(d), an arrest can be made
by Drugs Inspector w.r.t such offences without any warrant and
otherwise treating it as a cognizable offence - Further directions
issued - Code of Criminal Procedure, 1973 - s.154 - Constitution
of India - Arts.142, 21, 22(1), (2).
Drugs and Cosmetics Act, 1940 - s.32, 18(a)(i), 27 - FIR for
offences u/ss.18(a)(i), 27 against respondent-owner of medical shop
- Quashed by High Court holding that s.32 being the mechanism
for prosecuting offences must be scrupulously observed and no
FIR can be registered under CrPC - Held: Impugned judgment
upheld - Code of Criminal Procedure, 1973.
Drugs and Cosmetics Act, 1940 - Object of - Held: 1940
Act purports to achieve the object of regulating the import,
manufacture, distribution, sale of drugs and cosmetics.
Drugs and Cosmetics Act, 1940 - Chapter III, IV, IV-A, V;
ss.3(b), 3(e), 13, 18, 21, 22-27, 27A, 28, 28A, 28B, 29, 30-32, 32B,
33H, 33M, 36, 36A, 36AB, 36AC, 36AD - Scheme of the Act -
Discussed.
Code of Criminal Procedure, 1973 - Chapters V, XI, XII, XIV,
XV, XVI - ss.4(2), 41, 154-162, 167, 169, 170, 173, 177, 178, 190,
193, 195, 198A, 199, 200, 202-204, 207-209 - Interplay between
provisions of CrPC and 1940 Act - Discussed - Drugs and Cosmetics
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Act, 1940 - ss.22, 32, 34AA, 36AC - Drugs and Cosmetics Rules -
rr.49, 51, 52.
Code of Criminal Procedure, 1973 - s.5 - Purport of - Held:
Purport of s.5 is that if any special law or local law for the time
being in force contemplates any special jurisdiction or power or
any special form of procedure, unless something contrary is found,
it is the provisions of the special law or the local law which would
prevail.
Drugs and Cosmetics Act, 1940 - s.2 - Purport of - Discussed
- Dangerous Drugs Act, 1930 - Code of Criminal Procedure, 1973.
Drugs and Cosmetics Act, 1940 - Chapter IV, s.32 - Held:
s.32 declares that prosecution under Chapter IV can be instituted
only by an Inspector, any gazetted officer of Central Government
or State Government authorised in writing by a general or special
order, the person aggrieved and a recognised consumer association
whether such person is a member of that association or not.
Drugs and Cosmetics Act, 1940 - Cognizance of offences -
Comparison between s.32, 1940 Act and s.190, CrPC - Discussed
- Code of Criminal Procedure, 1973 - s.190.
Code of Criminal Procedure, 1973 - Chapters XV, XVI -Held:
Chapters XV and XVI must be followed in regard to even offences
falling under Chapter IV, 1940 Act - Drugs and Cosmetics Act,
1940 - Chapter IV.
Code of Criminal Procedure, 1973 - s.202(1), (2) - Effect of
- Discussed.
Drugs and Cosmetics Act, 1940 - Cognizable offences under
Chapter IV - Duty of police officer u/s.154, CrPC irrespective of
impact of territorial jurisdiction - Discussed - Code of Criminal
Procedure, 1973 - s.154.
Code of Criminal Procedure, 1973 - s.170 - Requirement for
invoking - Held: Cardinal requirement to invoke s.170 is availability
of power with the Magistrate to take cognizance upon a police
report - This key requirement is absent in case of an offence falling
u/Chapter IV, 1940 Act- Drugs and Cosmetics Act, 1940.
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Drugs and Cosmetics Act, 1940 - s.22 - Powers of inspector
- Discussed.
Drugs and Cosmetics Act, 1940 - s.36AC - Held: Perusal of
s.36AC makes it clear that arrest is contemplated under the Act -
Conditions have been imposed for grant of bail as enacted in s.36AC.
Code of Criminal Procedure, 1973 - Power of arrest and bail
under - Chapters V, XXXIII; ss.41, 41A, 41B, 41D, 42, 43, 436,
437, 439 - Discussed - Code of Criminal Procedure (Amendment)
Act, 2008.
Drugs and Cosmetics Act, 1940 - Offences u/Chapter IV not
falling u/s.36AC - Arrest - Held: In relation to such offences, the
power of arrest would depend upon the provision in the Schedule
to the CrPC - Code of Criminal Procedure, 1973.
Drugs and Cosmetics Act, 1940 - s.34AA - Arrest not a ground
for visiting a delinquent Officer with penalty - Held: There is a
residuary power in s.34AA and it would cover any act.
Drugs and Cosmetics Act, 1940 - Arrest by Drugs Inspectors
- Requirement of reporting - Held: Drugs Inspectors must not only
report the arrests, as provided in s.58, CrPC, but also immediately
report it to their superior Officers - Code of Criminal Procedure,
1973 - s.58.
Dismissing the appeal, the Court
HELD: 1.1 ANALYSIS
The Drugs and Cosmetics Act, 1940 ("the Act") purports
to achieve the object of regulating the import, manufacture,
distribution and sale of drugs and cosmetics. The word Drugs
has been defined in Section 3(b). Section 3(e) defines Inspector.
Chapter III contains provisions which provide for deeming
definitions of misbranded drugs, adulterated drugs, spurious
drugs, misbranded cosmetics and spurious cosmetics for the
purpose of Chapter III. Section 13 provides for offences arising
out of imports. Chapter IV falls under the chapter heading
"Manufacture, Sale and Distribution of Drugs and Cosmetics".
Interestingly, misbranded drugs, adulterated drugs, spurious
drugs, misbranded cosmetics and spurious cosmetics, adulterated
cosmetics are defined by provisions found in Chapter IV for the
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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. It is necessary to notice
the rules relevant in this regard. Rule (49) deals with qualifications
of Inspectors. Rule (51) deals with duties of Inspectors in regard
to sale. Rule (52) deals with duties of Inspectors in regard to
manufacturer. Section 22 deals with the powers of the Inspector.
Section 23 provides for the procedure to be followed by the
Inspector. It includes the tendering of fair price when a sample is
taken of a drug or cosmetic under the Chapter. There are various
other provisions regarding the procedure to be followed by the
Inspector which includes seizure of record/ register, documents
or other material objects and the need to notify a judicial
Magistrate [Section 23(6)]. Section 27 provides for penalty for
manufacture, sale etc. of drug in contravention of Chapter IV.
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 32B provides
for compounding of certain offences. [Paras 10-15][958-B-C, EG; 959-D-E; 960-B, H; 961-E-F; 963-E-G; 966-B-C]
1.2 Chapter IV-A provides for "Provisions relating to
Ayurvedic, Siddha and Unani Drugs". It also contains provisions
for the purpose of Chapter IV-A dealing with deemed definitions
of Misbranded drugs, Adulterated drugs, Spurious drugs and are
created offences. Section 33G provides for appointment of
Inspectors by the Central Government or the State Government.
Section 33H makes the provision of Section 22,23,24 and 25 and
the rules, if any, thereunder applicable in respect of Ayurvedic,
Siddha and Unani drugs. The last Chapter of the Act is Chapter
V. It bears the Chapter heading "Miscellaneous". Section 36
declares that any Metropolitan Magistrate or Judicial Magistrate
of First Class may pass a sentence in excess of the powers under
the CrPC. Section 36A provides that certain offences are to be
tried summarily. Section 36AB provides for Special Courts. It
declares that the Central Government or the State Government
in consultation with the Chief Justice of the High Court, shall,
for certain offences designate one or more Court of Sessions as
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a Special Court or Special Courts. Sub-section (2) provides that
the Special Court may try an offence other than the offences
covered by sub-section (1) which may be charged against the
accused at the same trial. Section 36 AD is also relevant which
provides for application of Code of Criminal Procedure, 1973 to
proceedings before Special Court. [Paras 16-18][966-G-H; 967C-D; 968-E-F]
2.1 RELEVANT PROVISIONS OF THE CRPC
Section 2(a) defines "bailable offence" as offence shown as
such in the First Schedule, or which is made bailable under any
other law for the time being in force. "Non-bailable offence"
means any other offence. 'Cognizable offence' is defined in Section
2(c). Section 2(d) defines 'complaint'. 'Police report' is defined
in Section 2 (r) as meaning a report forwarded by a police officer
to a Magistrate under sub-section (2) of Section 173. Chapter
XII comes under the heading 'Information to the Police and their
Powers to Investigate'. Section 154 inter alia provides that every
information relevant to the commission of a cognizable offence
given orally to an officer in charge of a Police Station shall be
reduced to writing by him or under his direction, and be read
over to informant. Every such information whether given in writing
or reduced to writing as aforesaid shall be signed by the person
giving it. The substance of the same is to be entered in a book to
be kept by such officer in such form as may be prescribed. Section
155 deals with information as to non-cognizable cases and the
manner of investigation of such cases. No police officer can
investigate a non-cognizable offence without the order of the
Magistrate having power to try such case or commit such case
for trial. [Paras 19-23][969-C, E; 970-A, E-F]
2.2 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. Chapter XIV
deals with the "Conditions requisite for Initiation of Proceedings".
Section 190 provides for Cognizance of offences by Magistrates.
Chapter XV deals with Complaints to Magistrates.Chapter XVI
comes under the chapter heading "Commencement of
Proceedings before Magistrates". Section 204 deals with "Issue
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of Process" in a case where the Magistrate taking cognizance is
of the view that there is sufficient ground for proceeding in the
matter. It may also be relevant to notice part II of the First
Schedule to the CrPC. It must be remembered that cognizable
offence has been defined in terms of the classification of the
offences under the First Schedule. The first part of the First
Schedule deals with offences under the Indian Penal Code. The
second part, as it were, deals with classification of offences against
other laws. Section 4(2) of the CrPC declares that all offences
under any law other than the IPC shall be investigated, inquired
into and tried and otherwise dealt with according to the CrPC.
This is however, subject to any enactment for the time being in
force which provides otherwise in the matter of, the manner or
place of investigation inter alia in regard to offences under any
law other than the IPC. The purport of Section 5 is this: If any
special law or local law for the time being in force contemplates
any special jurisdiction or power or any special form of procedure
prescribed, unless there is something to the contrary, to be found,
it is the provisions of the special law or the local law which would
prevail. [Paras 24-28][971-C-D, G; 972-E-F; 973-D-F]
3. IMPACT OF SECTION 2 OF THE ACT
Section 2 of the Act declares that the provisions of the Act
shall be in addition to and not in derogation of the Dangerous
Drugs Act 1930 and any other law for the time being in force. As
far as Section (2) of the Act is concerned if the attempt of the
appellant is to contend that it imports the provisions in CrPC
which tends to overwhelm, in particular, any special procedure
provided under the Act, the Court has no hesitation in repelling
the same. 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 Act. If there are any other provisions of cognate laws dealing
with the subjects dealt with by the Act, the operation of those
Acts was to be preserved. The Act does not provide for any
express repeal of any enactment. [Para 29][973-G-H; 974-A-B]
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4.1 SECTION 32 OF THE ACT
Section 32 of the Act falls in chapter IV. Inspectors are
appointed by the Central Government or the State Government
from persons possessing prescribed qualifications under a
notification. Section 21 contemplates prescribing under rules the
powers which may be exercised by the Inspectors apart from the
duties which may be performed by him inter alia. Section 22 of
the Act provides for power of search by the Inspectors. They
have power to inspect any premise, take samples, powers of
search, examine any record, register, material object and seize
them. The Legislature has undoubtedly applied the provisions of
the CrPC in regard to searches under the Act. Section 23
elaborately provides for procedure to be adopted by Inspectors.
[Para 30][974-C-D]
4.2 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. It will be noticed at once that
Section 190 of the CrPC also has a title 'Cognizance of Offence
by Magistrate'. Cognizance under Section 190 is contemplated
in three different modes. They are - (1) complaints of facts
constituting such offences, (2) police report of such facts, (3) upon
any information received from a person other than a Police Officer
or upon a court being possessed of knowledge about the
commission of the offence. In other words, where the court takes
cognizance suo motu. A comparison between Section 32 of the
Act and 190 of the CrPC dealing with cognizance of offences,
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makes it abundantly clear that the Law Giver has provided for
distinct modes in regard to prosecuting of the offences under the
general law, viz., the CrPC and the special provision, as contained
in Section 32 of the Act. Section 193 of the CrPC provides for
Cognizance of offences by Courts of Session. Section 195
prohibits the Court from taking any cognizance of the offences
mentioned therein except on the complaint in writing by the
persons named therein. Section 198A and Section 199 likewise
permit the courts to take cognizance only upon the complaint
made by the persons mentioned therein. Similarly, Section 199
taboos cognizance of offence of defamation except on the
complaint made by some aggrieved person. Section 36AD of the
Act applies the provisions of the CrPC except where it is
otherwise provided in the Act in regard to the proceedings before
the Special Court and the Special Court is deemed to be the Court
of Sessions and the person conducting the prosecution is deemed
to be the Public Prosecutor. No doubt, the proviso empowers
the Central Government or the State Government to appoint for
any case or class or group of cases, a Special Public Prosecutor.
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 CrPC. The
Inspector is expected to inspect premises where drugs and
cosmetics are being manufactured, sold, stocked, exhibited,
offered for sale or distributed. Samples are to be taken at the
points of manufacturing, selling, stocking and the points of
delivery. He is expected also, where he has reason to believe
that an offence under the Act has been committed, to search any
person, enter any place, stop and search any vehicle, examine
records, and documents and seize the same. Last but not the
least, Section 22(1)(d) declares that he may exercise other powers
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as may be necessary for carrying the purposes of Chapter IV or
any Rules made thereunder. The elaborate procedure to be
followed by the Inspectors is also provided by the law. [Paras 3137][974-C-G; 975-C-H; 976-A-E]
4.3 A perusal of Section 26 of the Drugs and Cosmetics
Act, 1940 would indicate the role which is assigned to any person
and recognized consumer association within the meaning of
Section 32. Section 26 of the Drugs and Cosmetics Act, 1940
declares that on the application, any person or any recognized
consumer association, in the prescribed manner and on payment
of prescribed fee, is entitled to submit for test or analysis, to a
Government Analyst any drug or cosmetic purchased by the
person or the association and to receive a report of such test or
analysis signed by the Government Analyst. There can be no
gainsaying that armed with a report which reveals the commission
of an offence under Chapter IV of the Act, they can invoke Section
32 and prosecute the offender. Section 32 of the Act undoubtedly
provides for taking cognizance of the offence by the court only at
the instance of the four categories mentioned therein. They are:
(a) Inspector under the Act; (b) Any Gazetted Officer empowered
by the Central or the State Government; (c) Aggrieved person;
and (d) Voluntary Association. It is clear that the Legislature has
not included the Police Officer as a person who can move the
court. Before the matter reaches the court, under Section 190 of
the 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 Act. In other words, it is not open to the Police Officer to
submit a report under Section 173 of the CrPC in regard to an
offence under Chapter IV of the Act under Section 32. In regard
to offences contemplated under Section 32(3), the Police Officer
may have power as per the concerned provisions. Being a special
enactment, the manner of dealing with the offences under the
Act, would be governed by the provisions of the Act. It is to be
noted that Section 32 declares that no court inferior to the Court
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of Sessions shall try offence punishable under Chapter IV. Under
Section 193 of the CrPC, no Court of Sessions can take cognizance
of any offence as a Court of Original Jurisdiction unless the case
has been committed to it by a Magistrate under the CrPC. This
is, undoubtedly, subject to the law providing expressly that that
Court of Sessions may take cognizance of any offence as the Court
of Original Jurisdiction. There is no provision in the Act which
expressly authorises the special court 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 Act. Starting with Section 200 of the 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.[Paras 38-40][977-AH; 978-A-B]
4.4 A perusal of Section 202 would show that in regard to
an offence falling under Chapter IV of the Act, being exclusively
triable, by a Court of Sessions, the proviso to sub-Section (1) to
Section 202 prohibits the direction for investigation under Section
202. The proviso to sub-Section (2) of Section 202 contemplates
that when an offence is exclusively triable by the Court of Sessions,
and the Magistrate proceeds under Section 202 of the CrPC, he
is duty bound to call upon the complainant to produce all its
witnesses and examine them on oath. Thus, the effect of the two
provisions in sub-Sections (1) and (2), respectively, is as follows:
A Magistrate proceeding under Section 202 of the CrPC, 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
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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.
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
Code contemplates making available statements of all the
witnesses examined among other documents to be made available
to the accused as provided therein. This prepares the accused
for the case he is likely to be called upon to meet in the Court of
Sessions. As far as a complainant setting the criminal law in motion
is concerned, what is contemplated is that by the mechanism of
cognizance under Section 200 read with Section 202, culminating
in the issuance of summons or warrant under Section 204, there
is material 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 of the Act.
In such circumstances, the Court need not consider further the
argument that a direction for investigation by the Magistrate under
Section 202 would not be tabooed as the result of the investigation
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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.
[Paras 41-43][978-D-H; 979-A-G]
4.5 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 unless the
Public Prosecutor has been given an opportunity to oppose the
application of such release and where the Public Prosecutor
opposes, the court is satisfied that there are reasonable ground
for believing that he is not guilty of such offence and that he is
not likely to commit any offence while on bail. This limitation on
the grant of bail is in addition to the limitations under the CrPC
or and under any other law for the time being in force on grant of
bail. The special powers, however, of the High Court regarding
the grant of bail under Section 439 of the CrPC, is preserved as
found therein. [Para 45][980-E-F]
5. 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
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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. Sub-section (2) declares the proceedings of police
officer in a case of cognizable offence shall not in any stage be
called in question on the ground that the case was one which he
was not empowered to investigate under the provision. Lastly,
sub-section (3) provides that any Magistrate who is empowered
under Section 190 may order such an investigation which the
officer is to undertake under sub-section (1). Section 157 CrPC
comes under the section heading 'Procedure for investigation'.
The body of the Section can be split-up into the following parts -
(i) An officer in charge of a police station may from information
received have reason to suspect the commission of an offence.
He may also have reason to suspect the commission of cognizable
offence not on the basis of any information but otherwise. (ii) 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. (iii) 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. (iv) However, a police officer who
undertakes to investigate the matter is obliged to forthwith send
a report of the same to the Magistrate empowered to take
cognizance of an offence upon a police report. It is at once relevant
to notice in the facts of this case that this indispensable element
is not present. This is for the reason that under Section 32 of the
Act, a Magistrate is not competent to take cognizance of the
offences under Chapter IV of the Act upon a police report. Section
158 CrPC speaks about the manner of sending the report to the
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Magistrate under Section 157. It is a matter governed by a general
or special order issued by the State Government. Quite clearly
even Section 158 cannot apply in the case of a cognizable offence
falling under Chapter IV of the Act for the reasons adverted to.
Section 159 enables the Magistrate on receiving such report to
direct investigation or if he thinks fit at once to proceed or depute
any Magistrate subordinate to him to proceed, to hold a
preliminary inquiry or otherwise 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. 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 CrPC. Reverting back to
Section 157, the Court has 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 commission
of a cognizable offence on which the Magistrate is to take
cognizance on a report. Be it remembered that the Magistrate
can take cognizance under Section 190 of the CrPC on a complaint,
a police report or information received from any person other
than a police officer or otherwise. Section 157 appears to
contemplate information received under Section 154 or knowledge
gained otherwise about the commission of a cognizance offence
clothing the police officer with the power to investigate leading
to the sending of the report to the Magistrate being confined to
cases where officer intends to send the police report which has
been defined as the report under Section 173 of the CrPC. In
regard to taking cognizance under Section 32 of the Act, it is
unambiguously clear that there is no place for a police report
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within the meaning of Section 173 of the CrPC in regard to offences
falling under Chapter IV of the Act. Section 157 contemplates
that the Officer proceeding either by himself or through his
subordinate Officer to investigate the facts and circumstances,
and if necessary, to take measures for the discovery and the arrest
of the offender. But on reading the provisions, the Court gathers
the unmistakable impression that the law giver has empowered
the police officer to investigate in the case of a cognizable offence
without any order of the Magistrate where he ultimately in an
appropriate case wishes the Court to take cognizance based on
the material he gathers and transmits a police report. If this
impression of the Court is not flawed, an inevitable corollary would
be that in the case of offence under Chapter IV of the Act though
it be cognizable, a police officer would not have the power to
investigate the matter. Section 169 speaks about the duty to
release a person in custody if it is found on investigation that
there is no sufficient evidence or reasonable ground of suspicion
to justify forwarding such person to the Magistrate. Section 170
deals with cases where an officer conducting investigation finds
sufficient evidence or reasonable ground and the accused is
forwarded to the Magistrate empowered to take cognizance of
the offence upon a report. Again, the cardinal requirement for
the officer to invoke Section 170 is availability of power with the
Magistrate to take cognizance upon a police report. This key
requirement is 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. Section 190 of the CrPC has already been
noted. Sections 154, 156, 157, 158, 159, 160, 161, 170 and 173
are part of a scheme of provisions geared to empower and require
investigation of cognisable offences which are to culminate in a
police report within the meaning of Section 190(b) of the CrPC.
However, what is applicable in respect of offences under Chapter
IV of the Act is not 190 of the CrPC but Section 32 of the Act
which does not permit cognizance being taken on a police report.
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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. [Paras 62-64][993-E-H; 994-A-C; 995A-H; 996-A-H; 997-A-D]
6. IMPACT OF LALITA KUMARI V. GOVERNMENT OF
UTTAR PRADESH AND OTHERS
This Court was not, in the said case, considering a case
under the Act or cases similar to those under the Act. Having
regard to the discussion made and on a conspectus of the
provisions of the CrPC and Section 32 of the Act, the principle
laid down in Lalita Kumari is not attracted when an information is
made before a Police Officer making out the commission of an
offence under Chapter IV of the Act mandating a registration of a
FIR under Section 154 of the CrPC. [Para 66][998-A-B]
Lalita Kumari v. Government Of Uttar Pradesh and
Others (2014) 2 SCC 1 : [2013] 14 SCR 713 - held
inapplicable.
7. DUTY OF POLICE OFFICER UNDER SECTION 154
OF THE CRPC IRRESPECTIVE OF IMPACT OF
TERRITORIAL JURISDICTION
There is practice of registering an FIR as a Zero FIR, when
the Police Station at which FIR is registered, does not have
territorial jurisdiction, and then, it is made over to the Police
Station which has jurisdiction in the matter. Could it, therefore,
be said that when information is given to a Police Officer, within
the meaning of Section 154 of the CrPC, in relation to the
commission of a cognizable offence under Chapter IV of the Act,
the Police Officer must register a FIR and then make it over to
the Inspector. It is to be noted that the duty to register FIR,
when information is received about a cognizable offence falling
under Chapter IV of the Act, it is clear from the very inception
that a Police Officer has no jurisdiction to investigate the offence.
It is not a case of absence of territorial jurisdiction. If an
information is relatable only to cognizable offences under Chapter
IV of the 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
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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. [Paras 70, 71][999-E-G; 1000-A-B]
8. POWER TO ARREST UNDER THE ACT
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. 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.
The further question which would therefore arise is, the impact
of finding that arrest can be effected by a police officer in respect
of a cognizable offence under Chapter IV of the Act on the need
to register an FIR under Section 154. Under Section 157 of the
Act making a report to the Magistrate who can take cognizance
of a police report renders the provision as such inapplicable under
Chapter IV of the Act. [Paras 73, 74][1000-D-F]
9.1 THE POWER OF ARREST UNDER THE CRPC
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. 01-112010), deals with the power of the Police Officer to arrest without
warrant. 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
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person to meet an Advocate of his choice during the interrogation,
though not throughout interrogation.