Holding

For offences under Chapter IV of the Drugs and Cosmetics Act, only the persons named in Section 32 (including the Drugs Inspector) may prosecute and arrest, and the police cannot register an FIR or investigate such offences; any FIR must be transferred to the Inspector.

Summary

The Union of India challenged a High Court order that quashed an FIR registered under the Code of Criminal Procedure (CrPC) for the alleged sale of unlicensed drugs, holding that prosecution for offences under Chapter IV of the Drugs and Cosmetics Act, 1940 must be initiated only by persons named in Section 32 of the Act. The Supreme Court examined the interplay between the CrPC and the special Act, focusing on whether a police officer can register an FIR, investigate, or arrest for such offences. It held that Section 32 expressly limits prosecution to an Inspector, a gazetted officer, the aggrieved person, or a recognised consumer association, and that the police have no jurisdiction to take cognizance or file a police report for Chapter IV offences. The Court interpreted Section 22(1)(d) as conferring arrest powers on the Drugs Inspector, subject to the safeguards of D.K. Basu. Consequently, any FIR filed for Chapter IV offences must be transferred to the appropriate Drugs Inspector, who may arrest without a warrant and prosecute. The appeal was dismissed, affirming the High Court's decision and issuing directions to ensure compliance with the statutory scheme.

Issues considered

The legality of registering an FIR under Section 154 CrPC for offences falling under Chapter IV of the Drugs and Cosmetics Act, 1940.
Whether a police officer can investigate and prosecute offences under Chapter IV of the Act.
Who is authorized to institute prosecution under Section 32 of the Act.
The scope of arrest powers for a Drugs Inspector under Section 22(1)(d) and Section 36AC of the Act.
The interaction between the provisions of the CrPC (including Sections 190, 202, 157, 173) and the special provisions of the Drugs and Cosmetics Act.
The applicability of the Lalita Kumari principle to offences under Chapter IV of the Act.
Whether the police can exercise arrest powers under Section 41 of the CrPC for cognizable offences under the Act.

Legislation cited

Code of Criminal Procedure, 1973s. 154, s. 156, s. 157, s. 158, s. 159, s. 160, s. 161, s. 162, s. 167, s. 170, s. 173, s. 190, s. 193, s. 195, s. 198A, s. 199, s. 202, s. 204, s. 41, s. 41A, s. 41B, s. 41D, s. 42, s. 43, s. 44, s. 45, s. 46, s. 47, s. 48, s. 49, s. 50, s. 50A, s. 51, s. 52, s. 53, s. 54, s. 55A, s. 56, s. 57, s. 58, s. 59, s. 60A
Constitution of Indias. Article 142, s. Article 21, s. Article 22(1)
Drugs and Cosmetics Act, 1940s. 18, s. 22(1)(d), s. 26, s. 27, s. 32, s. 33P, s. 34AA, s. 36AC

Subjects

Drugs and Cosmetics ActSection 32FIRCriminal Procedure Codecognizable offencearrest powerDrugs Inspectorspecial lawLalita Kumaribailspecial court

Judgment

[2020] 10 S.C.R. 923 923

UNION OF INDIA A
v.
ASHOK KUMAR SHARMA AND OTHERS
(Criminal Appeal No.200 of 2020)
AUGUST 28, 2020 B
[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
C
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 D
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 E
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, F
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. G
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
H
923
924 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 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
B 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.
C 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
D 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:
E 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.
F
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
G 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.

H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 925

Drugs and Cosmetics Act, 1940 – s.22 – Powers of inspector A
– 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 B
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 C
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. D
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. E
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, F
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 G
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 H
926 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 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
B
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
C 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.
D
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, E-
G; 959-D-E; 960-B, H; 961-E-F; 963-E-G; 966-B-C]
E 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
F 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
G 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,
H for certain offences designate one or more Court of Sessions as
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 927

a Special Court or Special Courts. Sub-section (2) provides that A
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; 967-
B
C-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” C
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 D
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 E
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 F
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 G
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 H
928 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 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
B
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.
C 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
D
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
E 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
F
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
G 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]

H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 929

4.1 SECTION 32 OF THE ACT A
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 B
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
C
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,
D
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 E
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
F
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 G
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,
H
930 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 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
B
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
C 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
D
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
E 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
F
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
G 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
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 931

as may be necessary for carrying the purposes of Chapter IV or A
any Rules made thereunder. The elaborate procedure to be
followed by the Inspectors is also provided by the law. [Paras 31-
37][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 B
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 C
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 D
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 E
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 F
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 G
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 H
932 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 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
B
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
C 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
D
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-A-
H; 978-A-B]
E 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
F 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
G 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
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 933

not open to him to cause an investigation be it by a Police Officer A
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 B
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.
C
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 D
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 E
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 F
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 G
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
H
934 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 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]
B
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
C 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
D 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
E “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
F 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,
G 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
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 935

the provisions of Chapter XIII. In fact, Section 177 of the CrPC, A
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
B
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, C
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 -
D
(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 E
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
F
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 G
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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936 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 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
B
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
C 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
D
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
E 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
F
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
G 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
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 937

within the meaning of Section 173 of the CrPC in regard to offences A
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
B
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 C
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
D
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 E
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,
F
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 G
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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938 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 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; 995-
A-H; 996-A-H; 997-A-D]
6. IMPACT OF LALITA KUMARI V. GOVERNMENT OF
B 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
C 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
D 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
E 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
F 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
G 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
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 939

duty lies in referring the complainant to the concerned Drugs A
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 B
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. C
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 D
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 E
(Amendment) Act, 2008 (Act 5 of 2009, Section 5) (w.e.f. 01-11-
2010), deals with the power of the Police Officer to arrest without
warrant. 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 F
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 G
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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940 SUPREME COURT REPORTS [2020] 10 S.C.R.

A person to meet an Advocate of his choice during the interrogation,
though not throughout interrogation. Under Section 42 of the
CrPC, if a person commits a non-cognizable offence in the
presence of a Police Officer or he is accused of committing a
non-cognizable offence, and the Police Officer, on demanding his
name and residence, is met with a refusal or the giving of a name
B
or residence, which the Officer believes to be false, arrest can
be made but for the purpose of ascertaining the name and
residence. In fact, he is to be released immediately on executing
a bond when the true name and residence is ascertained. If there
is failure to ascertain the address within twenty-four hours, inter
C alia, of arrest, no doubt, it is forthwith forwarded to the nearest
Magistrate having jurisdiction. The Act contemplates arrest by a
private person. The power and the procedure, is detailed in
Section 43 of the CrPC. Section 46 of the CrPC provides for the
manner of arrest. Section 47 enables the Police Officer to search
the place entered by a person sought to be arrested. The person
D
arrested is not to be subjected to more restraint than is necessary
to prevent his escape, declares Section 49 of the CrPC. Every
Police Officer or other person, arresting a person without a
warrant, is bound forthwith to communicate to him all particulars
of the offence for which he is arrested or other grounds for such
E arrest. This is provided for in Section 50 of the CrPC. A Police
Officer, when he arrests a person without warrant and he is not
accused of committing a non-bailable offence, is duty-bound to
inform him of his entitlement to be released on Bail. The Police
Officer is also under an obligation to inform, under Section 50A
of the CrPC, a nominated person about the factum of arrest. This
F
came into force on 23.06.2006. Section 51 deals with search of
the arrested person. [Paras 82-85][1004-H; 1005-A; 1007-C-G;
1008-E-H]
9.2 Section 54 of the CrPC declares that when any person
is arrested, he shall be examined by a Medical Officer. Section
G 54A of the CrPC, inserted w.e.f. 23.06.2006, specifically provides
for identification of the arrested person. Section 55A of the CrPC,
inserted w.e.f. 31.12.2009, makes it the duty of the person, having
the custody of the person, to take reasonable care of the health
and safety. Section 56 of the CrPC makes it the duty of the Police
H Officer, arresting without warrant, to produce the person arrested
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 941

before a Magistrate having jurisdiction without unnecessary delay A
or before the Officer In-charge of a Police Station. The Officer
In-charge of Police Station is to report about all persons arrested
without warrant to the District Magistrate or the Sub-Divisional
Magistrate as directed by the District Magistrate. Section 59 of
the CrPC provides that no person, who has been arrested by a
B
Police Officer, shall be discharged, except on his own bond or on
Bail or under the Special Order of the Magistrate. Section 60A
of the CrPC provides that no arrest is to be made, except in
accordance with the provisions of the CrPC or any other law being
in force, providing for arrest. Chapter XI of the CrPC provides
for preventive action of the Police. Section 151 of the CrPC, inter C
alia, empowers a Police Officer, knowing of a design by a person
to commit a cognizable offence, to arrest him without orders from
a Magistrate and without a warrant. Section 157 of the CrPC
provides, inter alia, that the Police Officer, proceeding to
investigate a case, may take measures for the arrest of the
D
offender. Section 167 of the CrPC deals with a case where
investigation is not completed within twenty-four hours, as fixed
in Section 57 of the CrPC. It provides that in such a situation, if
there are grounds for believing that the accusation or information
is well founded, the person arrested, is to be forwarded to the
Magistrate, inter alia. Section 167 empowers Magistrate to order E
remand of the accused person, as provided therein. [Paras 86,
87][1009-A-C, E-H]
10. THE PROVISIONS AS TO BAIL
Chapter XXXIII of the CrPC deals with Bail. Section 436
of the CrPC deals with Bail in the case of an arrest of a person F
accused of a bailable offence. There is a Statutory Right to Bail in
the manner provided therein. Section 437 of the CrPC provides
for Bail in the case of a non-bailable offence. It, essentially, deals
with a situation where a person is brought before a court other
than the High Court or Court of Sessions. There are certain G
restrictions and conditions to be fulfilled in the matter of grant of
Bail on the Court, as is stated therein. Section 439 of the CrPC,
confers special powers on the High Court or the Court of Sessions
in regard to Bail. [Paras 88, 89][1010-A-C]

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942 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 11.1 ARREST
ANALYSIS
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
B 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. Under the
Act, as noted, and bearing in mind the law laid down in connection
with similar Statutes, the Court has no hesitation in rejecting the
C argument of the petitioner that after the amendment of Section
36AC of the Act, making the offences cognizable and non-bailable,
it is open to the Police Officer to prosecute the person for the
offences set-out in Section 36AC of the Act. Having regard to
the express provisions of Section 32 of the Act, insofar as the
prosecution is to be launched qua offences falling within the four
D walls of Chapter IV of the Act, and which are also the subject
matter of Section 36AC of the Act, there cannot be any doubt
that prosecution of the offender, for such offences, can be done
only in the manner provided in Section 32 of the Act. The
prosecution can be launched only by the persons mentioned in
E Section 32 of the Act. A Police Officer, as such, does not figure as
one of the persons who may prefer a report under Section 173(2)
of the CrPC, on which, cognizance could be taken by the Special
Court. Undoubtedly, as the Court has already clarified in respect
of an offence under Chapter IV, if the acts or omission also
constitutes an offence under any other law, under Section 32(3)
F of the Act, it may be open to the Police Officer, if he is otherwise
empowered under the said law, to prosecute the person for the
same offence, to act as such. Consequently, the registration of an
FIR, which under the scheme of the CrPC, sets the ball rolling,
empowering the Police Officer to investigate under Section 157
G of the CrPC, and gather material and finally file a Report, would
be inapplicable to an offence under Chapter IV of the Act. [Paras
98-100][1016-E-H; 1017-A-C]
11.2 The conundrum, however, is posed by the aspect
relating to arrest. Undoubtedly, there is no express power on
H the Inspector to arrest under the Act. The Parliament, which is
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 943

author of the CrPC and also the Act in question, was aware of the A
provisions of the CrPC, as it existed at the time when the Act
was enacted in 1940. This is following the principle that the
Legislature must be assumed to know the law which exists on
the Statute Book when it makes a new law. It must, therefore, be
assumed to know that the power of arrest is expressly conferred
B
on the Police Officer in the manner which 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, which deals with the powers of the Inspector, inter alia,
enables the Inspector to exercise such other powers as may be
necessary for carrying out the purpose of Chapter IV or any Rules C
made thereunder. The sanction, which is contemplated under
Chapter IV, is the criminal sanction by way of prosecuting a person
for contravening the provisions of Chapter IV of the Act. In other
words, the Legislature has given teeth to the law by providing
for prosecuting offenders. The Inspector is at the center stage.
D
In every other aspect, as can be seen from the Act, the
implementation of its provisions is vitally dependent upon the
powers and functions assigned to the Inspector. The very
qualifications, which are provided in the Rules, as indispensable
for being appointed as an Inspector, represents a carefully chosen
value judgment by the Legislature to assign the implementation E
of the Act through the competent hands of qualified persons. The
Act is enacted to achieve the highest public interest in as much
as what is at stake is the health of the members of the public,
which again is recognized as one of the aspects covered by the
Fundamental Right protected under Article 21 of the Constitution
F
of India. Keeping the Police Officer out from the categories of
persons, who could prosecute offenders for offences under
Chapter IV of the Act, is also a carefully thought out ideal. [Paras
101, 102][1017-C-D, G-H; 1018-A-D]
12. THE DECISION OF THIS COURT IN
DIRECTORATE OF ENFORCEMENT V. DEEPAK MAHAJAN G
AND ANOTHER
As laid down in Deepak Mahajan, the power of arrest can
be conferred on persons other than a Police Officer. The Foreign
Exchange Regulation Act, 1973 (hence repealed); the Customs
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944 SUPREME COURT REPORTS [2020] 10 S.C.R.

A Act, 1962; the Gold (Control) Act, 1968 (repealed); the
Prevention of Food Adulteration Act, 1954 (hence repealed) and
the Railway Property (Unlawful Possession) Act, 1966, in Sections
35, 104, 68, 10B and Section 6, respectively, conferred power of
arrest on the Officers under these Acts. Therefore, if Section
22(1)(d) of the Act is interpreted, as comprehending the power
B
of arrest with the Drugs Inspector, then, his competency to arrest,
a requirement in law, as laid down again in Deepak Mahajan
(paragraph-54), would stand satisfied. However, the further
question is, what is the procedure to be followed by the Inspector,
and still finally, whether the Police Officer, under the CrPC, will
C stand deprived of the power to arrest. The Court does agree that
the Police Officer, for instance, cannot be approached by any
person with a complaint that a cognizable offence under Chapter
IV of the Act has been committed and he is not bound to register
the FIR in terms of the law which is being held down by this court
in Lalita Kumari. This is for the reason that if he were to register
D
an FIR, then, he would have to pass on to the stage of Section
157 of the CrPC and, furthermore, carry out investigation, as
understood in law, for which neither is he deemed qualified or
empowered by the Law Giver nor is he entitled to file a Report
under Section 173 of the CrPC. [Paras 109, 110][1022-D-F; 1023-
E A-B]
Directorate of Enforcement v. Deepak Mahajan and
Another (1994) 3 SCC 440 : [1994] 1 SCR 445 – relied
on.
13. POWER OF ARREST UNDER THE ACT
F
The Court is faced with a situation which projects a discord
between two Statutes, viz., the CrPC and the Act, and the only
silver-lining appearing on the horizon, is the ambit of the power
under Section 22(1)(d) of the Act. Apart from the same, there is
no express power of arrest under the Act on the Drugs Inspector.
G [Para 111][1023-C-D]
14. SOME ENACTMENTS CONTAINING PROVISIONS
SIMILAR TO SECTION 22(1)(d) OF THE ACT
The Seeds Act, 1966 (Section 14(1)(e), the Insecticides Act,
1968 (Section 21(f)), the Kerala Fish Seed Act, 2014 (Section
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 945

19(1)(e), Uttarakhand Ground Water (Regulation and Control of A
Development and Management) Act, 2016 [Section 13(1)(j)],
contain provisions similar to what is contained in Section 22(1)(d)
of the Act. The Weekly Holidays Act, 1942 [Section 8(1)(c)], the
Jammu and Kashmir Factories Act, 1999 [Section 9(1)(c)],
contained provisions which confer power on the Authorities under
B
the Act to exercise such other power as may be necessary for
carrying outer purposes of the enactment. As far as the Shops
and Commercial Establishment Act, 1958 [Section 19(1)(c)], after
conferring the power to exercise such powers, as may be
necessary for carrying out the Act, the Law Giver carves out a
limitation by way of a proviso that no one shall be required, under C
the said Section, to answer any question or give any evidence
tending to incriminate him. Such a proviso is also found in the
Private Medical Establishment Act, 2007 [vide Section 21(1)(b)]
as also in the Jammu and Kashmir Factories Act, 1999. [Paras
112, 113][1023-G-H; 1024-A-B]
D
15.1 The power to arrest is a drastic power. It involves
encroachment on personal liberty. The Drugs Inspector is not a
Police Officer under the CrPC. The Legislature was aware of the
power of the Police Officer to arrest when he embarks on
investigation of a cognizable case, as is clear from Section 157 of
the CrPC. There is another indication in the Act which may reveal E
the mind of the Legislature that the power of arrest was not
intended to be conferred on the Drugs Inspector. There is no
reference in Section 34AA (Penalty for vexatious search or
seizure) to arrest forming the subject matter of penalty.
[Para 134][1034-G-H; 1035-A] F
15.2 As noticed in the Central Excise Act, 1944, apart from
the fact that the power of arrest is expressly conferred, the manner,
in which the power is to be exercised, is specifically indicated, as
noticed on a perusal of Sections 19 and 20. Section 68 of the Gold
Control Act, 1968 has expressly conferred power of arrest, the G
conditions in which the power could be exercised and further
procedure to be followed. The Inspector under the Act has been
conferred with a vast and formidable array of powers, and in an
enactment like the Act, the taking of samples, the Report given
by the Competent Officer in regard to the same and the right
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946 SUPREME COURT REPORTS [2020] 10 S.C.R.

A reserved to the concerned person to seek a further Report from
the Central Laboratory, go a long way in the successful culmination
of a complaint under Section 32 of the Act. The Inspector is,
undoubtedly, endowed with the power of inspection, taking
samples of any drug or cosmetic, searching any person, searching
any place, searching any vehicle, examining records, registers,
B
documents and other material objects and seizing the same,
requiring any person to produce any record, register or other
document. These are powers which are expressly conferred on
the Inspector. Though, a complaint could be filed by other
categories of complainants in Section 32 of the Act, the Inspector
C is pivot around which the Act moves. Rule 51(4) makes it a duty
on the part of the Drugs Inspector to investigate any complaint
in writing which may be made to him. It is also his duty under
Rule 51(5) to institute prosecution in respect of breaches of the
Act and the Rules thereunder. He is also duty-bound under Rule
51(7) to make inquiries and inspections as may be necessary to
D
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,
E undoubtedly, is the procedure to be followed by the Inspector.
The Court is, 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
F
Act. If it is interpreted 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 CrPC to investigate under the Act or to file a
Report under Section 173 of the CrPC, which indeed is
G indisputable, then, a power of arrest, which is necessary for the
purpose of investigating and prosecution of the offences falling
within Chapter IV of the Act, must be conceded to the Drugs
Inspector. The legislative intention in conferring various powers,
as noticed in the foregoing provisions of Section 22 of the Act
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 947

and declaring that all other powers, which are necessary for the A
purpose of the Act, are to inhere in the Drugs Inspector, reassures
the Court that it would be correctly ascertaining the legislative
intention to be that on a Drug Inspector taking-up a matter falling
under Chapter IV of the Act, he is invested with the power to
arrest. There is another aspect which may have an important
B
bearing on the issue. Under Section 36AC of the Act, the offences
as mentioned therein which include some of the offences under
Chapter IV of the Act are declared cognizable and non-bailable.
The provision imposes restriction on the arrested person being
released on bail or on his own bond unless the public prosecutor
has been given an opportunity to oppose the application and when C
the public prosecutor opposes the application, the Court is to be
satisfied that there are reasonable grounds for believing that the
accused person is not guilty of such offence and that he is not
likely to commit an offence. This limitation, is apart from the
limitations in the CrPC, inter alia. Now, the Police Officer acting
D
under the CrPC even proceeding for a moment on the basis that
it is sufficient that a mere memorandum of arrest as required
under the CrPC is prepared and further there is compliance with
other provisions of the CrPC also, would it suffice is the question
that would arise in the following manner? From the provisions of
the Act and the Rules it is noted that it is the Drugs Inspector E
who is empowered and duty bound to investigate the complaint
about violations of acts and rules. He is the person charged with
a duty of prosecuting the offenders. If the police officer is merely
to be granted a power of arrest and without having any power of
investigation then how would it be possible for the police officer
F
to make any investigation under the act and if no investigation is
possible, how would the Police Officer be in a position to be of
any assistance to the Public Prosecutor and, therefore, to 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 G
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
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948 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 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
B 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 Cr.P.C. [Paras
136-138][1036-C-H; 1037-A-H; 1038-A-D]
C 15.3 As far as the arrest, not being mentioned in Section
34AA, as forming a ground for visiting the delinquent Officer
with penalty, it may be noticed that there is a residuary power in
Section 34AA and it would cover any act. Section 34AA(d)
provides that if any Inspector, exercising powers under the Act
D or the Rules made thereunder, commits, as such Inspector, any
other act, to the injury of any person without having reason to
believe that such act is required for the execution of his duty, he
shall be punishable with fine which may extend to one thousand
rupees. Regarding the power for seeking and ordering a remand
under Section 167, the principles laid down by this Court in
E Deepak Mahajan would apply. This process of interpretation would
produce the result of harmonizing two seemingly irreconcilable
commands from the Law-Giver. This interpretation commends
for the reason that the investigation into offences, under Chapter
IV of the Act, would commence, be carried out and would
F culminate in, in the safe hands of the competent and qualified
Statutory Authority, as designated by law. It would also avoid an
outside agency like a Police Officer, being obliged to register an
FIR, for the reason that where arrest has to be made, a FIR is to
be registered, and, when the registering of the FIR carries with
it an unattainable object of preferring a Final Report under Section
G 173 of the CrPC, as far as the Police Officer is concerned. It is
made clear that if a Police Officer is approached with regard to a
complaint regarding commission of an offence falling under
Chapter IV of the Act, he is not to register an FIR unless it be
that a cognizable offence, other than an offence falling under
H Chapter IV of the Act, is also made out. He must makeover the
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 949

complaint to the competent Drug Inspector so that action in A
according with law is immediately taken where only offences under
Chapter IV are made out. [Paras 139-141][1038-F-H; 1039-A-D]
15.4 As far as the arrest contemplated under Section 41 of
the CrPC is concerned, in case a cognizable offence, falling under
Chapter IV of the Act, is committed, either in the presence of B
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. Since the
procedure under the CrPC is to be read as applicable, except to
the extent that a different procedure is to be provided under the C
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, as also as contained in the CrPC, would be
applicable. Following Deepak Mahajan, it is held that the Drugs D
Inspector, under the Act, is invested with certain powers similar
to a Police Officer. The word “investigation” cannot be limited
only to a Police investigation, as has been noted in Deepak
Mahajan. The power to arrest a person must indeed flow from
the provisions of a Statute. The statutory provision under the
Act is Section 22(1)(d). The arrested person, under the Act, would E
be an accused person to be detained under Section 167(2) of the
CrPC. No doubt, the Police Officer is bound to provide assistance
to the Inspector in case of need to effectuate the arrest where
there is resistance or likelihood of resistance. No doubt, in regard
to the arrest in relation to offences falling under Chapter IV of F
the Act, which do not fall under Section 36AC, the power of arrest
would depend upon the provision in the Schedule to the CrPC.
The existence of the power to arrest with the Drugs Inspector is
not to be understood as opening the doors to making illegal,
unauthorized or unnecessary arrest. Every power comes with
responsibility. In view of the impact of an arrest, the highest care G
must be taken to exercise the same strictly as per the law. The
power of arrest must be exercised, recognizing the source of his
authority, to be Section 22(1)(d) of the Act, which is for carrying
out the purpose of Chapter IV of the Act or any Rules made
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950 SUPREME COURT REPORTS [2020] 10 S.C.R.

A thereunder. Section 33P provides for power to give directions.
The Central Government is conferred with powers to give
directions to the State Government for the purpose of carrying
into execution, in the State, any of the provisions of the Act or
any Rule or Order made thereunder. It is for the Central
Government to consider the question whether it can, under the
B
said provision, issue directions in regard to the power of arrest,
which the Court has found, subject to what has been stated in
this Judgment. [Paras 142-145][1039-E-H; 1040-A-D, E-F]
D.K. Basu v. State of West Bengal (1997) 1 SCC 416 :
[1996] 10 Suppl. SCR 284 – relied on.
C
16. THE CONCLUSIONS/DIRECTIONS
I. In regard to cognizable offences under Chapter IV of the
Act, in view of Section 32 of the Act and also the scheme of the
CrPC, the Police Officer cannot prosecute offenders in regard to
D such offences. Only the persons mentioned in Section 32 are
entitled to do the same.
II. There is no bar to the Police Officer, however, to
investigate and prosecute the person where he has committed
an offence, as stated under Section 32(3) of the Act, i.e., if he has
E committed any cognizable offence under any other law.
III. Having regard to the scheme of the CrPC and also the
mandate of Section 32 of the Act and on a conspectus of powers
which are available with the Drugs Inspector under the Act and
also his duties, a Police Officer cannot register a FIR under Section
F 154 of the CrPC, in regard to cognizable offences under Chapter
IV of the Act and he cannot investigate such offences under the
provisions of the CrPC.
IV. Having regard to the provisions of Section 22(1)(d) of
the Act, an arrest can be made by the Drugs Inspector in regard
to cognizable offences falling under Chapter IV of the Act without
G
any warrant and otherwise treating it as a cognizable offence. He
is, however, bound by the law as laid down in D.K. Basu and to
follow the provisions of CrPC.

H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 951

V. On the understanding that the Police Officer can register A
a FIR, there are many cases where FIRs have been registered in
regard to cognizable offences falling under Chapter IV of the Act.
They should be made over to the Drugs Inspectors, if not already
made over, and it is for the Drugs Inspector to take action on the
same in accordance with the law. The power under Article 142 of
B
the Constitution of India is being resorted to in this regard.
VI. 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, the decision that Police Officers C
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. The Drugs Inspectors, who carry out the arrest, must
not only report the arrests, as provided in Section 58 of the CrPC, D
but also immediately report the arrests to their superior Officers.
On the facts, the impugned judgment is upheld. [Paras 150,
151][1041-E-H; 1042-A-F]
Jeewan Kumar Raut and another v. CBI (2009) 7 SCC E
526 : [2009] 10 SCR 272 – relied on.
State (NCT of Delhi) v. Sanjay (2014) 9 SCC 772 :
[2014] 9 SCR 1063; Kanwar Pal Singh v. State of Uttar
Pradesh and another (2020) 14 SCC 331; Jamiruddin
Ansari v. Central Bureau of Investigation and another F
(2009) 6 SCC 316 : [2009] 7 SCR 759; H. N. Rishbud
and Inder Singh v. State of Delhi, Etc. AIR 1955 SC
196 : [1955] SCR 1150; Institute of Chartered
Accountants of India v. Vimal Kumar Surana and
another (2011) 1 SCC 534 : [2010] 14 SCR 248; State
of A.P. v. Punati Ramulu and others AIR 1993 SC 2644; G
Satvinder Kaur v. State (Govt. of NCT of Delhi) and
another AIR 1999 SC 3596 : [1999] 3 Suppl. SCR 348;
Arnesh Kumar v. State of Bihar and another (2014) 8
SCC 273 : [2014] 8 SCR 128; Rini Johar v. State of
M.P. (2016) 11 SCC 703 : [2016] 5 SCR 579; Badaku
H
952 SUPREME COURT REPORTS [2020] 10 S.C.R.

A Joti Savant v. State of Mysore [1966] 3 SCR 698; Raj
Kumar Karwal v. Union of India and others (1990) 2
SCC 409 : [1990] 2 SCR 63; Ramesh Chandra Mehta
v. State of W.B. [1969] 2 SCR 461; Illias v. Collector of
Customs, Madras [1969] 2 SCR 613; State of U.P. v.
Durga Prasad (1975) 3 SCC 210 : [1975] 1 SCR 881;
B
Balkishan A. Devidayal v. State of Maharashtra (1980)
4 SCC 600 : [1981] 1 SCR175; T D. Sanjeevayya v.
Election Tribunal, Andhra Pradesh and others AIR 1967
SC 1211 : [1967] SCR 489; Sultana Begum v. Prem
Chand Jain (1997) 1 SCC 373 : [1996] 9 Suppl. SCR
C 707; Om Parkash and Another v. Union of India and
Another (2011)14 SCC 1 : [2011] 14 SCR 240 –
referred to.
Sunil Gupta v. Union of India 2000 (118) ELT 8 P&H;
Bhavin Impex Pvt. Ltd. v. State of Gujarat 2010 (260)
D ELT 526 (Gujarat) – referred to.
Case Law Reference
[2009] 10 SCR 272 relied on Para 7
[2014] 9 SCR 1063 referred to Para 7
E (2020) 14 SCC 331 referred to Para 8
[2009] 7 SCR 759 referred to Para 50
[1955] SCR 1150 referred to Para 54
[2010] 14 SCR 248 referred to Para 56
F [2014] 9 SCR 1063 referred to Para 59
[2013] 14 SCR 713 held inapplicable Para 65
AIR 1993 SC 2644 referred to Para 67
[1999] 3 Suppl. SCR 348 referred to Para 68
G
[1996] 10 Suppl. SCR 284 relied on Para 77
[2014] 8 SCR 128 referred to Para 80
[2016] 5 SCR 579 referred to Para 81
[1966] 3 SCR 698 referred to Para 91
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 953

[1990] 2 SCR 63 referred to Para 91 A
[1969] 2 SCR 461 referred to Para 91
[1969] 2 SCR 613 referred to Para 91
[1975] 1 SCR 881 referred to Para 91
[1981] 1 SCR175 referred to Para 91 B
[1967] SCR 489 referred to Para 93
[1996] 9 Suppl. SCR 707 referred to Para 94
[1994] 1 SCR 445 relied on Para103
C
[2011] 14 SCR 240 referred to Para 126
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
200 of 2020.
From the Judgment and Order dated 02.08.2018 of the High Court
of Judicature at Allahabad in Criminal Misc. Writ Petition No. 20338 of D
2018.
Ms. Pinky Anand, ASG, Apoorv Kurup, Ayush Anand, Ms. Upama
Bhattacharjee, Ms. Tanisha Samantha, Gurmeet Singh Makker, Advs.
for the appellant.
S. Nagamuthu, Sr. Adv., B. Balaji, S. Arun Prakash, E
M. Manikandan, Ms. Srishti Singh, Rohit Kaliyar, Advs. for the
respondents.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
F
1. What is the interplay between the provisions of the Code of
Criminal Procedure (hereinafter referred to as “CrPC” for short) and
the Drugs and Cosmetics Act, 1940 (hereinafter referred to as “the
Act” for short)? Whether in respect of offences falling under chapter
IV of the Act, a FIR can be registered under Section 154 of the CrPC
and the case investigated or whether Section 32 of the Act supplants the G
procedure for investigation of offences under CrPC and the taking of
cognizance of an offence under Section 190 of the CrPC? Still further,
can the Inspector under the Act, arrest a person in connection with an
offence under Chapter IV of the Act.
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954 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 2. One Naushad Khan made an online complaint on 22.2.2018.
The Commissioner (Food Protection and Drugs) directed enquiry and
the Drug Inspector, Mau, U.P. along with two others conducted an
inspection at the Sharda Narayan Clinic and Pharmacy and the
respondent No.1 was directed to show papers in respect of medicines
stored in the shop. The first respondent according to the appellant stated
B
that he did not have any license though he was the owner of the medical
store and that he had stored the medicines without proper license.
Thereby, he has committed offence under Section 18 and 27 of the Act.
On the basis of recovery made, an FIR came to be lodged on 22.6.2018
purporting to be under Section 18 (a)(i) and Section 27 of the Act. The
C 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
D
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
E scrupulously observed and it is the mechanism for prosecuting offences
and there is no scope for registration of a FIR under CrPC.
FINDINGS OF THE HIGH COURT
3. The High Court referred to Section 32 of the Act and found
that only an Inspector, a Gazetted Officer conferred with authority, a
F person aggrieved or recognized consumer organization is eligible to make
a complaint. The court adverted to the other provisions of the Act including
Sections 22, 23, 25 and 27 apart from Section 32 and found that the Act
clearly lays down a complete code for the trial of offences committed in
respect of Drugs and Cosmetics. The Act was a special Act enacted for
G the trial of offences committed under the Act. No other provision would
be applicable as the Act had an overriding effect over all Acts. The
provisions of the CrPC would not be applicable except as provided in
the Act itself. Since the lodging of an FIR is under Section 154 of the
CrPC, the said provision would not be invokable. It further held as follows:

H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 955
[K. M. JOSEPH, J.]

“21. In this Act, the procedure for launching a prosecution has A
been clearly laid down saying that prosecution under this Act can
be initiated only on a complaint made by an authorized Inspector
or other authorized persons defined under Section 32, who is
supposed to follow the entire procedure as narrated above. By no
stretch of imagination could the concerned Inspector have lodged
B
an F.I.R. in this case and authorize the police to make investigation
in this case.”
4. It was further held that the lodging of the FIR is absolutely
barred and FIR deserved to be quashed. The court also directed the
issue of notice to the Inspector who had gone to lodge the FIR, despite
there being a special provision for launching the prosecution and C
explanation was sought. Still further it was directed as follows:
“23. We, accordingly, allow this petition and quash the F.I.R. and
simultaneously it is further directed that notice shall be issued to
the concerned Inspector by the Competent Authority to show cause
as to why he deliberately lodged an F.I.R. when there is specific D
provision for prosecuting the accused by lodging a complaint. The
explanation and action taken against him, shall be forwarded to
the Court by the Competent Authority within 8 weeks from today
through Registrar General of this Court who shall place the same
before us for perusal in our chambers as soon as the same is E
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 F
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.”
G
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.

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956 SUPREME COURT REPORTS [2020] 10 S.C.R.

A SUBMISSIONS OF THE APPELLANT
6. Ms. Pinky Anand, learned Additional Solicitor General would
submit that the High Court was in error in holding that FIR under CrPC
cannot be lodged in respect of the Act. She drew our attention to Section
36 AC of the Act. Thereunder, as we shall see in greater detail, certain
B offences under the Act have been declared to be cognizable offences.
She would point out that once these offences are declared as cognizable
offences it is inconceivable that a FIR cannot be lodged under the CrPC
in regard to the same. She drew our attention to Section 4 and 5 of the
CrPC. She contended that there is nothing in the Act which detracted
from a FIR being registered in regard to offences under the Act.
C Regarding the consequences flowing from Section 32 of the Act, it is
her contention that the High Court fell in error in ignoring Section 36AC
of the Act. It is her complaint that the Act contemplated curbing of
various highly undesirable activities posing a great threat to the health
and the safety of citizens as can be gleaned from the grave offences
D which have been created under the Act. In fact, it is pointed out that
many cases where investigation was carried out on the basis of FIR
lodged under the Act will witness unmerited burial and offenders would
go scot free if the impugned judgment of the High Court is allowed to
stand. There is no bar under the Act to the registration of FIR under
CrPC.
E
7. Shri Nagamuthu, learned senior counsel submitted that having
regard to the scheme of the Act and Section 32, in particular, the judgment
of the High Court is only to be supported. He drew our attention to the
following judgments:

F a. Jeewan Kumar Raut and another v. CBI1;
b. State (NCT of Delhi) v. Sanjay2.
8. He also referred to the judgment of this Court in Kanwar Pal
Singh v. State of Uttar Pradesh and another in Criminal Appeal No.1920
of 2019. He would submit that as far as offences falling within the ambit
G of Section 36AC are concerned, a FIR under Section 154 of the CrPC is
not contemplated and cannot be registered. The mere fact that Section
36 AC of the Act declares certain offences under the Act cognizable
would not mean that the scheme of Section 32 of the Act can be jettisoned.
1
(2009) 7 SCC 526
H 2
(2014) 9 SCC 772
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 957
[K. M. JOSEPH, J.]

He would point out that prosecution can be launched only in the manner A
provided under the Act in regard to offences under the Act covered by
Section 32. The institution of the prosecution can be only at the instance
of the persons named in the said section. He points out that Section 32
came to be amended at the same time as Section 36 AC was inserted.
Nothing prevented the Legislature if it so desired to provide that the
B
offences falling under Section 32 should be investigated in the manner
provided under the provisions of the CRPC namely by lodging a FIR and
after investigating the offences by filing a report within the meaning of
Section 173 of the CrPC. The fact that such a 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 C
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 36 AC declaring certain offences
under the Act to be cognizable, he drew our attention to the second part
of the first schedule of the CrPC. He contended inter alia that even
D
without the aid of Section 36 AC, the offences under Section 27(1)(a)
and 27(1)(c) were cognizable having regard to the term of imprisonment
provided as punishment for the same. Nothing turned on the offence
being cognizable except apprehension of the offender without the aid of
a warrant. He would submit that in regard to the offences embraced by
Section 32, an F.I.R. within the meaning of the CrPC is not contemplated E
but he was at pains to point out that this did not stand in the way of an
F.I.R. being lodged if the offence constituted a distinct offence under
any other law. In such a scenario, while the lodging of the F.I.R. in
regard to the offences covered by Section 32 would be impermissible
the Officer would be within his powers if he were to register an F.I.R.
F
and proceed to investigate offences other than the offence falling under
Section 32, should they be cognizable. In this case, he would submit that
the offence alleged is under Section 27 (1)(b) of the Act which squarely
fell within the four walls of Section 32. So, also Section 18 prohibiting
certain acts fell in Chapter IV of the Act, thus, attracting Section 32. In
regard to these offences, Section 32 constitutes a bar for the registration G
of an F.I.R. under CrPC and the investigation as an ordinary case.
9. In reply to submission of learned Amicus Curiae, Ms. Pinky
Anand, learned Additional Solicitor General, drew our attention to Section
36AC and reiterated that neither the CrPC nor the Act constitute a
stumbling block to the lodging of an FIR. She also drew our attention to H
958 SUPREME COURT REPORTS [2020] 10 S.C.R.

A Section 13 of the Act. It is pointed out that Section 13 falls under Chapter
III. She contended that the Act contemplated a Special Court to deal
with the offences under the Act. The procedure leading to the institution
of the prosecution case must be governed by the provisions of the CrPC,
runs her argument.
B ANALYSIS
10. The Act purports to achieve the object of regulating the import,
manufacture, distribution and sale of drugs and cosmetics. The word
Drugs has been defined in Section 3(b). Section 3(e) defines Inspector:
“3 Definitions. —In this Act, unless there is anything repugnant in
C the subject or context,—
(e) ”Inspector” means—
(i) in relation to Ayurvedic, Siddha or Unani drug, an Inspector
appointed by the Central Government or a State Government under
section 33G; and
D
(ii) in relation to any other drug or cosmetic, an Inspector appointed
by the Central Government or a State Government under section
21;
11. Chapter III contains provisions which provide for deeming
definitions of misbranded drugs, adulterated drugs, spurious drugs,
E
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
F 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:
G
“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
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 959
[K. M. JOSEPH, J.]

areas as may be assigned to them by the Central Government or A
the State Government, as the case may be.
(2) The powers which may be exercised by an Inspector and the
duties which may be performed by him, the drugs or [classes of
drugs or cosmetics or classes of cosmetics] in relation to which
and the conditions, limitations or restrictions subject to which, such B
powers and duties may be exercised or performed shall be such
as may be prescribed.
(3) No person who has any financial interest in the import,
manufacture or sale of drugs or cosmetics shall be appointed to
be an Inspector under this section. C
(4) Every Inspector shall be deemed to be a public servant within
the meaning of section 21 of the Indian Penal Code (45 of 1860),
and shall be officially subordinate to such authority, having the
prescribed qualifications,] as the Government appointing him may
specify in this behalf.” D
(Emphasis supplied)
12. It is necessary to notice the rules relevant in this regard. Rule
(49) deals with qualifications of Inspectors. It reads as follows: -
“49. Qualifications of Inspectors. —A person who is appointed
an Inspector under the Act shall be a person who has a degree in E
Pharmacy or Pharmaceutical Sciences or Medicine with
specialisation in Clinical Pharmacology or Microbiology from a
University established in India by law: Provided that only those
Inspectors—
(i) who have not less than 18 months’ experience in the F
manufacture of at least one of the substances specified in Schedule
C, or
(ii) who have not less than 18 months’ experience in testing of at
least one of the substances in Schedule C in a laboratory approved
for this purpose by the licensing authority, or G
(iii) who have gained experience of not less than three years in
the inspection of firm manufacturing any of the substances
specified in Schedule C during the tenure of their services as
Drugs Inspectors; shall be authorised to inspect the manufacture
of the substances mentioned in Schedule C: H
960 SUPREME COURT REPORTS [2020] 10 S.C.R.

A Provided further that the requirement as to the academic
qualification shall not apply to persons appointed as Inspectors on or
before the 18th day of October, 1993.”
Rule (51) deals with duties of Inspectors in regard to sale. It reads
as follows:
B “51. Duties of Inspectors of premises licensed for sale.—Subject
to the instructions of the controlling authority, it shall be the duty
of an Inspector authorized to inspect premises licensed for the
sale of drugs—
(1) to inspect not less than once a year all establishments licensed
C for the sale of drugs within the area assigned to him;
(2) to satisfy himself that the conditions of the licences are being
observed;
(3) to procure and send for test or analysis, if necessary, imported
packages which he has reason to suspect contain drugs being
D 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
E
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;
F
(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,
G the import of which is prohibited.”
Rule (52) deals with duties of Inspectors in regard to manufacturer.
It reads as follows:
“52. Duties of inspectors specially authorised to inspect the
manufacture of drugs or cosmetics. —Subject to the instructions
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 961
[K. M. JOSEPH, J.]

of the controlling authority it shall be the duty of an Inspector A
authorized to inspect the manufacture of drugs—
(1) to inspect [not less than once a year], all premises licensed for
manufacture of drugs or cosmetics within the area allotted to him
to satisfy himself that the conditions of the licence and provisions
of the Act and Rules thereunder are being observed; B
(2) in the case of establishments licensed to manufacture products
specified in Schedules C and C (1) to inspect the plant and the
process of manufacture, the means employed for standardizing
and testing the drug, the methods and place of storage, the technical
qualifications of the staff employed and all details of location, C
construction and administration of the establishment likely to affect
the potency or purity of the product;
(3) to send forthwith to the controlling authority after each
inspection a detailed report indicating the conditions of the licence
and provisions of the Act and rules thereunder which are being D
observed and the conditions and provisions, if any, which are not
being observed;
(4) to take samples of the drugs manufactured on the premises
and send them for test or analysis in accordance with these Rules;
(5) to institute prosecutions in respect of breaches of the Act and E
rules thereunder.”
Section 22 deals with the powers of the Inspector. reads as follows:
“22. Powers of Inspectors.—(1) Subject to the provisions of section
23 and of any rules made by the Central Government in this behalf,
F
an Inspector may, within the local limits of the area for which he
is appointed,—” (a) inspect,—”
(i) any premises wherein any drug or cosmetic is being
manufactured and the means employed for standardising and
testing the drug or cosmetic;
G
(ii) any premises wherein any drug or cosmetic is being sold, or
stocked or exhibited or offered for sale, or distributed;
(b) take samples of any drug or cosmetic,—
(i) which is being manufactured or being sold or is stocked or
exhibited or offered for sale, or is being distributed; H
962 SUPREME COURT REPORTS [2020] 10 S.C.R.

A (ii) from any person who is in the course of conveying, delivering
or preparing to deliver such drug or cosmetic to a purchaser or a
consignee;
(c) at all reasonable times, with such assistance, if any, as he
considers necessary,—
B (i) search any person, who, he has reason to believe, has secreted
about his person, any drug or cosmetic in respect of which an
offence under this Chapter has been, or is being, committed; or
(ii) enter and search any place in which he has reason to believe
that an offence under this Chapter has been, or is being, committed;
C 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,
D
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
E 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
F object found with any person, or in any place, vehicle, vessel or
other conveyance referred to in clause (c), and seize the same if
he has reason to believe that it may furnish evidence of the
commission of an offence punishable under this Act or the Rules
made thereunder;
G (cca) require any person to produce any record, register, or other
document relating to the manufacture for sale or for distribution,
stocking, exhibition for sale, offer for sale or distribution of any
drug or cosmetic in respect of which he has reason to believe that
an offence under this Chapter has been, or is being, committed;
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 963
[K. M. JOSEPH, J.]

(d) exercise such other powers as may be necessary for carrying A
out the purposes of this Chapter or any rules made thereunder.
22(2)The provisions of the Code of Criminal Procedure, 1973 (2
of 1974)] shall, so far as may be, apply to any search or seizure
under this Chapter as they apply to any search or seizure made
under the authority of a warrant issued under section 94 of the B
said Code.
(2A) Every record, register or other document seized under clause
(cc) or produced under clause (cca) shall be returned to the person,
from whom they were seized or who produce the same, within a
period of twenty days of the date of such seizure or production, C
as the case may be, after copies thereof or extracts therefrom
certified by that person, in such manner as may be prescribed,
have been taken.
(3)If any person wilfully obstructs an Inspector in the exercise of
the powers conferred upon by or under this Chapter or refuses to D
produce any record, register or other document when so required
under clause (cca) of sub-section (1), he shall be punishable with
imprisonment which may extend to three years or with fine, or
with both.”
(Emphasis supplied) E
13. Section 23 provides for the procedure to be followed by the
Inspector. It includes the tendering of fair price when a sample is taken
of a drug or cosmetic under the Chapter. There are various other
provisions regarding the procedure to be followed by the Inspector which
includes seizure of record/ register, documents or other material objects F
and the need to notify a judicial Magistrate [See Section 23(6)].
14. Section 27 provides for penalty for manufacture, sale etc. of
drug in contravention of Chapter IV. It reads as follows:
“27. Penalty for manufacture, sale, etc., of drugs in contravention
of this Chapter.- Whoever, himself or by any other person on his G
behalf, manufactures for sale or for distribution, or sells, or stocks
or exhibits or offers for sale or distributes,-
(a) any drug deemed to be adulterated under section 17A or
spurious under section 17B and which when used by any
person for or in the diagnosis, treatment, mitigation, or H
964 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 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
B
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:
C 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
D or spurious drugs referred to in this clause has caused the
death of a person who used such drugs, the fine imposed
on and realised from, the person convicted under this clause,
shall be paid to the relative of the person who had died due
to the use of the adulterated or spurious drugs referred to
E in this clause.
Explanation.—For the purposes of the second proviso, the
expression “relative” means—
(i) spouse of the deceased person; or

F (ii) a minor legitimate son, and unmarried legitimate daughter and
a widowed mother; or
(iii) parent of the minor victim; or
(iv) if wholly dependent on the earnings of the deceased person
at the time of his death, a son or a daughter who has attained the age of
G eighteen years; or
(v) any person, if wholly or in part, dependent on the earnings of
the deceased person at the time of his death,—
(a) the parent; or

H (b) a minor brother or an unmarried sister; or
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 965
[K. M. JOSEPH, J.]

(c) a widowed daughter-in-law; or A
(d) a widowed sister; or
(e) a minor child of a pre-deceased son; or
(f) a minor child of a pre-deceased daughter where no parent of
the child is alive; or B
(g) the paternal grandparent if no parent of the member is alive;]
(b) any drug—
(i) deemed to be adulterated under section 17A, but not being
a drug referred to in clause (a), or
C
(ii) without a valid licence as required under clause (c) of section
18, shall be punishable with imprisonment for a term which
shall not be less than three years but which may extend to five
years and with fine which shall not be less than one lakh rupees
or three times the value of the drugs confiscated, whichever is
D
more:
Provided that the Court may, for any adequate and special
reasons to be recorded in the judgment, impose a sentence of
imprisonment for a term of less than three years and of fine of
less than one lakh rupees;
E
(c) any drug deemed to be spurious under section 17B, but not
being a drug referred to in clause (a) shall be punishable
with imprisonment for a term which shall not less than seven
years but which may extend to imprisonment for life and
with fine which shall not be three lakh rupees or three times
the value of the drugs confiscated, whichever is more: F

Provided that the Court may, for any adequate and
special reasons, to be recorded in the judgment, impose a
sentence of imprisonment for a term of 8 [less than seven
years but not less than three years and of fine of less than
one lakh rupees]; G

(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
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966 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 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
B 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:
C “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
D 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 recognised consumer association whether such person is a
E member of that association or not.
(2) Save as otherwise provided in this Act, no court inferior to
that of a Court of Session shall try an offence punishable under
this Chapter.
(3) Nothing contained in this Chapter shall be deemed to prevent
F any person from being prosecuted under any other law for any
act or omission which constitutes an offence against this Chapter.”
Section 32B provides for compounding of certain offences.
16. Chapter IV-A provides for “Provisions relating to Ayurvedic,
G 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
H Ayurvedic, Siddha and Unani drugs. Section 33M reads as follows:
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 967
[K. M. JOSEPH, J.]

“33M. Cognizance of offences.— A
(1) No prosecution under this Chapter shall be instituted except
by an Inspector [with the previous sanction of the authority
specified under sub-section (4) of section 33G.
(2) No Court inferior to that [of a Metropolitan Magistrate or of a
Judicial Magistrate of the first class] shall try an offence punishable B
under this Chapter.”
17. 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 C
offences are to be tried summarily.
18. Section 36AB provides for Special Courts. It declares that
the Central Government or the State Government in consultation with
the Chief Justice of the High Court, shall, for certain offences designate
one or more Court of Sessions as a Special Court or Special Courts. D
Sub-section (2) provides that the Special Court may try an offence other
than the offences covered by sub-section (1) which may be charged
against the accused at the same trial. Section 36AC around which much
arguments were addressed reads as follows:
“36AC. Offences to be cognizable and non-bailable in certain E
cases. — (1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974),—
(a) every offence, relating to adulterated or spurious drug and
punishable under clauses (a) and (c) of sub-section (1) of section
13, clause (a) of sub-section (2) of section 13, sub-section (3) of F
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 G
(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— H
968 SUPREME COURT REPORTS [2020] 10 S.C.R.

A (i) the Public Prosecutor has been given an opportunity to oppose
the application for such release; and
(ii) where the Public Prosecutor opposes the application, the Court
is satisfied that there are reasonable grounds for believing that he
is not guilty of such offence and that he is not likely to commit any
B 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
C 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
D 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.”
E Section 36AD also being relevant is referred to:
“36AD Application of Code of Criminal Procedure, 1973 to
proceedings before Special Court. —
(1) Save as otherwise provided in this Act, the provisions of the
Code of Criminal Procedure, 1973 (2 of 1974) (including the
F
provisions as to bails or bonds), shall apply to the proceedings
before a Special Court and for the purposes of the said provisions,
the Special Court shall be deemed to be a Court of Session and
the person conducting the prosecution before the Special Court,
shall be deemed to be a Public Prosecutor:
G Provided that the Central Government or the State
Government may also appoint, for any case or class or group of
cases, a Special Public Prosecutor.
(2) A person shall not be qualified to be appointed as a Public
Prosecutor or a Special Public Prosecutor under this section unless
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 969
[K. M. JOSEPH, J.]

he has been in practice as an advocate for not less than seven A
years, under the Union or a State, requiring special knowledge of
law.
(3) Every person appointed as a Public Prosecutor or a Special
Public Prosecutor under this section shall be deemed to be a Public
Prosecutor within the meaning of clause (u) of section 2 of the B
Code of Criminal Procedure, 1973 (2 of 1974) and the provisions
of that Code shall have effect accordingly.”
RELEVANT PROVISIONS OF THE CRPC
19. Section 2(a) defines “bailable offence” as offence shown as
such in the First Schedule, or which is made bailable under any other C
law for the time being in force. “Non-bailable offence” means any
other offence. ‘Cognizable offence’ is defined in Section 2(c). It reads
as follows:
“2(c) “ cognizable offence” means an offence for which, and”
cognizable case” means a case in which, a police officer may, in D
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:-
E
“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 F
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: G
“2(h)”investigation” includes all the proceedings under this Code
for the collection of evidence conducted by a police officer or by
any person (other than a Magistrate) who is authorised by a
Magistrate in this behalf.”
(Emphasis supplied) H
970 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 22. ‘Police report’ is defined in Section 2 (r) as meaning a report
forwarded by a police officer to a Magistrate under sub-section (2) of
Section 173. Sections 4 and 5 being relevant, we advert to the same.
“4. Trial of offences under the Indian Penal Code and other laws.-
(1) All offences under the Indian Penal Code (45 of 1860 )
B shall be investigated, inquired into, tried, and otherwise dealt
with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated,
inquired into, tried, and otherwise dealt with according to the
same provisions, but subject to any enactment for the time
C being in force regulating the manner or place of investigating,
inquiring into, trying or otherwise dealing with such offences.
5. Saving.- Nothing contained in this Code shall, in the absence of
a specific provision to the contrary, affect any special or local law
for the time being in force, or any special jurisdiction or power
D conferred, or any special form of procedure prescribed, by any
other law for the time being in force.”
23. Chapter XII comes under the heading ‘Information to the
Police and their Powers to Investigate’. Section 154 inter alia provides
that every information relevant to the commission of a cognizable offence
E 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
F as may be prescribed. Section 155 deals with information as to non-
cognizable cases and the manner of investigation of such cases. No
police officer can investigate a non-cognizable offence without the order
of the Magistrate having power to try such case or commit such case
for trial. Section 156 reads as under:
“156. Police officer’s power to investigate cognizable case. –
G
(1) Any officer in charge of a police station may, without the order
of a Magistrate, investigate any cognizable case which a Court
having jurisdiction over the local area within the limits of such
station would have power to inquire into or try under the provisions
of Chapter XIII.
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 971
[K. M. JOSEPH, J.]

(2) No proceeding of a police officer in any such case shall at any A
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”. B
(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. C

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 D
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; E
(b) upon a police report of such facts;
(c) upon information received from any person other than a police
officer, or upon his own knowledge, that such offence has been
committed.
F
(2) The Chief Judicial Magistrate may empower any Magistrate
of the second class to take cognizance under sub- section (1) of
such offences as are within his competence to inquire into or try.”
26. Chapter XV deals with Complaints to Magistrates. Section
202 having been referred by the learned Amicus Curiae is extracted: G
“202. Postponement of issue of process.-(1) Any Magistrate, on
receipt of a complaint of an offence of which he is authorised to
take cognizance or which has been made over to him under section
192, may, if he thinks fit, postpone the issue of process against the
H
972 SUPREME COURT REPORTS [2020] 10 S.C.R.

A accused, and either inquire into the case himself or direct an
investigation to be made by a police officer or by such other person
as he thinks fit, for the purpose of deciding whether or not there is
sufficient ground for proceeding: Provided that no such direction
for investigation shall be made,-
B (a) where it appears to the Magistrate that the offence complained
of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the
complainant and the witnesses present (if any) have been
examined on oath under section 200.
C (2) In an inquiry under sub- section (1), the Magistrate may, if he
thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session, he
shall call upon the complainant to produce all his witnesses and
D examine them on oath.
(3) If an investigation under sub- section (1) is made by a person
not being a police officer, he shall have for that investigation all
the powers conferred by this Code on an officer- in- charge of a
police station except the power to arrest without warrant.”
E
(Emphasis supplied)
27. Chapter XVI comes under the chapter heading
“Commencement of Proceedings before Magistrates”. Section 204 deals
with “Issue of Process” in a case where the Magistrate taking cognizance
is of the view that there is sufficient ground for proceeding in the matter.
F
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
G offences against other laws. It reads as follows:
“Classification of Offences against other laws

H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 973
[K. M. JOSEPH, J.]

Offence Cognizable or Bailable or By what Court
A
non-cognizable non-bailable triable

1 2 3 4
If punishable with Cognizable Non-bailable Court of
death, imprisonment Session.
for life, or
imprisonment for B
more than 7 years;
If punishable with Cognizable Non-bailable Magistrate of
imprisonment for 3 the first class.
years, and upwards
but not more than 7
years.
C
If punishable with Non-cognizable Bai lable Any Magistrate.
imprisonment for less
than 3 years or with
fine only.

28. Section 4(2) of the CrPC declares that all offences under any D
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 E
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 F
which would prevail.
IMPACT OF SECTION 2 OF THE ACT
29. We have noticed that Section 2 of the Act declares that the
provisions of the Act shall be in addition to and not in derogation of the
Dangerous Drugs Act 1930 and any other law for the time being in G
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, we have no hesitation in repelling the same. The purport of Section
2 appears to be that Legislature intended to keep alive the provisions of
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974 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 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. Nothing further needs to be stated about Section
2 and we are of the view that it does not have any further repercussion
B
on the issue at hand.
SECTION 32 OF THE ACT
30. Coming to Section 32 of the Act, as already noted by us it falls
in chapter IV. Inspectors are appointed by the Central Government or
C 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,
D material object and seize them. The Legislature has undoubtedly applied
the provisions of the CrPC in regard to searches under the Act. Section
23 elaborately provides for procedure to be adopted by Inspectors.
31. Section 32 falling under section heading ‘Cognizance of
offences’ declares, in unambiguous words, that prosecution, under
E 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
F 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
G by Act 22 of 2008. Prior to the substitution it read as follows:
“32 Cognizance of offences. — (1) No prosecution under
this Chapter shall be instituted except by an Inspector or by the
person aggrieved or by a recognised consumer association whether
such person is a member of that association or not.
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 975
[K. M. JOSEPH, J.]

(2) No court inferior to that of a Metropolitan Magistrate or of a A
Judicial Magistrate of the first class shall try an offence punishable
under this Chapter.
(3) Nothing contained in this Chapter shall be deemed to prevent
any person from being prosecuted under any other law for any
act or omission which constitutes an offence against this Chapter.” B
32. 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 C
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, 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 D
the special provision, as contained in Section 32 of the Act.
33. Section 193 of the CrPC reads as follows:
“193. Cognizance of offences by Courts of Session. Except as
otherwise expressly provided by this Code or by any other law E
for the time being in force, no Court of Session shall take
cognizance of any offence as a Court of original jurisdiction unless
the case has been committed to it by a Magistrate under this
Code.”
34. Section 195 prohibits the Court from taking any cognizance of F
the offences mentioned therein except on the complaint in writing by the
persons named therein.
35. Section 198A and Section 199 likewise permit the courts to
take cognizance only upon the complaint made by the persons mentioned
therein. Similarly, Section 199 taboos cognizance of offence of defamation
G
except on the complaint made by some aggrieved person.
36. Section 36AD of the Act applies the provisions of the CrPC
except where it is otherwise provided in the Act in 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
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976 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 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
B 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
C 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
D and the points of delivery. He is expected also, where he has reason to
believe that an offence under the Act has been committed, to search
any person, enter any place, stop and search any vehicle, examine records,
and documents and seize the same. Last but not the least, Section 22(1)(d)
declares that he may exercise other powers as may be necessary for
carrying the purposes of Chapter IV or any Rules made thereunder.
E The elaborate procedure to be followed by the Inspectors is also provided
by the law.
38. Section 26 of the Drugs and Cosmetics Act, 1940, reads as
follows:

F “26. Purchaser of drug or cosmetic enabled to obtain test
or analysis.—Any person or any recognised consumer association,
whether such person is a member of that association or not shall,
on application in the prescribed manner and on payment of the
prescribed fee, be entitled to submit for test or analysis to a
Government Analyst any drug or cosmetic purchased by him or it
G and to receive a report of such test or analysis signed by the
Government Analyst.
Explanation.—For the purposes of this section and section
32, “recognised consumer association” means a voluntary
consumer association registered under the Companies Act, 1956
H or any other law for the time being in force.”
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 977
[K. M. JOSEPH, J.]

39. A perusal of the same would indicate the role which is assigned A
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
B
drug or cosmetic purchased by the person or the association and to
receive a report of such test or analysis signed by the Government
Analyst. There can be no gainsaying that armed with a report which
reveals the commission of an offence under Chapter IV of the Act, they
can invoke Section 32 and prosecute the offender.
40. Section 32 of the Act undoubtedly provides for taking C
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 D
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 E
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 F
power as per the concerned provisions. Being a special enactment, the
manner of dealing with the offences under the Act, would be governed
by the provisions of the Act. It is to be noted that Section 32 declares
that no court inferior to the Court of Sessions shall try offence punishable
under Chapter IV. We have noticed that under Section 193 of the CrPC,
no Court of Sessions can take cognizance of any offence as a Court of G
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 H
978 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 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
B
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
C examining the complainant and witnesses.
41. The learned Amicus Curiae, when queried about the procedure
to be adopted when a complaint is lodged by persons falling in Section
32(C) and (d), viz., the aggrieved person or a voluntary association, it
was submitted that the Magistrate can, under Section 202 of the CrPC,
D order an investigation by the Police Officer or any other person. A perusal
of Section 202 would show that in regard to an offence falling under
Chapter IV of the Act, being exclusively triable, by a Court of Sessions,
the proviso to sub-Section (1) to Section 202 prohibits the direction for
investigation under Section 202. The proviso to sub-Section (2) of Section
202 contemplates that when an offence is exclusively triable by the Court
E 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
F 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
G 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
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 979
[K. M. JOSEPH, J.]

support of an oath but the examination must be under an oath. A
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
B
amendment.
42. 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 C
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. D
43. As far as a complainant setting the criminal law in motion is
concerned, what is contemplated is that by the mechanism of cognizance
under Section 200 read with Section 202, culminating in the issuance of
summons or warrant under Section 204, there is material before the
Magistrate and the court is assured that the case is not frivolous and E
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 F
which weighed with the Magistrate and which is also made available to
him under Section 208 of the Act. In such circumstances, we need not
consider further the argument of the learned Amicus Curiae that a
direction for investigation by the Magistrate under Section 202 would
not be tabooed as the result of the investigation by the Police Officer G
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.
H
980 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 44. The learned Amicus Curiae submitted that the registering of
an FIR under Section 154 of the CrPC in regard to reference under
Chapter IV of the Act is a futile exercise. It is his submission that the
filing of the First Information Statement (FIS) (We notice his complaint
that even courts refer to the FIS as the complaint whereas a complaint
is what is contemplated under Section 190 of the CrPC which is filed
B
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
C 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
D
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
E 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
F the limitations under the CrPC or and under any other law for the time
being in force on grant of bail. The special powers, however, of the High
Court regarding the grant of bail under Section 439 of the CrPC, is
preserved as found therein.
46. The argument of Ms. Pinky Anand, learned Additional Solicitor
G General is that having regard to the fact that certain offences under
Section 36AC have been declared cognizable, the powers of the police
under the CrPC including the duty to register a FIR under Section 154
cannot be obviated. The only prohibition is against the Police Officer
lodging the charge sheet. There can be no taboo on the Police Officer
registering the FIR and even conducting the investigation. This brings up
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 981
[K. M. JOSEPH, J.]

another issue, who is the person who can arrest a person accused of an A
offence in Chapter IV of the Act? Is it open to a Police Officer acting
under the CrPC to arrest such person? Is the Inspector under the Act
empowered to arrest a person accused of an offence under Chapter IV
of the Act? Before we deal with this aspect, we may look at how this
Court spoke in the past in the matter of taking cognizance among other
B
aspects.
A LOOK AT HOW THIS COURT SPOKE IN THE PAST
47. In Jeewan Kumar Raut and another v. Central Bureau of
Investigation3, the case arose under the Transplantation of Human Organs
Act, 1994 (TOHO Act). Section 22 of this Act reads as follows: C
“22. Cognizance of offence.—
(1) No court shall take cognizance of an offence under this Act
except on a complaint made by—
(a) the Appropriate Authority concerned, or any officer authorised D
in this behalf by the Central Government or the State Government
or, as the case may be, the Appropriate Authority; or
(b) a person who has given notice of not less than sixty days, in
such manner as may be prescribed, to the Appropriate Authority
concerned, of the alleged offence and of his intention to make a
E
complaint to the court.
(2) No court other than that of a Metropolitan Magistrate or a
Judicial Magistrate of the first class shall try any offence punishable
under this Act.
(3) Where a complaint has been made under clause (b) of sub- F
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 IPC and Sections 18 G
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.
3
(2009) 7 SCC 526 H
982 SUPREME COURT REPORTS [2020] 10 S.C.R.

A Appellant no.1 surrendered. The respondent filed a complaint under
Section 22 of TOHO Act pointing out that the period of 90 days from the
detention expired on 07.05.2008, Appellant no.2 filed an application for
grant of bail within the meaning of Section 167(2) of the CrPC. It was,
while considering the same, this Court held, inter alia, as follows:
B “19. TOHO is a special Act. It deals with the subjects
mentioned therein, viz. offences relating to removal of human
organs, etc. Having regard to the importance of the subject only,
enactment of the said regulatory statute was imperative.
20. TOHO provides for appointment of an appropriate
C authority to deal with the matters specified in sub-section (3) of
Section 13 thereof. By reason of the aforementioned provision,
an appropriate authority has specifically been authorised inter alia
to investigate any complaint of the breach of any of the provisions
of TOHO or any of the rules made thereunder and take
appropriate action. The appropriate authority, subject to exceptions
D provided for in TOHO, thus, is only authorised to investigate cases
of breach of any of the provisions thereof, whether penal or
otherwise.
21. Ordinarily, any person can set the criminal law in motion.
Parliament and the State Legislatures, however, keeping in view
E the sensitivity and/or importance of the subject, have carved out
specific areas where violations of any of the provisions of a special
statute like TOHO can be dealt with only by the authorities
specified therein. The FIR lodged before the officer in charge of
Gurgaon Police Station was by way of information. It disclosed
F not only commission of an offence under TOHO but also under
various provisions of the Penal Code. The officer in charge of the
police station, however, was not authorised by the appropriate
Government to deal with the matter in relation to TOHO; but, the
respondent was. In that view of the matter, the investigation of
the said complaint was handed over to it.
G
xxx xxx xxx xxx
23. TOHO being a special Act and the matter relating to
dealing with offences thereunder having been regulated by reason
of the provisions thereof, there cannot be any manner of doubt
whatsoever that the same shall prevail over the provisions of the
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 983
[K. M. JOSEPH, J.]

Code. The investigation in terms of Section 13(3)(iv) of TOHO, A
thus, must be conducted by an authorised officer. Nobody else
could do it. For the aforementioned reasons, the officer in charge
of Gurgaon Police Station had no other option but to hand over
the investigation to the appropriate authority.
xxx xxx xxx xxx B
25. Section 22 of TOHO prohibits taking of cognizance
except on a complaint made by an appropriate authority or the
person who had made a complaint earlier to it as laid down therein.
The respondent, although, has all the powers of an investigating
agency, it expressly has been statutorily prohibited from filing a C
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. D
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, E
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 F
laid down therein and not by any other mode. The procedure laid
down in TOHO, thus, would permit the respondent to file a
complaint and not a report which course of action could have
been taken recourse to but for the special provisions contained in
Section 22 of TOHO.” G
(Emphasis supplied)
49. We may also notice the hope expressed by the Court for
Parliamentary intervention expressing doubt about the absence of power
to arrest with the Officer who is authorised to carry out the investigation:
H
984 SUPREME COURT REPORTS [2020] 10 S.C.R.

A “37. In the present case, however, the respondent having
specially been empowered both under the 1946 Act as also under
the Code to carry out investigation and file a charge-sheet is
precluded from doing so only by reason of Section 22 of TOHO.
It is doubtful as to whether in the event of authorisation of an
officer of the Department to carry out investigation on a complaint
B
made by a third party, he would be entitled to arrest the accused
and carry on investigation as if he is a police officer. We hope that
Parliament would take appropriate measures to suitably amend
the law in the near future.”
50. In Jamiruddin Ansari v. Central Bureau of Investigation and
C another4, the case arose under the Maharashtra Control of Organized
Crime Act, 1999 (MCOCA). A private complaint was filed against certain
accused persons by a person. The Special Judge ordered the
Commissioner of Police to investigate into the complaint under Section
156(3) of the CrPC. The State took the stand in a Writ Petition challenging
D the said order that in view of Sections 23(2) of the MCOCA sans previous
sanction as contemplated therein, the Court could not take cognizance.
It is necessary to advert to Sections 9 and 23 of the said Act. Sections
(9) inter alia and 23 of MCOCA reads as follows:
“9. Procedure and powers of Special Court.—(1) A Special
Court may take cognizance of any offence without the accused
E being committed to it for trial, upon receiving a complaint of facts
which constitute such offence or upon a police report of such
facts.
(2)-(3)***
xxx xxx xxx xxx
F
“23. Cognizance of, and investigation into, an offence.—
(1) Notwithstanding anything contained in the Code,—
(a) no information about the commission of an offence of
organised crime under this Act, shall be recorded by a police officer
without the prior approval of the police officer not below the rank
G of the Deputy Inspector General of Police;
(b) no investigation of an offence under the provisions of
this Act shall be carried out by a police officer below the rank of
the Deputy Superintendent of Police.
4
H (2009) 6 SCC 316
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 985
[K. M. JOSEPH, J.]

(2) No Special Court shall take cognizance of any offence under A
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, B
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 Criminal Procedure
Code and the learned Special Judge would not, therefore, be entitled C
to invoke the provisions of Section 156(3) CrPC for ordering a
special inquiry on a private complaint and taking cognizance
thereupon, without traversing the route indicated in Section 23
of MCOCA. In other words, even on a private complaint about the
commission of an offence of organised crime
under MCOCA cognizance cannot be taken by the Special Judge D
without due compliance with sub-section (1) of Section 23, which
starts with a non obstante clause.
68. As indicated hereinabove, the provisions of Section 23 are the
safeguards provided against the invocation of the provisions of
the Act which are extremely stringent and far removed from the E
provisions of the general criminal law. If, as submitted on behalf
of some of the respondents, it is accepted that a private complaint
under Section 9(1) is not subject to the rigours of Section 23, then
the very purpose of introducing such safeguards lose their very
raison d’être. At the same time, since the filing of a private F
complaint is also contemplated under Section 9(1) of MCOCA, for
it to be entertained it has also to be subject to the rigours of Section
23. Accordingly, in view of the bar imposed under sub-section (2)
of Section 23 of the Act, the learned Special Judge is precluded
from taking cognizance on a private complaint upon a separate
inquiry under Section 156(3) CrPC. The bar of Section 23(2) G
continues to remain in respect of complaints, either of a private
nature or on a police report.”
52. Thereafter, the Court proceeded to harmonise the provisions
by holding as follows:
H
986 SUPREME COURT REPORTS [2020] 10 S.C.R.

A “69. In order to give a harmonious construction to the
provisions of Section 9(1) and Section 23 of MCOCA, upon receipt
of such private complaint the learned Special Judge has to forward
the same to the officer indicated in clause (a) of sub-section (1)
of Section 23 to have an inquiry conducted into the complaint by a
police officer indicated in clause (b) of sub-section (1) and only
B
thereafter take cognizance of the offence complained of, if sanction
is accorded to the Special Court to take cognizance of such offence
under sub-section (2) of Section 23.”
53. It is pertinent to notice that in the said enactment, under Section
23, there was a taboo against recording of any information under the
C Act without the prior approval of the Police Officer not below the rank
of the Deputy Inspector General of Police. This must be understood as
supplanting the provisions of Section 154 of the CrPC to the extent that
the modification was spelt out. Not only could the information not be so
recorded without the prior approval, investigation also cannot be carried
D out except by a Police Officer of the rank of Deputy Superintendent of
Police and above. This is apart from the prohibition against taking
cognizance of an offence under the said Act without the previous sanction
of the Police Officer not below the rank of Additional Director General
of Police.
E 54. The decision of this Court in H.N. Rishbud and Inder Singh v.
State of Delhi, ETC.5 dealt with a case under the Prevention of Corruption
Act, 1947. Investigation in the said case was undertaken by an Officer
without authorisation by the Magistrate under Section 5(4) of the
Prevention of Corruption Act, 1947. Cognizance was taken and the trial
went on. The accused thereupon pointed out the flaw in the investigation.
F 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
G arrest of the suspected offender, (4) Collection of evidence relating
to the commission of the offence which may consist of (a) the
examination of various persons (including the accused) and the
reduction of their statements into writing, if the officer thinks fit,
5
AIR 1955 SC 196
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 987
[K. M. JOSEPH, J.]

(b) the search of places or seizure of things considered necessary A
for the investigation and to be produced at the trial, and (5)
Formation of the opinion as to whether on the material collected
there is a case to place the accused before a Magistrate for trial
and if so taking the necessary steps for the same by the filing of a
charge-sheet under Section 173. …”
B
55. No doubt, the Court went on to take the view that the invalidity
of the investigation, if brought to the knowledge of the Court at a
sufficiently early stage, remedial steps may be taken to get the illegality
cured. However, it was found that if cognizance is taken on a Police
Report vitiated by the breach of a mandatory provision relating to
investigation, the result of the trial cannot be affected unless it has resulted C
in a miscarriage of justice. It is pertinent to note that the Court made the
following observations as well:
“9. … Here we are not concerned with the effect of the breach
of a mandatory provision regulating the competence or procedure
of the Court as regards cognizance or trial. It is only with reference D
to such a breach that the question as to whether it constitutes an
illegality vitiating the proceedings or a mere irregularity arises.”
(Emphasis supplied)
56. In Institute of Chartered Accountants of India v. Vimal Kumar E
Surana and another6, the matter arose under the Chartered Accounts
Act, 1949. The respondent, who had passed the examination of Chartered
Accountant but was not a member of the appellant-Institute, was sought
to be prosecuted on the basis that he had represented before the Tax
Authorities on the basis of the Power of Attorney or as Legal
Representative and was submitting documents by preparing forged seals. F
The Authorised Representative of the appellant-Institute submitted a
complaint to the Police Officer. After investigation, the Police filed a
challan of offences under the IPC and Sections 24 and 26 of the Chartered
Accountants Act. The same was successfully questioned by the
respondent on the basis that it fell foul of the mandate of Section 28 of G
the Chartered Accounts Act.
57. Section 28 of the Chartered Accountants Act, 1949 reads as
follows:

6
(2011) 1 SCC 534 H
988 SUPREME COURT REPORTS [2020] 10 S.C.R.

A “28. Sanction to prosecute
No person shall be prosecuted under this Act except on a
complaint made by or under the order of the Council or of the
Central Government.”
58. This Court went on to notice the line of decisions rendered by
B 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 another (supra):
C “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 IPC, then a
D complaint can be filed by or under the order of the Council or of
the Central Government under Section 28, which may ultimately
result in imposition of the punishment prescribed under Section 24
or sub-section (2) of Sections 24-A, 25 or 26 and such member or
non-member or company can also be prosecuted for any identified
offence under IPC.
E
21. The object underlying the prohibition contained in Section
28 is to protect the persons engaged in profession of Chartered
Accountants against false and untenable complaints from
dissatisfied litigants and others. However, there is nothing in the
language of the provisions contained in Chapter VII from which it
F can be inferred that Parliament wanted to confer immunity upon
the members and non-members from prosecution and punishment
if the action of such member or non-member amounts to an offence
under IPC or any other law.
xxx xxx xxx xxx
G
41. It is also apposite to mention that except the provision
contained in Section 28 against the prosecution of a person, who
is alleged to have acted in contravention of sub-section (1) of
Sections 24, 24-A, 25 or 26 otherwise then on a complaint made
by or under the order of the Council or the Central Government,
H the Act does not specify the procedure to be followed for punishing
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 989
[K. M. JOSEPH, J.]

such person. In the absence of any such provision, the procedure A
prescribed in CrPC has to be followed for inquiry, investigation
and trial of the complaint which may be filed for contravention of
any of the provisions contained in Chapter VII of the Act—Section
4 CrPC.”
59. In State (NCT of Delhi) v. Sanjay, ETC., ETC.7, the matter B
arose under the Mines and Minerals Development and Regulation Act,
1957 (MMDR Act) as also under Sections 378 and 379 of the IPC and
the question which arose for decision was whether the provisions of
Sections 21 and 22, apart from other provisions of the MMDR Act,
operated as a bar to prosecution for offences under Section 379/114 and
other provisions of the IPC. Section 21 of the said Act prescribes various C
penalties. Section 22 deals with cognizance of offences and it reads as
follows:
“22.Cognizance of offences.—No court shall take
cognizance of any offence punishable under this Act or any Rules
made thereunder except upon complaint in writing made by a D
person authorised in this behalf by the Central Government or the
State Government.”
60. The Court was dealing with appeals from judgments of High
Courts of Delhi and Gujarat. The registration of the cases was challenged
on the basis of Section 22 of the MMDR Act. Paragraphs 8, 9, 10 and 11 E
reveals the questions which arose and how it came to be dealt with by
the High Court:
“8. Criminal Appeal No. 499 of 2011, as stated above, arose
out of the order [Sanjay v. State, (2009) 109 DRJ 594] passed by
the Delhi High Court. The Delhi High Court formulated three F
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
G
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.

7
(2014) 9 SCC 772 H
990 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 9. The Delhi High Court after referring various provisions
on the MMDR Act vis-à-vis the Code of Criminal Procedure
disposed of the application directing the respondent to amend the
FIR, which was registered, by converting the offence mentioned
therein under Sections 379/411/120-B/34 IPC to Section 21 of the
MMDR Act. The High Court in para 18 of the impugned order
B
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:
C (i) The offence under the said Act being cognizable
offence, the police could have registered an FIR in this case;
(ii) However, so far as taking cognizance of an
offence under the said Act is concerned, it can be taken by
the Magistrate only on the basis of a complaint filed by an
D authorised officer, which may be filed along with the police
report;
(iii) Since the offence of mining of sand without
permission is punishable under Section 21 of the said Act,
the question of the said offence being an offence under
E Section 379 IPC does not arise because the said Act makes
illegal mining as an offence only when there is no permit/
licence for such extraction and a complaint in this regard is
filed by an authorised officer.”
10. On the other hand the Gujarat High Court formulated the
F following questions for consideration:
(1) Whether Section 22 of the Act would debar even lodging
an FIR before the police with respect to the offences punishable
under the said Act and the Rules made thereunder?
(2) In case such FIRs are not debarred and the police are
G permitted to investigate, can the Magistrate concerned take
cognizance of the offences on a police report?
(3) What would be the effect on the offences punishable
under the Penal Code in view of the provisions contained in the
Act?
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 991
[K. M. JOSEPH, J.]

11. The Gujarat High Court came to the following conclusion: A
(i) The offence under the said Act being cognizable
offence, the police could have registered an FIR in this case;
(ii) However, so far as taking cognizance of offence
under the said Act is concerned, it can be taken by the
Magistrate only on the basis of a complaint filed by an authorised B
officer, which may be filed along with the police report;
(iii) Since the offence of mining of sand without
permission is punishable under Section 21 of the said Act, the
question of said offence being an offence under Section 379
IPC does not arise because the said Act makes illegal mining C
as an offence only when there is no permit/licence for such
extraction and a complaint in this regard is filed by an authorised
officer.”
61. The Gujarat High Court also held that Section 22 did not prohibit
registering an FIR by the Police in regard to offence under the MMDR D
Act and the Rules thereunder. However, it was not open to the Magistrate
to take cognizance. This Court, after referring to the decisions in Sanjay,
ETC., ETC. (supra), held as follows:
“69. Considering the principles of interpretation and the
wordings used in Section 22, in our considered opinion, the provision E
is not a complete and absolute bar for taking action by the police
for illegal and dishonestly committing theft of minerals including
sand from the riverbed. The Court shall take judicial notice of the
fact that over the years rivers in India have been affected by the
alarming rate of unrestricted sand mining which is damaging the F
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. G
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 H
992 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 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 cognizance on the basis of the
complaint filed before it by a duly authorised officer. In case of
breach and violation of Section 4 and other provisions of the Act,
the police officer cannot insist the Magistrate for taking cognizance
B
under the Act on the basis of the record submitted by the police
alleging contravention of the said Act. In other words, the
prohibition contained in Section 22 of the Act against prosecution
of a person except on a complaint made by the officer is attracted
only when such person is sought to be prosecuted for contravention
C of Section 4 of the Act and not for any act or omission which
constitutes an offence under the Penal Code.
71. However, there may be a situation where a person
without any lease or licence or any authority enters into river and
extracts sand, gravel and other minerals and remove or transport
D those minerals in a clandestine manner with an intent to remove
dishonestly those minerals from the possession of the State, is
liable to be punished for committing such offence under Sections
378 and 379 of the Penal Code.
72. From a close reading of the provisions of the MMDR
E Act and the offence defined under Section 378 IPC, it is manifest
that the ingredients constituting the offence are different. The
contravention of terms and conditions of mining lease or doing
mining activity in violation of Section 4 of the Act is an offence
punishable under Section 21 of the MMDR Act, whereas
dishonestly removing sand, gravel and other minerals from the
F river, which is the property of the State, out of the State’s
possession without the consent, constitute an offence of theft.
Hence, merely because initiation of proceeding for commission
of an offence under the MMDR Act on the basis of complaint
cannot and shall not debar the police from taking action against
G persons for committing theft of sand and minerals in the manner
mentioned above by exercising power under the Code of Criminal
Procedure and submit a report before the Magistrate for taking
cognizance against such persons. In other words, in a case where
there is a theft of sand and gravel from the government land, the
police can register a case, investigate the same and submit a final
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 993
[K. M. JOSEPH, J.]

report under Section 173 CrPC before a Magistrate having A
jurisdiction for the purpose of taking cognizance as provided in
Section 190(1)(d) of the Code of Criminal Procedure.
73. After giving our thoughtful consideration in the matter,
in the light of the relevant provisions of the Act vis-à-vis the Code
of Criminal Procedure and the Penal Code, we are of the definite B
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 IPC. Hence, for
the commission of offence under Section 378 IPC, on receipt of
the police report, the Magistrate having jurisdiction can take C
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, D
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 CrPC carries the chapter heading E
“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 F
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 G
the Chapter is Section 156. It provides that any officer in charge of a
police station may without the order from a Magistrate investigate any
cognizable offence within which a court, having jurisdiction over a local
area within the limits of such station, would have the power to enquire
into or try under the provisions of Chapter XIII. In fact, Section 177 of H
994 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 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
B
onwards provide for the exceptions to Section 177 and we need not
probe this matter further. Sub-section (2) declares the proceedings of
police officer in a case of cognizable offence shall not in any stage be
called in question on the ground that the case was one which he was not
empowered to investigate under the provision. Lastly, sub-section (3)
C provides that any Magistrate who is empowered under Section 190 may
order such an investigation which the officer is to undertake under sub-
section (1). It is next relevant to notice Section 157 CrPC:
“157. Procedure for investigation preliminary inquiry.(1) If, from
information received or otherwise, an officer in charge of a police
D station has reason to suspect the commission of an offence which
he is empowered under section 156 to investigate, he shall forthwith
send a report of the same to a Magistrate empowered to take
cognizance of such offence upon a police report and shall proceed
in person, or shall depute one of his subordinate officers not being
below such rank as the State Government may, by general or
E 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
F 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
G 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
H requirements of that sub- section, and, in the case mentioned in
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 995
[K. M. JOSEPH, J.]

clause (b) of the said proviso, the officer shall also forthwith notify A
to the informant, if any, in such manner as may be prescribed by
the State Government, the fact that he will not investigate the
case or cause it to be investigated.”
63. It comes under the section heading ’Procedure for
investigation’. The body of the Section can be split-up into the following B
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 C
on his own knowledge would be covered by the expression otherwise.
(iii) The offences must be an offence which he is empowered under
Section 156 to investigate. We have noticed that a police officer is
empowered to investigate a cognizable offence without an order of the
Magistrate. As far as non-cognizable offence is concerned, he cannot D
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 E
reason that under Section 32 of the Act, a Magistrate is not competent
to take cognizance of the offences under Chapter IV of the Act upon a
police report. At this juncture, we may notice Section 158 CrPC. It speaks
about the manner of sending the report to the Magistrate under Section
157. It is a matter governed by a general or special order issued by the F
State Government. Quite clearly even Section 158 cannot apply in the
case of a cognizable offence falling under Chapter IV of the Act for the
reasons which we have adverted to. Section 159 enables the Magistrate
on receiving such report to direct investigation or if he thinks fit at once
to proceed or depute any Magistrate subordinate to him to proceed, to
hold a preliminary inquiry or otherwise to dispose of the case in the G
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 H
996 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 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
B and how the statements are to be reduced to writing. Again, Section 161
speaks about an investigation carried out under Chapter XII. The use to
which statements under Section 161 can be put and the limitation on the
same are spelt out in Section 162 CrPC. Reverting back to Section 157,
we have taken note of the requirement about the police officer reporting
to the Magistrate about the reason to suspect entertained by the police
C 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
D 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
E is unambiguously clear that there is no place for a police report within
the meaning of Section 173 of the CrPC in regard to offences falling
under Chapter IV of the Act. Section 157 contemplates that the Officer
proceeding either by himself or through his subordinate Officer to
investigate the facts and circumstances, and if necessary, to take
F measures for the discovery and the arrest of the offender. But on reading
the provisions, we gather the unmistakable impression that the law giver
has empowered the police officer to investigate in the case of a cognizable
offence without any order of the Magistrate where he 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
G ours is not flawed, an inevitable corollary would be that in the case of
offence under Chapter IV of the Act though it be cognizable, a police
officer would not have the power to investigate the matter. Section 169
speaks about the duty to release a person in custody if it is found on
investigation that there is no sufficient evidence or reasonable ground of
H suspicion to justify forwarding such person to the Magistrate. Section
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 997
[K. M. JOSEPH, J.]

170 deals with cases where an officer conducting investigation finds A
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
B
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 C
noted Section 190 of the CrPC. Sections 154, 156, 157, 158, 159, 160,
161, 170 and 173 are part of a scheme of provisions geared to empower
and require investigation of cognisable offences which are to culminate
in a police report within the meaning of Section 190(b) of the CrPC.
However, what is applicable in respect of offences under Chapter IV of
D
the Act is not 190 of the CrPC but Section 32 of the Act which does not
permit cognizance being taken on a police report. The entire exercise of
a police officer proceeding on a basis of a FIR becomes futile. It is not
contemplated in law. It therefore becomes unauthorised.
IMPACT OF LALITA KUMARI V. GOVERNMENT OF
UTTAR PRADESH AND OTHERS8 E
65. In the said case, a Constitution Bench of this Court has held
that registration of an FIR is mandatory under Section 154 of the CrPC,
if the information discloses commission of a cognizable offence and no
preliminary inquiry is permissible in such a situation. It was further held
that a preliminary inquiry may be conducted only to ascertain whether a F
cognizable offence is disclosed or not, if the information received does
not disclose a cognizable offence but indicates the need for such an
inquiry. The Court has also indicated certain cases where a preliminary
inquiry may be conducted, depending on the facts and circumstances of
each case. They include matrimonial disputes, commercial offences and G
cases where there is abnormal delay/latches. This Court also held that
the aforesaid were not exhaustive of all conditions which may warrant a
preliminary inquiry.

8
(2014) 2 SCC 1 H
998 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 66. We would think that this Court was not, in the said case,
considering a case under the Act or cases similar to those under the Act,
and we would think that having regard to the discussion which we have
made and on a conspectus of the provisions of the CrPC and Section 32
of the Act, the principle laid down in Lalita Kumari (supra) is not attracted
when an information is made before a Police Officer making out the
B
commission of an offence under Chapter IV of the Act mandating a
registration of a FIR under Section 154 of the CrPC.
DUTY OF POLICE OFFICER UNDER SECTION 154 OF THE
CRPC IRRESPECTIVE OF IMPACT OF TERRITORIAL
JURISDICTION
C
67. In State of A.P. v. Punati Ramulu and others9, the Police
Constable had refused to record the complaint on the ground that the
said Police Station had no territorial jurisdiction over the place of crime.
It was held as follows:
“4. … It was certainly a dereliction of duty on the part of
D
the constable because any lack of territorial jurisdiction, could not
have prevented the constable from recording information about
the cognizable offence and forwarding the same to the police
station having jurisdiction over the area in which the crime was
said to have been committed.”
E
(Emphasis supplied)
68. In Satvinder Kaur v. State (Govt. of NCT of Delhi) and
another10, this Court held, inter alia, as follows:
“10. It is true that territorial jurisdiction also is prescribed
F 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
G 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.
9
AIR 1993 SC 2644
10
H AIR 1999 SC 3596
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 999
[K. M. JOSEPH, J.]

Section 170 specifically provides that if, upon an investigation, it A
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
B
the accused or commit for trial. Further, if the investigating officer
arrives at the conclusion that the crime was not committed within
the territorial jurisdiction of the police station, then FIR can be
forwarded to the police station having jurisdiction over the area in
which the crime is committed. But this would not mean that in a
case which requires investigation, the police officer can refuse to C
record the FIR and/or investigate it.”
(Emphasis supplied)
69. This was a case where the FIR had been quashed by the
High Court under Section 482 CrPC on the ground that the Police Officer
at Delhi was not having territorial jurisdiction. It was a case under Section D
498A of the IPC. This Court set aside the judgment of the High Court
quashing the FIR, also taking note of Section 156(2) of the IPC.
70. There is practice of registering an FIR as a Zero FIR, when
the Police Station at which FIR is registered, does not have territorial
jurisdiction, and then, it is made over to the Police Station which has E
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. F
71. It is to be noted that the duty to register FIR, when information
is received about a cognizable offence falling under Chapter IV of the
Act, it is clear from the very inception that a Police Officer has no
jurisdiction to investigate the offence. It is not a case of absence of
territorial jurisdiction. No doubt, if it is a case of another Police Officer G
being empowered to investigate the offence in terms of powers under
CrPC, the law is, as laid down, that there is the obligation to register an
FIR and then make it over to the Police Station which has jurisdiction. In
fact, a conflict, when in the context of Sections 178 to 185 of the CrPC,
which constitute exceptions to the general principle laid down in Section
177 of the CrPC, the High Court is to decide the dispute, as is provided H
1000 SUPREME COURT REPORTS [2020] 10 S.C.R.

A in Section 186 of the CrPC. If an information is relatable only to cognizable
offences under Chapter IV of the Act, we would think that the Police
Officer would be out of bounds and he has no role to 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
B
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
C 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
D 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
E of finding that arrest can be effected by a police officer in respect of a
cognizable offence under Chapter IV of the Act on the need to register
an FIR under Section 154. We have already noticed that under Section
157 of the Act making a report to the Magistrate who can take cognizance
of a police report renders the provision as such inapplicable under Chapter
IV of the Act.
F
75. The question would arise if investigation is not permissible for
a police officer under Section 157 and that he cannot give a report under
the said provision, can he be empowered to carry out the arrest? Is the
scheme of arrest under Section 41 of the Act interlinked with the power
of arrest under Section 157? We heard the learned Counsel for the
G petitioner and the learned Amicus Curiae on this point and have considered
their Written Submissions as well.
PROVISIONS AS TO ARREST IN THE CONSTITUTION OF
INDIA – ARTICLE 22(1) AND ARTICLE 22(2).
76. Article 22(1) and Article 22(2) of the Constitution of India,
H reads as follows:
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1001
[K. M. JOSEPH, J.]

“22. Protection against arrest and detention in certain cases A
(1) No person who is arrested shall be detained in custody without
being informed, as soon as may be, of the grounds for such arrest
nor shall he be denied the right to consult, and to be defended by,
a legal practitioner of his choice
(2) Every person who is arrested and detained in custody shall be B
produced before the nearest magistrate within a period of twenty
four hours of such arrest excluding the time necessary for the
journey from the place of arrest to the court of the magistrate and
no such person shall be detained in custody beyond the said period
without the authority of a magistrate.” C
77. At this juncture, it is necessary to notice the judgment of this
Court in D.K. Basu v. State of West Bengal11. In the said case, this
Court issued various directions in regard to safeguards to be observed in
the matter of effecting arrest. They are found in paragraph-35 and read
as follows: D
“35. We, therefore, consider it appropriate to issue the
following requirements to be followed in all cases of arrest or
detention till legal provisions are made in that behalf as preventive
measures:
(1) The police personnel carrying out the arrest and E
handling the interrogation of the arrestee should bear accurate,
visible and clear identification and name tags with their
designations. The particulars of all such police personnel who
handle interrogation of the arrestee must be recorded in a
register. F
(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
G
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
11
(1997) 1 SCC 416 H
1002 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 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.
B
(4) The time, place of arrest and venue of custody of an
arrestee must be notified by the police where the next friend
or relative of the arrestee lives outside the district or town
through the Legal Aid Organisation in the District and the police
station of the area concerned telegraphically within a period of
C 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this
right to have someone informed of his arrest or detention as
soon as he is put under arrest or is detained.
D (6) An entry must be made in the diary at the place of
detention regarding the arrest of the person which shall also
disclose the name of the next friend of the person who has
been informed of the arrest and the names and particulars of
the police officials in whose custody the arrestee is.

E (7) The arrestee should, where he so requests, be also
examined at the time of his arrest and major and minor injuries,
if any present on his/her body, must be recorded at that time.
The “Inspection Memo” must be signed both by the arrestee
and the police officer effecting the arrest and its copy provided
to the arrestee.
F
(8) The arrestee should be subjected to medical
examination by a trained doctor every 48 hours during his
detention in custody by a doctor on the panel of approved
doctors appointed by Director, Health Services of the State or
Union Territory concerned. Director, Health Services should
G prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of
arrest, referred to above, should be sent to the Illaqa Magistrate
for his record.
(10) The arrestee may be permitted to meet his lawyer
H during interrogation, though not throughout the interrogation.
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1003
[K. M. JOSEPH, J.]

(11) A police control room should be provided at all district A
and State headquarters, where information regarding the arrest
and the place of custody of the arrestee shall be communicated
by the officer causing the arrest, within 12 hours of effecting
the arrest and at the police control room it should be displayed
on a conspicuous notice board.”
B
78. We may observe what this Court laid down in paragraphs-36
and 37:
“36. Failure to comply with the requirements hereinabove
mentioned shall apart from rendering the official concerned liable
for departmental action, also render him liable to be punished for C
contempt of court and the proceedings for contempt of court may
be instituted in any High Court of the country, having territorial
jurisdiction over the matter.
37. The requirements, referred to above flow from Articles
21 and 22(1) of the Constitution and need to be strictly followed. D
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 E
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 F
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 G
offences, offences under the Essential Commodities Act, Excise
and Customs Act, Foreign Exchange Regulation Act etc. ……”
No doubt, these are all cases where express power of arrest was
conferred on those Authorities under the concerned law.
H
1004 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 80. We may notice that a Bench of this Court in Arnesh Kumar v.
State of Bihar and another12 again considered the aspect relating to the
balance that is to be struck between individual liberty and societal order,
while exercising power of arrest. Though the matter arose under Section
498A of the Indian Penal Code, 1860, which deals with matrimonial
cruelty read with the Dowry Prohibition Act, 1961, the Court issued
B
directions as contained in from paragraph-11.1 to 11.8. It also held as
follows:
“12. We hasten to add that the directions aforesaid shall not only
apply to the cases under Section 498-A IPC or Section 4 of the
Dowry Prohibition Act, the case in hand, but also such cases where
C offence is punishable with imprisonment for a term which may be
less than seven years or which may extend to seven years, whether
with or without fine.”
81. Still later, we may notice that a Bench of this Court frowned
upon arrest which was unwarranted in the decision reported in Rini Johar
D v. State of M.P.13 and the Court also granted compensation, having regard
to the manner in which the petitioner was treated in the said case. After
referring to Arnesh Kumar (supra), this Court in Rini Johar (supra),
inter alia, held as follows:
“22. We have referred to the enquiry report and the legal
E position prevalent in the field. On a studied scrutiny of the report,
it is quite vivid that the arrest of the petitioners was not made by
following the procedure of arrest. Section 41-A CrPC as has been
interpreted by this Court has not been followed. The report clearly
shows that there have been number of violations in the arrest, and
F seizure. Circumstances in no case justify the manner in which the
petitioners were treated.”
No doubt, the Court, in Arnesh Gupta (supra), was dealing with
the case which dealt with a situation where the offences were punishable
with imprisonment upto seven years, and as mandated in Section 41 of
G the CrPC., reasons had to exist for effecting an arrest as provided therein.
THE POWER OF ARREST UNDER THE CRPC
82. Chapter V of the CrPC deals with the arrest of persons. Section
41 of the CrPC, vide the Code of Criminal Procedure (Amendment)
12
(2014) 8 SCC 273
H 13
(2016) 11 SCC 703
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1005
[K. M. JOSEPH, J.]

Act, 2008 (Act 5 of 2009, Section 5) (w.e.f. 01-11-2010), deals with the A
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- B
14
(a) who commits, in the presence of a police officer, a cognizable
offence;
(b) against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable
suspicion exists that he has committed a cognizable offence C
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 D
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
E
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence
of the offence to disappear or tampering with such
evidence in any manner; or
(d) to prevent such person from making any
inducement, threat or promise to any person F
acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the Court
or to the police officer; or
(e) as unless such person is arrested, his presence in
the Court whenever required cannot be ensured, G
and the police officer shall record while making such
arrest, his reasons in writing:

14
Substituted by Act 5 of 2009, sec.5(i), for clauses (a) and (b) (w.e.f. 1-11-2010).
H
1006 SUPREME COURT REPORTS [2020] 10 S.C.R.

15
A [Provided that a police officer shall, in all cases where
the arrest of a person is not required under the provisions
of this sub-section, record the reasons in writing for not
making the arrest.]
(ba) against whom credible information has been received that
B he has committed a cognizable offence punishable with
imprisonment for a term which may extend to more than
seven years whether with or without fine or with death
sentence and the police officer has reason to believe on the
basis of that information that such person has committed
the said offence;]
C
(c) who has been proclaimed as an offender either under this
Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably
be suspected to be stolen property and who may reasonably
D be suspected of having committed an offence with
reference to such thing; or
(e) who obstructs a police officer while in the execution of his
duty, or who has escaped, or attempts to escape, from lawful
custody; or
E (f) who is reasonably suspected of being a deserter from any
of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable
complaint has been made, or credible information has been
received, or a reasonable suspicion exists, of his having
F been concerned in, any act committed at any place out of
India which, if committed in India, would have been
punishable as an offence, and for which he is, under any
law relating to extradition, or otherwise, liable to be
apprehended or detained in custody in India; or
G (h) who, being a released convict, commits a breach of any
rule made under sub- section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral,
has been received from another police officer, provided that

15
H Ins. By Act 41 of 2010, sec.2 (w.e.f. 2-11-2010).
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1007
[K. M. JOSEPH, J.]

the requisition specifies the person to be arrested and the A
offence or other cause for which the arrest is to be made
and it appears therefrom that the person might lawfully be
arrested without a warrant by the officer who issued the
requisition.
16
[(2) Subject to the provisions of Section 42, no person B
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.].”
C
83. Section 41A of the CrPC, inserted w.e.f. 01.11.2010, provides
for issuance of Notice by the Police Officer in all the cases covered by
Sub-Section (1) of Section 41 of the CrPC, where the arrest of a person
is not required, to appear before him. As long as a person complies with
the Notice, Section 41A(iii) prohibits arrest unless the Police Officer, for
reasons to be recorded, is of the view that he is to be arrested. Section D
41B of the CrPC, again inserted w.e.f. 01.11.2010, casts a duty on a
Police Officer, making an arrest, to bear an accurate, visible and clear
identification of his name. He is to prepare a Memorandum of Arrest,
which is, inter alia, to be countersigned by the person arrested. Section
41D of the CrPC confers a right on the arrested person to meet an E
Advocate of his choice during the interrogation, though not throughout
interrogation. Under Section 42 of the CrPC, if a person commits a non-
cognizable offence in the presence of a Police Officer or he is accused
of committing a non-cognizable offence, and the Police Officer, on
demanding his name and residence, is met with a refusal or the giving of
a name or residence, which the Officer believes to be false, arrest can F
be made but for the purpose of ascertaining the name and residence. In
fact, he is to be released immediately on executing a bond when the true
name and residence is ascertained. If there is failure to ascertain the
address within twenty-four hours, inter alia, of arrest, no doubt, it is
forthwith forwarded to the nearest Magistrate having jurisdiction. The G
Act contemplates arrest by a private person. The power and the procedure,
is detailed in Section 43 of the CrPC, it reads as follows:

16
Subs. By Act 5 of 2009, sec. 5(ii), for sub-Section (2) (w.e.f. 1-11-2010). H
1008 SUPREME COURT REPORTS [2020] 10 S.C.R.

A “43. Arrest by private person and procedure on such arrest.
(1) Any private person may arrest or cause to be arrested any
person who in his presence commits a non- bailable and cognizable
offence, or any proclaimed offender, and, without unnecessary
delay, shall make over or cause to be made over any person so
B arrested to a police officer, or, in the absence of a police officer,
take such person or cause him to be taken in custody to the nearest
police station.
(2) If there is reason to believe that such person comes under the
provisions of section 41, a police officer shall re- arrest him.
C (3) If there is reason to believe that he has committed a non-
cognizable offence, and he refuses on the demand of a police
officer to give his name and residence, or gives a name or residence
which such officer has reason to believe to be false, he shall be
dealt with under the provisions of section 42; but if there is no
D sufficient reason to believe that he has committed any offence,
he shall be at once released.”
84. Section 46 of the CrPC provides for the manner of arrest.
Section 47 enables the Police Officer to search the place entered by a
person sought to be arrested. Section 48 of the CrPC reads as follows:
E “48. Pursuit of offenders into other jurisdictions. A police officer
may, for the purpose of arresting without warrant any person whom
he is authorised to arrest, pursue such person into any place in
India.”
85. The person arrested is not to be subjected to more restraint
F than is necessary to prevent his escape, declares Section 49 of the CrPC.
Every Police Officer or other person, arresting a person without a
warrant, is bound forthwith to communicate to him all particulars of the
offence for which he is arrested or other grounds for such arrest. This is
provided for in Section 50 of the CrPC. A Police Officer, when he arrests
a person without warrant and he is not accused of committing a non-
G
bailable offence, is duty-bound to inform him of his entitlement to be
released on Bail. The Police Officer is also under an obligation to inform,
under Section 50A of the CrPC, a nominated person about the factum of
arrest. This came into force on 23.06.2006. Section 51 deals with search
of the arrested person.
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1009
[K. M. JOSEPH, J.]

86. Section 54 of the CrPC declares that when any person is A
arrested, he shall be examined by a Medical Officer. Section 54A of the
CrPC, inserted w.e.f. 23.06.2006, specifically provides for identification
of the arrested person. Section 55A of the CrPC, inserted w.e.f.
31.12.2009, makes it the duty of the person, having the custody of the
person, to take reasonable care of the health and safety. Section 56 of
B
the CrPC makes it the duty of the Police Officer, arresting without
warrant, to produce the person arrested before a Magistrate having
jurisdiction without unnecessary delay or before the Officer In-charge
of a Police Station. This is, no doubt, subject to the provisions as to Bail.
Section 57 of the CrPC, reads as follows:
“57. Person arrested not to be detained more than twenty- four C
hours. No police officer shall detain in custody a person arrested
without warrant for a longer period than under all the circumstances
of the case is reasonable, and such period shall not, in the absence
of a special order of a Magistrate under section 167, exceed twenty-
four hours exclusive of the time necessary for the journey from D
the place of arrest to the Magistrate’ s Court.”
87. The Officer In-charge of Police Station is to report about all
persons arrested without warrant to the District Magistrate or the Sub-
Divisional Magistrate as directed by the District Magistrate. Section 59
of the CrPC provides that no person, who has been arrested by a Police E
Officer, shall be discharged, except on his own bond or on Bail or under
the Special Order of the Magistrate. Section 60A of the CrPC provides
that no arrest is to be made, except in accordance with the provisions of
the CrPC or any other law being in force, providing for arrest. Chapter
XI of the CrPC provides for preventive action of the Police. Section 151
of the CrPC, inter alia, empowers a Police Officer, knowing of a design F
by a person to commit a cognizable offence, to arrest him without orders
from a Magistrate and without a warrant. Section 157 of the CrPC
provides, inter alia, that the Police Officer, proceeding to investigate a
case, may take measures for the arrest of the offender. Section 167 of
the CrPC deals with a case where investigation is not completed within G
twenty-four hours, as fixed in Section 57 of the CrPC. It provides that in
such a situation, if there are grounds for believing that the accusation or
information is well founded, the person arrested, is to be forwarded to
the Magistrate, inter alia. Section 167 empowers Magistrate to order
remand of the accused person, as provided therein.
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1010 SUPREME COURT REPORTS [2020] 10 S.C.R.

A A FEW WORDS ABOUT THE PROVISIONS AS TO BAIL
88. Chapter XXXIII of the CrPC deals with Bail. Section 436 of
the CrPC deals with Bail in the case of an arrest of a person accused of
a bailable offence. There is a Statutory Right to Bail in the manner
provided therein. Section 437 of the CrPC provides for Bail in the case
B of a non-bailable offence. It, essentially, deals with a situation where a
person is brought before a court other than the High Court or Court of
Sessions. There are certain restrictions and conditions to be fulfilled in
the matter of grant of Bail on the Court, as is stated therein.
89. Section 439 of the CrPC, confers special powers on the High
C Court or the Court of Sessions in regard to Bail. It reads as follows:
“439. Special powers of High Court or Court of Session regarding
bail.
(1) A High Court or Court of Session may direct-

D (a) that any person accused of an offence and in custody be
released on bail, and if the offence is of the nature specified in
subsection (3) of section 437, may impose any condition which it
considers necessary for the purposes mentioned in that sub-
section;
(b) that any condition imposed by a Magistrate when releasing an
E
person on bail be set aside or modified: Provided that the High
Court or the Court of Session shall, before granting bail to a person
who is accused of an offence which is triable exclusively by the
Court of Session or which, though not so triable, is punishable
with imprisonment for life, give notice of the application for bail to
F the Public Prosecutor unless it is, for reasons to be recorded in
writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person
who has been released on bail under this Chapter be arrested and
commit him to custody.”
G 90. Section 36AC of the Act, around which much arguments were
addressed reads as follows:
“36AC. Offences to be cognizable and non-bailable in certain
cases. — (1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974),—
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1011
[K. M. JOSEPH, J.]

(a) every offence, relating to adulterated or spurious drug and A
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,
B
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 C
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
D
(ii) where the Public Prosecutor opposes the application, the Court
is satisfied that there are reasonable grounds for believing that he
is not guilty of such offence and that he is not likely to commit any
offence while on bail:
Provided that a person, who, is under the age of sixteen years, or E
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 F
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
G
(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
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1012 SUPREME COURT REPORTS [2020] 10 S.C.R.

A Officer who has the power to arrest under the CrPC. Reliance is placed
on Badaku Joti Savant v. State of Mysore17. Similarly, support is drawn
from Raj Kumar Karwal v. Union of India and others18. Reliance is also
placed on Ramesh Chandra Mehta v. State of W.B.19, Illias v. Collector
of Customs, Madras20, State of U.P. v. Durga Prasad21 and Balkishan
A. Devidayal v. State of Maharashtra22. These decisions, apparently,
B
are relied on to show that Officers of Department, including the
Directorate of Revenue Intelligence (DRI), invested with powers of
investigation under the Narcotic Drugs and Psychotropic Substances
Act, 1985, Customs Act, 1962 and under the Railway Property (Unlawful
Possession) Act, 1966, are not Police Officers. It is, therefore, the case
C of the petitioner that important indispensable attribute of a Police Officer
is not only authority to investigate but to also have power to file a Report
under Section 173 of the CrPC.
92. It is further contended that unlike the Prevention of Money-
Laundering Act, 2002, which specially provides that “no Police Officer
D can investigate into an offence under the Act”, the Act in question is
silent. The special provision must prevail in case of conflict with the
general provision. In view of absence of specific powers on the Inspector
under the Act, provisions of CrPC will prevail. A literal interpretation,
according to the plain meaning of the language, is commended for our
acceptance. The provisions of Section 36AC of the Act are emphasized
E before us treating offences thereunder as being cognizable and non-
bailable. It is submitted that there is power to arrest with the Police. The
judgment in Deepak Mahajan (supra) is sought to be distinguished. The
implication of Section 36AC of the Act is that the offences set-out therein
can be investigated by the Police. Therefore, Section 36AC will apply
F notwithstanding Section 32 of the Act. Otherwise, the intention of the
Legislature, in making the offence cognizable and, at the same time, to
denude the Police of the power to prosecute, would be a contradiction.
It is pointed out that before Section 36AC of the Act, the offences relating
to adulterated and spurious drugs under the Act, were non-cognizable
G
17
(1966) 3 SCR 698
18
(1990) 2 SCC 409
19
(1969) 2 SCR 461
20
(1969) 2 SCR 613
21
(1975) 3 SCC 210
22
H (1980) 4 SCC 600
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1013
[K. M. JOSEPH, J.]

offences. It is also contended that Section 36AC of the Act now makes A
an exception by empowering the Police to investigate and consequently
prosecute for the offences specifically set-out in Section 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 CrPC.
B
Except Section 27A and 27C and Section 30(1) of the Act, all other
provisions mentioned in Section 36AC of the Act, were non-cognizable
offences as per Schedule I Part 2 of the CrPC. But having regard to the
amended Section 36AC of the Act, it is the special provisions in Section
36AC, which will prevail.
THE SUBMISSIONS OF THE LEARNED AMICUS IN C
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 CrPC. The learned Amicus Curiae submitted as follows: D

He agreed that for a person to be released on Bail, he should
have been remanded to custody. He should further have been
arrested under Section 157 of the CrPC in order that he be
remanded under Section 167 of the CrPC. If he is arrested under
Section 41(1) of the CrPC, immediately thereafter, a case should E
be registered and he should be sent to the Court seeking remand.
Any case registered under Section 154 or 155 of the CrPC, is to
culminate in the Report under Section 173(2) of the CrPC. There
is no other way for giving disposal to the case. Filing of such a
Final Report under Section 190 of the CrPC is to take cognizance, F
and since Section 32 of the Act would bar such cognizance, no
purpose would be served in registering the case. The Legislative
intent, under Section 32 of the Act, cannot be diluted. The Police
Officer, therefore, cannot arrest under Section 157 of the CrPC.
While introducing Section 36AC, the Legislature was presumed
to know the bar in Section 32. There is an inconsistency between G
Section 32 and Section 36AC, though they were amended/
introduced by the same amendment. It becomes the duty of the
Court to avoid a head-on clash between the two Sections. It is
contended that the Court must effect reconciliation. Reliance is
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1014 SUPREME COURT REPORTS [2020] 10 S.C.R.

A placed on judgment of this Court in D. Sanjeevayya v. Election
Tribunal, Andhra Pradesh and others23.
94. Learned Amicus Curiae further submits that Section 21 of the
Act speaks of the “Appointment of the Inspectors”. The qualifications
of Inspectors are provided in Rule 49 of the Drugs and Cosmetics Rules.
B They are Experts in the subjects so far as the powers are provided in
Sections 22 and 23 of the Act. The provisions in Section 23 are mandatory.
The Act provides for getting a Report on the sample and the accused is
also enabled to seek a Second Report from the Central Laboratory. The
Police Officer may not have the qualifications. He may not know how
to draw the sample. The procedure can be meaningfully followed only
C by the Inspectors. Legislature did not intend to give similar powers to
the Police. It is further contended that if it is held that the Police can file
a Final Report, upon which cognizance can be taken, it will make Section
32 of the Act non-existent. Similarly, in an attempt to interpret Section
36AC, if the Police is conferred with the power to arrest, it will lead to
D authorizing the Police to also register the case under Section 154 of the
CrPC and to file a Final Report under Section 173(2) of the CrPC. It is
difficult to harmonise Section 32 and Section 36AC of the Act, it is
pointed out. The learned Amicus Curiae draws our attention to the
following observations of this Court in Sultana Begum v. Prem Chand
Jain24:
E
“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:
F “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
G Veeramallappa [AIR 1961 SC 1107 : (1961) 2 SCR 295] ; Gammon
India Ltd. v. Union of India [(1974) 1 SCC 596 : 1974 SCC (L&S)
252 : AIR 1974 SC 960] ; Mysore SRTC v. Mirja Khasim Ali
Beg [(1977) 2 SCC 457 : 1974 SCC (L&S) 282 : AIR 1977 SC
23
AIR 1967 SC 1211
H 24
(1997) 1 SCC 373
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1015
[K. M. JOSEPH, J.]

747] ; V. Tulasamma v. Sesha Reddy [(1977) 3 SCC 99 : AIR A
1977 SC 1944] ; Punjab Beverages (P) Ltd. v. Suresh
Chand [(1978) 2 SCC 144 : 1978 SCC (L&S) 165 : AIR 1978 SC
995] ; CIT v. National Taj Traders [(1980) 1 SCC 370 : 1980 SCC
(Tax) 124 : AIR 1980 SC 485] ; Calcutta Gas Co. (Proprietary)
Ltd. v. State of W.B. [AIR 1962 SC 1044 : 1962 Supp (3) SCR 1]
B
and J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. State of U.P. [AIR
1961 SC 1170 : (1961) 1 LLJ 540]
xxx xxx xxx xxx
15. On a conspectus of the case-law indicated above, the
following principles are clearly discernible: C
(1) It is the duty of the courts to avoid a head-on clash
between two sections of the Act and to construe the provisions
which appear to be in conflict with each other in such a manner
as to harmonise them.
(2) The provisions of one section of a statute cannot be D
used to defeat the other provisions unless the court, in spite of its
efforts, finds it impossible to effect reconciliation between them.
(3) It has to be borne in mind by all the courts all the time
that when there are two conflicting provisions in an Act, which
cannot be reconciled with each other, they should be so interpreted E
that, if possible, effect should be given to both. This is the essence
of the rule of “harmonious construction”.
(4) The courts have also to keep in mind that an
interpretation which reduces one of the provisions as a “dead
letter” or “useless lumber” is not harmonious construction. F
(5) To harmonise is not to destroy any statutory provision
or to render it otiose.”
95. Police cannot arrest as there can be no investigation by the
Police. Section 36AC of the Act stipulates stringent conditions for
granting Bail. It can be made applicable when the accused is remanded G
to the custody by the Magistrate while committing the case to the Sessions
Court.
96. As regards Section 41 of the CrPC, the learned Amicus Curiae
would point out that empowering the Police to arrest in respect of
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1016 SUPREME COURT REPORTS [2020] 10 S.C.R.

A cognizable offence, under the said provisions, being a general provision,
may not be countenanced as the general provisions are overridden by
the provisions of the Act. Again, arrest under Section 41 of the CrPC
must be followed by the registration of the case under Section 154 of the
CrPC, which is not possible in view of Section 32 of the Act. The learned
Amicus Curiae also voices the apprehension that if power to arrest is
B
conferred on the Police Officer, under Section 41, then, in every special
enactment, such as the Food Adulteration Act, Income-Tax Act, Food
Safety and Standards Act, Customs Act, etc., the Police will arrest under
Section 41 of the CrPC, register a case and file a Final Report. The
special provisions of those Acts, restricting cognizance only on the basis
C 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
D 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
E 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
F rejecting the argument of the petitioner that after the amendment of
Section 36AC of the Act, making the offences cognizable and non-
bailable, it is open to the Police Officer to prosecute the person for the
offences set-out in Section 36AC of the Act. Having regard to the express
provisions of Section 32 of the Act, insofar as the prosecution is to be
G launched qua offences falling within the four walls of Chapter IV of the
Act, and which are also the subject matter of Section 36AC of the Act,
there cannot be any doubt that prosecution of the offender, for such
offences, can be done only in the manner provided in Section 32 of the
Act. The prosecution can be launched only by the persons mentioned in
Section 32 of the Act. A Police Officer, as such, does not figure as one
H of the persons who may prefer a report under Section 173(2) of the
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1017
[K. M. JOSEPH, J.]

CrPC, on which, cognizance could be taken by the Special Court. A
Undoubtedly, as we have already clarified in respect of an offence under
Chapter IV, if the acts or omission also constitutes an offence under any
other law, under Section 32(3) of the Act, it may be open to the Police
Officer, if he is otherwise empowered under the said law, to prosecute
the person for the same offence, to act as such.
B
100. Consequently, the registration of an FIR, which under the
scheme of the CrPC, sets the ball rolling, empowering the Police Officer
to investigate under Section 157 of the CrPC, and gather material and
finally file a Report, would all appear to us to be inapplicable to an offence
under Chapter IV of the Act.
C
101. The conundrum, however, is posed by the aspect relating to
arrest. Undoubtedly, there is no express power on the Inspector to arrest
under the Act. The argument of the learned Additional Solicitor General,
Ms. Pinky Anand that the Drugs Inspector could not be a Police Officer
as he is not a person who can file a Report under Section 173 of the
CrPC and, therefore, he cannot arrest, does not appeal to us. The decisions D
relied upon by the learned Counsel, referred to by us in paragraph-91
hereinbefore, only declare that the Customs Officer under the Customs
Act and the other officers in the enactments, which we have referred
to, are not Police Officers in the context of Section 25 of the Indian
Evidence Act, 1872 (hereinafter referred to as ‘the Evidence Act’, for E
short). Section 25 of the Evidence Act renders inadmissible a confession
made to a Police Officer. The question here is not whether the Drugs
Inspector is a Police Officer and the question here is 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 CrPC
is deprived of his power, under the CrPC, to arrest. These are the F
questions to be answered by us.
102. The Court must start with the presumption that Parliament,
which is author of the CrPC and also the Act in question, was aware of
the provisions of the CrPC, as it existed at the time when the Act was
enacted in 1940. This is following the principle that the Legislature must G
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, H
1018 SUPREME COURT REPORTS [2020] 10 S.C.R.

A Section 22(1)(d) of the Act, which deals with the powers of the Inspector,
inter alia, enables the Inspector to exercise such other powers as may
be necessary for carrying out the purpose of Chapter IV or any Rules
made thereunder. The sanction, which is contemplated under Chapter
IV, is the criminal sanction by way of prosecuting a person for contravening
the provisions of Chapter IV of the Act. In other words, the Legislature
B
has given teeth to the law by providing for prosecuting offenders. The
Inspector is at the center stage. In every other aspect, as can be seen
from the Act, the implementation of its provisions is vitally dependent
upon the powers and functions assigned to the Inspector. The very
qualifications, which are provided in the Rules, as indispensable for being
C appointed as an Inspector, represents a carefully chosen value judgment
by the Legislature to assign the implementation of the Act through the
competent hands of qualified persons. The Act is enacted to achieve the
highest public interest in as much as what is at stake is the health of the
members of the public, which again is recognized as one of the aspects
covered by the Fundamental Right protected under Article 21 of the
D
Constitution of India. Keeping the Police Officer out from the categories
of persons, who could prosecute offenders for offences under Chapter
IV of the Act, is also a carefully thought out ideal.
THE DECISION OF THIS COURT IN DIRECTORATE OF
ENFORCEMENT V. DEEPAK MAHAJAN AND ANOTHER25
E
103. In Deepak Mahajan (supra), the question arose in the context
of provisions of Section 35 of the Foreign Exchange Regulation Act,
1973 (FERA) and Section 104 of the Customs Act, 1962, which expressly
conferred power of arrest on the Officers under the Acts. The question
which squarely arose was whether upon arrest being effected under
F Section 35 of the FERA and Section 104 of the Customs Act, a remand
could be ordered under Section 167(2) of the CrPC. In the course of
discussion, the Court proceeded to hold that the CrPC gives power of
arrest not only to the Police Officer, but to a Magistrate and also under
certain circumstances or given situations to private persons. It went on
G to hold that in every arrest there is custody but not vice-versa. It further
held as follows:
“54. The above deliberation leads to a derivation that to invoke
Section 167(1), it is not an indispensable pre-requisite condition

25
H (1994) 3 SCC 440
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1019
[K. M. JOSEPH, J.]

that in all circumstances, the arrest should have been effected A
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
B
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 C
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.”
D
(Emphasis supplied)
104. Section 35(2) in FERA and Section 104(2) of the Customs
Act, provided that the person arrested was to be taken before a Magistrate
without unnecessary delay. As regards the power to detain the person
arrested under Section 167(2) of the CRPC, it was held as follows: E
“102. From the foregoing discussion, it is clear that the word
‘accused’ or ‘accused person’ is used only in a generic sense in
Section 167(1) and (2) denoting the ‘person’ whose liberty is
actually restrained on his arrest by a competent authority on well-
founded information or formal accusation or indictment. Therefore, F
the word ‘accused’ limited to the scope of Section 167(1) and (2)
— particularly in the light of Explanation to Section 273 of the
Code includes ‘any person arrested’. The inevitable consequence
that follows is that “any person is arrested” occurring in the first
limb of Section 167(1) of the Code takes within its ambit “every
person arrested” under Section 35 of FERA or Section 104 of the G
Customs Act also as the case may be and the ‘person arrested’
can be detained by the Magistrate in exercise of his power under
Section 167(2) of the Code. In other words, the ‘person arrested’
under FERA or Customs Act is assimilated with the characteristics
of an ‘accused’ within the range of Section 167(1) and as such H
1020 SUPREME COURT REPORTS [2020] 10 S.C.R.

A liable to be detained under Section 167(2) by a Magistrate when
produced before him.”
105. The Court went on to consider the impact of other laws in
regard to the scope of the expression “Police Officer”. It held as follows:
“111. Neither the Police Act, 1861 (Act V of 1861) nor any
B other statute defines the expression ‘police officer’. Shortly stated,
the main duties of the police are the prevention, detention and
investigation of crimes. As the powers and duties of the State
have increased and are increasing manifold, various Acts dealing
with Customs, Excise, Forest, Taxes etc. have come to be passed
C and consequently the prevention, detention and investigation of
offences as prescribed under those Acts have come to be entrusted
to officers with different nomenclatures appropriate to the subject
with reference to which they function. However, as stated supra,
though the powers of customs officers and enforcement officers
are not identical to those of police officers qua the investigation
D under Chapter XII of the Code yet the officers under the FERA
and Customs Act are vested with certain powers similar to the
powers of police officers.”
106. Section 167(1) of the CrPC contemplates forwarding the
diary which was interpreted to be not the general diary and the special
E diary under Section 167(2) of the CrPC. In regard to the enactments in
question, this Court held as follows:
“113. Though an authorised officer of Enforcement or Customs
is not undertaking an investigation as contemplated under Chapter
XII of the Code, yet those officers are enjoying some analogous
F 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
G the name of the informant, as well as the name of the person who
violated any other provision of the Code and who has been guilty
of an offence punishable under the Act, nature of information
received by them, time of the arrest, seizure of the contraband if
any and the statements recorded during the course of the detection
of the offence/offences.”
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1021
[K. M. JOSEPH, J.]

107. It also found the following powers available under five Central A
enactments:
Sl. Name of the Act Power to search Power to search suspected persons, Power to search
No. premises entering or leaving India persons
1 2 3 4 5
1. Foreign Sec. 37 Sec. 34 Sec. 34
Exchange
Regulation Act, B
1973
2. The Customs Act Sec. 105 Sec. 100 Sec. 101
3. The Gold Sec. 58 — Sec. 60
(Control) Act
(now repealed)
4. The Prevention Sec. 10(2) S. 6 to be r/w S. 18 or the Sea —
of Food Customs Act.
Adulteration
Act.
C
5. The Railway Sec. 10 and Sec. — —
Property 11
(Unlawful
Possession)
Act

D
Power to stop and Power to seize Power to Power to Power to summon persons to
search conveyances goods, documents arrest. examine give evidence and produce
etc. persons documents
6 7 8 9 10
Sec. 36 Sec. 38 Sec. 35 Sec. 39 Sec. 40
Sec. 106 Sec. 110 Sec. 104 Sec. 107 Sec. 108
Sec. 61 Sec. 66 Sec. 68 Sec. 64 Sec. 63 E
— Sec. 10 Sec. — —
10(B)
— — Sec. 6 — Sec. 9

108. The Court further held as follows:
“116. It should not be lost sight of the fact that a police F
officer making an investigation of an offence representing the
State files a report under Section 173 of the Code and becomes
the complainant whereas the prosecuting agency under the special
Acts files a complaint as a complainant i.e. under Section 61(ii) in
the case of FERA and under Section 137 of the Customs Act. To
G
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
H
1022 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 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
B
under the Code or under the special procedure, if any, prescribed
under the special Acts. Therefore, the word ‘investigation’ cannot
be limited only to police investigation but on the other hand, the
said word is with wider connotation and flexible so as to include
the investigation carried on by any agency whether he be a police
C officer or empowered or authorised officer or a person not being
a police officer under the direction of a Magistrate to make an
investigation vested with the power of investigation.”
(Emphasis supplied)
109. In fact, as laid down in Deepak Mahajan (supra), the power
D of arrest can be conferred on persons other than a Police Officer. We
are, for the moment, excluding the position under the CrPC that even a
private person can arrest as provided in Section 43 of the CrPC. The
Foreign Exchange Regulation Act, 1973 (hence repealed); the Customs
Act, 1962; the Gold (Control) Act, 1968 (repealed); the Prevention of
E Food Adulteration Act, 1954 (hence repealed) and the Railway Property
(Unlawful Possession) Act, 1966, in Sections 35, 104, 68, 10B and Section
6, respectively, conferred power of arrest on the Officers under these
Acts. Therefore, if we interpret Section 22(1)(d) of the Act, as
comprehending the power of arrest with the Drugs Inspector, then, his
competency to arrest, a requirement in law, as laid down again in Deepak
F Mahajan (supra) (See paragraph-54), would stand satisfied. However,
the further question is, what is the procedure to be followed by the
Inspector, and still finally, whether the Police Officer, under the CrPC,
will stand deprived of the power to arrest. The argument of the learned
Amicus Curiae appears to be that since a Police Officer, once he registers
G an FIR under Section 154 of the CrPC, is duty-bound to carry the matter
to its logical conclusion, viz., to investigate the matter as provided in the
CrPC, and finally, file a Report under Section 173(2) of the CrPC, to
persuade the Court to take cognizance in an appropriate case, all of
which powers are not available to a Police Officer in regard to offences
under Chapter IV of the Act, the interpretation that avoids such a futile
H exercise, which also is unauthorized and illegal in law, should be adopted.
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1023
[K. M. JOSEPH, J.]

110. We do agree with the learned Amicus Curie that the Police A
Officer, for instance, cannot be approached by any person with a
complaint that a cognizable offence under Chapter IV of the Act has
been committed and he is not bound to register the FIR in terms of the
law which is being held down by this court in Lalita Kumari (supra).
This is for the reason that if he were to register an FIR, then, he would
B
have to pass on to the stage of Section 157 of the CrPC and, furthermore,
carry out investigation, as understood in law, for which neither is he
deemed qualified or empowered by the Law Giver nor is he entitled to
file a Report under Section 173 of the CrPC.
POWER OF ARREST UNDER THE ACT
C
111. We are faced with a situation which projects a discord
between two Statutes, viz., the CrPC and the Act, and the only silver-
lining appearing on the horizon, is the ambit of the power under Section
22(1)(d) of the Act. We may recapitulate the said provision, at this juncture.
It reads as follows:
D
“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 E
(d) Exercise such other powers as may be necessary for carrying
out the purposes of this Chapter or any rules made there under.”
Apart from the same, there is no express power of arrest under
the Act on the Drugs Inspector.
F
SOME ENACTMENTS CONTAINING PROVISIONS
SIMILAR TO SECTION 22(1)(d) OF THE ACT
112. We may notice that the Seeds Act, 1966 (Section 14(1)(e),
the Insecticides Act, 1968 (Section 21(f)), the Kerala Fish Seed Act,
2014 (Section 19(1)(e), Uttarakhand Ground Water (Regulation and
Control of Development and Management) Act, 2016 [Section 13(1)(j)], G
contain provisions similar to what is contained in Section 22(1)(d) of the
Act.
113. The Weekly Holidays Act, 1942 [Section 8(1)(c)], the Jammu
and Kashmir Factories Act, 1999 [Section 9(1)(c)], contained provisions
H
1024 SUPREME COURT REPORTS [2020] 10 S.C.R.

A which confer power on the Authorities under the Act to exercise such
other power as may be necessary for carrying outer purposes of the
enactment. As far as the Shops and Commercial Establishment Act,
1958 [Section 19(1)(c)], after conferring the power to exercise such
powers, as may be necessary for carrying out the Act, the Law Giver
carves out a limitation by way of a proviso that no one shall be required,
B
under the said Section, to answer any question or give any evidence
tending to incriminate him. Such a proviso is also found in the Private
Medical Establishment Act, 2007 [vide Section 21(1)(b)] as also in the
Jammu and Kashmir Factories Act, 1999.
SPECIFIC STATUTES CONFERRING POWERS OF ARREST;
C COGNIZABLE VERSUS NON-COGNIZABLE OFFENCE
114. It is, however, relevant to notice the provisions of the
enactments containing the power to arrest and referred to in Deepak
Mahajan (supra). Section 104 of the Customs Act, 1962, at present,
reads as follows:
D
“104. Power to arrest. –(1) If an officer of customs empowered
in this behalf by general or special order of the 3[Principal
Commissioner of Customs or Commissioner of Customs] has
reason to believe that any person in India or within the Indian
customs waters has committed an offence punishable under section
E 132 or section 133 or section 135 or section 135A or section 136,
he may arrest such person and shall, as soon as may be, inform
him of the grounds for such arrest.
(2) Every person arrested under sub-section (1) shall, without
unnecessary delay, be taken to a magistrate.
F
(3) Where an officer of customs has arrested any person under
sub-section (1), he shall, for the purpose of releasing such person
on bail or otherwise, have the same powers and be subject to the
same provisions as the officer-in-charge of a police-station has
and is subject to under the 4 Code of Criminal Procedure, 1898 (5
G of 1898).
(4) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), any offence relating to —
(a) prohibited goods; or
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1025
[K. M. JOSEPH, J.]

(b) evasion or attempted evasion of duty exceeding fifty lakh A
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 B
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 C
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
(d) fraudulently availing of or attempt to avail of drawback or any
exemption from duty provided under this Act, if the amount of
drawback or exemption from duty exceeds fifty lakh rupees, shall
be non-bailable.
(7) Save as otherwise provided in sub-section (6), all other offences E
under this Act shall be bailable.26"
115. Section 35 of the The Foreign Exchange Regulation Act
(FERA), 1973 read as follows (FERA came to be repealed by The
Foreign Exchange Management Act (FEMA), 1999]:
“35. Power to arrest.—(1) If any officer of Enforcement F
authorised in this behalf by the Central Government, by general
26
Prior to 13.07.2006, when the present provision came to be substituted by Act 29 of
2006, the power to arrest was confined in relation to person about whom reason to
believe was entertained that he had committed an offence under Section 135. As can be
seen the power of arrest after 13.07.2006, has become more wide. Further, it is to be
noticed, that Sections 104(4) was substituted by Act 23 of 2012 w.e.f. 28.05.2012.
G
Sub-Section (4) before substitution read as follows:
“4.[Notwithstanding anything contained in Code of Criminal Procedure, 1898 (5 of
1898), an offence under this Act, shall not be cognizable. The change brought about by
sub-Section (4) as substituted, is that the offences mentioned in sub-Section (4), have
been declared to be cognizable. However, under Section 104(5), all other offences under
the Act have been declared to be non-cognizable. H
1026 SUPREME COURT REPORTS [2020] 10 S.C.R.

A or special order, has reason to believe that any person in India or
within the Indian customs waters has been guilty of an offence
punishable under this Act, he may arrest such person and shall, as
soon as may be, inform him of the grounds for such arrest.
(2) Every person arrested under sub-section (1) shall, without
B unnecessary delay, be taken to a magistrate.
(3) Where any officer of Enforcement has arrested any person
under sub-section (1), he shall, for the purpose of releasing such
person on bail or otherwise, have the same powers and be subject
to the same provisions as the officer-in-charge of a police station
C has, and is subject to, under the 1[Code of Criminal Procedure,
1973 (2 of 1974)].”
116. Section 68 of the Gold (Control) Act, 1968 (which also stands
repealed in 1990), read as follows:
“68. Power to arrest.
D
(1) Any Gold Control Officer authorised by the Administrator in
this behalf may, if he has reasons to believe that any person has
contravened, or is contravening, or is about to contravene any
provision of this Act, arrest such person and shall as soon as
possible inform him of the grounds for such arrest and shall take
E such arrested person to the nearest magistrate within a period of
twenty-four hours of such arrest excluding the time necessary
for the journey from the place of arrest to the court of the magistrate
and no such person shall be detained in custody beyond the said
period without the authority of a magistrate.
F (2) Any officer who has arrested any person under this section
shall, for the purpose of releasing such person on bail or otherwise,
have the same powers and be subject to the same provisions as
the officer-in-charge of a police station has, and is subject to,
under the Code of Criminal Procedure, 1898 (5 of 1898).”
G (Emphasis supplied)
117. Section 10(8) of the The Prevention of Food Adulteration
Act, 1954 (37 Of 1954), read as follows:
“10(8) Any food inspector may exercise the powers of a police
officer under section 42 of the Code of Criminal Procedure, 1973
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1027
[K. M. JOSEPH, J.]

(2 of 1974) for the purpose of ascertaining the true name and A
residence of the person from whom a sample is taken or an article
of food is seized.”
It may be noticed that Section 42 of the Cr.P.C. confers power of
arrest on a Police Officer to arrest even in regard to a non-cognizable
offence in the circumstances mentioned therein without a warrant. B
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 C
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 D
under the Railway Protection Force Act, 1957. It is an armed force.
119. In the Foreign Exchange Management Act, 1999, there is no
express power of arrest, as such conferred. Instead, it is relevant to
notice Section 37 of the said enactment:
E
“37. Power of search, seizure, etc.—
(1) The Director of Enforcement and other officers of
Enforcement, not below the rank of an Assistant Director, shall
take up for investigation the contravention referred to in section
13. —(1) The Director of Enforcement and other officers of
F
Enforcement, not below the rank of an Assistant Director, shall
take up for investigation the contravention referred to in section
13.”
(2) Without prejudice to the provisions of sub-section (1), the
Central Government may also, by notification, authorise any officer
or class of officers in the Central Government, State Government G
or the Reserve Bank, not below the rank of an Under Secretary
to the Government of India to investigate any contravention
referred to in section 13.
(3) The officers referred to in sub-section (1) shall exercise the
like powers which are conferred on income-tax authorities under H
1028 SUPREME COURT REPORTS [2020] 10 S.C.R.

A the Income-tax Act, 1961 (43 of 1961) and shall exercise such
powers, subject to such limitations laid down under that Act.”
120. The provision for arrest is contained in the Second Schedule
to the Income-Tax Act as a mode of recovery of tax.
121. A perusal of Section 104(4) of the Customs Act, as it stood
B when this Court decided Deepak Mahajan (supra), would show that
while an express power was conferred on the Customs Officer to arrest
under Section 104(1), it was considered to be non-cognizable offence.
Further, the power of arrest was confined only to an offence committed
under Section 135 of the Act. It is apposite to notice that under the
C CrPC, there is no power with the Police Officer to arrest in the case of
a non-cognizable offence except upon a Warrant or Order of a Magistrate.
122. In this regard, it may also be apposite to refer to the provisions
of the Central Excise Act, 1944. Section 13 confers the power to arrest.
It reads as follows:
D “13. Power to arrest:- Any Central Excise Officer not below the
rank of Inspector of Central Excise may, with the prior approval
of the Principal Commissioner of Central Excise or Commissioner
of Central Excise, arrest any person whom he has reason to believe
to be liable to punishment under this Act or the rules made
E thereunder.”
123. However, Section 9A, as it stood prior to it being amended
from the year 2004 onwards, declared that the offences under Section 9
were to be deemed to be non-cognizable under the provisions of the
Code of Criminal Procedure. In Sunil Gupta v. Union of India27, the
F 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:
G
“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
27
2000(118) ELT 8 P&H
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1029
[K. M. JOSEPH, J.]

searches and arrests under the Central Excise Act ”shall be carried A
out in accordance with the provisions of the Code of Criminal
Procedure .....” In other words, an officer of the Central Excise
shall make the arrest in the manner laid down in Section 46 of the
Code of Criminal Procedure. He “shall actually touch or confine
the body of the person to be arrested.....” In case of resistance,
B
the officer of the Central Excise “may use all means necessary to
effect the arrest.” The persons arrested “shall not be subjected to
more restraint than is necessary to prevent his escape.” Similarly,
a search shall be carried out in accordance with the procedure
laid down in Section 100. If the person of a lady has to be searched,
it shall be done “by another woman with strict regard to decency.” C
Two or more independent and respectable inhabitants of the locality
shall be called upon to be present. The search shall be made in
their presence and “a list of things seized in the course of such
search ..... shall be prepared ......” In a nut shell, the procedural
protection contained in the Code of Criminal Procedure has been
D
guaranteed even in case of arrests and searches under the Central
Excise Act, 1944. No more.”
124. A Single Judge of the High Court of Gujarat, also posed the
following question as the one which it had to answer in the case reported
in Bhavin Impex Pvt. Ltd. v. State of Gujarat28, as follows:
E
“1. The key question that arises for consideration in this writ petition
is as to whether the authorities under the Central Excise Act,
1944 (hereinafter referred to as ‘the Act’) have the power to
arrest a person under Section 13 of the Act without a warrant and
without filing an FIR or lodging a complaint before a Court of
competent jurisdiction.” F

125. The Court purported to follow the Punjab and Haryana High
Court in Sunil Gupta (supra), which we have referred and held, inter alia,
as follows:
“This Court is in agreement with the view taken by the Punjab G
and Haryana High Court, viz, a Central Excise Officer, (satisfying
the conditions laid down under Section 13) is not debarred from
arresting a person without a warrant when he has reason to believe
that the person is liable to punishment under the Act or the rules
28
2010(260) ELT 526 (Gujarat) H
1030 SUPREME COURT REPORTS [2020] 10 S.C.R.

A made thereunder. Section 13 is not curtailed by Section 18 and in
fact Section 18 is merely procedural.”
126. We must, however, notice the judgment of this Court reported
in Om Parkash and Another v. Union of India and Another29, a Judgment,
which dealt with the Central Excise Act, 1944 and also the Customs
B Act, 1962. The question, however, which arose was, whether under the
said enactments, as the offences were non-cognizable, were they bailable
as well? Section 9A, as it was considered by this Court, read as follows:
“9A. Certain offences to be non-cognizable.-(1) Notwithstanding
anything contained in the Code of Criminal Procedure, 1898 (5 of
C 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
D 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
E 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);
F
(c) a person who has been allowed to compound once in respect
of any offence under this Chapter for goods of value exceeding
rupees one crore;
(d) a person who has been convicted by the court under this Act
on or after the 30th day of December, 2005.”
G
127. The Court did make reference to both Sunil Gupta (supra)
and Bhavin Impex Pvt. Ltd. (supra). This Court went on to find, on an
examination of the provisions, that being non-cognizable offences under
the Central Excise Act, and taking note of the fact that as a general rule,
29
H (2011)14 SCC 1
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1031
[K. M. JOSEPH, J.]

though, with exceptions under the First Schedule to the CrPC, non- A
cognizable offences were treated as bailable, and also, taking note of
Section 20 of the Excise Act, which appeared to show that the offences
were bailable that they were bailable. What is, however, noteworthy for
the purpose of deciding the case before us, is the statement of the law
as contained in paragraph-41, which reads as follows:
B
“41. In our view, the definition of “non-cognizable offence”
in Section 2(l) of the Code makes it clear that a non-cognizable
offence is an offence for which a police officer has no authority
to arrest without warrant. As we have also noticed hereinbefore,
the expression “cognizable offence” in Section 2(c) of the Code
means an offence for which a police officer may, in accordance C
with the First Schedule or under any other law for the time being
in force, arrest without warrant. In other words, on a construction
of the definitions of the different expressions used in the Code and
also in connected enactments in respect of a non-cognizable
offence, a police officer, and, in the instant case an excise officer, D
will have no authority to make an arrest without obtaining a warrant
for the said purpose. The same provision is contained in Section
41 of the Code which specifies when a police officer may arrest
without order from a Magistrate or without warrant.”
(Emphasis supplied) E
128. The Court applied the same principles in regard to the cases
which it decided under the Customs Act. We may notice that Section 18
of the Central Excise Act, 1944 provides for the manner of making an
arrest. It reads as follows:
“18. Searches and arrests how to be made.- All searches made F
under this Act or any rules made thereunder and all arrests made
under this Act shall be carried out in accordance with the provisions
of the Code of Criminal Procedure, 1898(5 of 1898), relating
respectively to searches and arrests made under that Code.”
129. Equally of interest, are the provisions contained in Sections G
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 H
1032 SUPREME COURT REPORTS [2020] 10 S.C.R.

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
B 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
C 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 provisions as the
D officer in charge of a police station may exercise and is subject to
under the Code of Criminal Procedure, 1898 (5 of 1898), when
investigating a cognizable case:
Provided that-
(a) If the Central Excise Officer is of opinion that there is sufficient
E evidence or reasonable ground of suspicion against the
accused person, he shall either admit him to bail to appear
before a Magistrate having jurisdiction in the case, or forward
him in custody to such Magistrate;
(b) If it appears to the Central Excise Officer that there is not
F sufficient evidence or reasonable ground of suspicion against
the accused person, he shall release the accused person on
his executing a bond, with or without sureties as the Central
Excise Officer may direct, to appear, if and when so required,
before the Magistrate having jurisdiction, and shall make a
full report of all the particulars of the case to his official
G
superior.”
130. On a perusal of the statement of law contained in paragraph-
41, we find that this Court has found that as the provisions under the
enactments in question declared the offences to be non-cognizable, the
officer exercising the power of arrest, could not arrest, except after
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1033
[K. M. JOSEPH, J.]

obtaining a warrant for the said purpose. That they may not arrest without A
obtaining a warrant in respect of the non-cognizable offences, being the
view taken by this Court, cannot be squared with the view taken by
Punjab and Haryana High Court and Gujarat High Court, respectively,
in Sunil Gupta (supra) and also Bhavin Impex Pvt. Ltd. (supra), which
took the view in effecting arrest under the Central Excise Act, no warrant
B
was required. It is apparently consequent upon the same that Legislature
stepped in with amendments. Section 9A came to be amended and it
reads as follows after the amendment:
“Section 9A. Certain offences to be non-cognizable.-
(1) Notwithstanding anything contained in the Code of Criminal C
Procedure, 1973(2 of 1974), offences under section 9, except the
offences referred to in sub-section (1A), shall be non-cognizable
within the meaning of that Code.
(2) Any offence under this Chapter may, either before or after
the institution of prosecution, be compounded by the Principal Chief D
Commissioner of Central Excise or Chief Commissioner of Central
Excise on payment, by the person accused of the offence to the
Central Government, of such compounding amount and in such
manner of compounding as may be prescribed:
Provided that nothing contained in this sub -section shall apply to E
—
(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 F
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; G
(d) a person who has been convicted by the court under
this Act on or after the 30th day of December, 2005.”
(Emphasis supplied)

H
1034 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 131. The result would appear to be that acknowledging the effect
of making the offences being non-cognizable to be to limit the power of
the authorities under the Act for effecting arrest under the Act, to require
a warrant, certain offences were declared to be cognizable as noticed in
Section 9A, as amended after the Judgment in Om Parkash (supra).
The resultant position after the amendment is, it became open to the
B
Officers to effect the arrest in regard to a cognizable offence without
obtaining a warrant.
132. In regard to the Customs Act, 1962 in Section 104, under the
present avatar, two changes have been brought about. Firstly, the power
to arrest is available in respect of offences under Sections 132, 133, 135,
C 135A and 136. The offences are divided into two categories. Under
Section 104(4), the offences which fall within its ambit, are treated as
cognizable. The other offences are treated as non-cognizable under
Section 104(5). For instance, if a person is involved in an offence relating
to evasion or attempted evasion of duty exceeding 50 lakhs rupees (w.e.f.
D 01.08.2019), while the offence is cognizable, the power of arrest is
conferred on the Officers under Section 104(1). The power to arrest is
conferred and the only condition to be fulfilled is that the Officer has
reason to believe that the person has committed offence concerned.
The position is the same in respect of offence relating to prohibited goods.
E 133. We have embarked upon referring to the provisions relating
to arrest under the Excise Act and Customs Act and the decision of this
Court in Om Prakash(supra) in taking the view as it did in paragraph-41,
in order to appreciate the contention that, after the amendment to Section
36AC, the offences have been declared cognizable. If we proceed on
the basis that the power of arrest can be traced from Section 22(1)(d) of
F the Act, then, after the amendment in Section 36AC, by which, the
offences falling under Chapter IV of the Act, which are declared as
cognizable and non-bailable, the decks are cleared for effecting arrest
without a warrant by the Inspector.
134. However, the question would arise whether there exists the
G power of arrest with the Drugs Inspector. We will, on the one hand,
array possible objections to the conferment of such powers. The power
to arrest is a drastic power. It involves encroachment on personal liberty.
The Drugs Inspector is not a Police Officer under the CrPC. The
Legislature was aware of the power of the Police Officer to arrest
H when he embarks on investigation of a cognizable case, as is clear from
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1035
[K. M. JOSEPH, J.]

Section 157 of the CrPC. There is another indication in the Act which A
may reveal the mind of the Legislature that the power of arrest was not
intended to be conferred on the Drugs Inspector. Section 34AA, reads
as follows:
“34AA.- Penalty for vexatious search or seizure.—Any Inspector
exercising powers under this Act or the rules made thereunder, B
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
(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 D
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 E
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 F
be searched any house, boat or place;
(b) vexatiously and unnecessarily detains, searches or arrests any
person;
(c) vexatiously and unnecessarily seizes the movable property of G
any person, on pretence of seizing or searching for any article
liable to confiscation under this Act;
(d) commits, as such officer, any other act to the injury of any
person, without having reason to believe that such act is re-quired
for the execution of his duty, shall, for every such offence, be
H
1036 SUPREME COURT REPORTS [2020] 10 S.C.R.

A punishable with fine which may extend to two thousand rupees.
Any person wilfully and maliciously giving false information and
so causing an arrest or a search to be made under this Act shall
be punishable with fine which may extend to two thousand rupees
or with imprisonment for a term which may extend to two years
or with both.”
B
(Emphasis supplied)
136. Still further, as we have noticed in the Central Excise Act,
1944, apart from the fact that the power of arrest is expressly conferred,
the manner, in which the power is to be exercised, is specifically indicated,
C as we have noticed on a perusal of Sections 19 and 20. Section 68 of the
Gold Control Act, 1968 has expressly conferred power of arrest, the
conditions in which the power could be exercised and further procedure
to be followed.
137. We have noticed that the Inspector under the Act has been
D conferred with a vast and formidable array of powers, and in an enactment
like the Act, the taking of samples, the Report given by the Competent
Officer in regard to the same and the right reserved to the concerned
person to seek a further Report from the Central Laboratory, go a long
way in the successful culmination of a complaint under Section 32 of the
Act. The Inspector is, undoubtedly, endowed with the power of inspection,
E taking samples of any drug or cosmetic, searching any person, searching
any place, searching any vehicle, examining records, registers, documents
and other material objects and seizing the same, requiring any person to
produce any record, register or other document. These are powers which
are expressly conferred on the Inspector. Though, a complaint could be
F filed by other categories of complainants in Section 32 of the Act, the
Inspector is pivot around which the Act moves. Rule 51(4) makes it a
duty on the part of the Drugs Inspector to investigate any complaint in
writing which may be made to him. It is also his duty under Rule 51(5) to
institute prosecution in respect of breaches of the Act and the Rules
thereunder. He is also duty-bound under Rule 51(7) to make inquiries
G 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
H Act, undoubtedly, is the procedure to be followed by the Inspector. We
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1037
[K. M. JOSEPH, J.]

are, therefore, to ascertain the meaning of the expression “other powers”, A
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
B
under Chapter IV of the Act and there is no power for the Police Officer
under the CrPC to investigate under the Act or to file a Report under
Section 173 of the CrPC, which indeed is indisputable, then, a power of
arrest, which is necessary for the purpose of investigating and prosecution
of the offences falling within Chapter IV of the Act, must be conceded
to the Drugs Inspector. The legislative intention in conferring various C
powers, as we have noticed in the foregoing provisions of Section 22 of
the Act and declaring that all other powers, which are necessary for the
purpose of the Act, are to inhere in the Drugs Inspector, reassures us
that we would be correctly ascertaining the legislative intention to be
that on a Drug Inspector taking-up a matter falling under Chapter IV of
D
the Act, he is invested with the power to arrest.
138. There is another aspect which may have an important bearing
on the issue. Under Section 36AC of the Act, the offences as mentioned
therein which include some of the offences under Chapter IV of the Act
are declared cognizable and non-bailable. The provision imposes
restriction on the arrested person being released on bail or on his own E
bond unless the public prosecutor has been given an opportunity to oppose
the application and when the public prosecutor opposes the application,
the Court is to be satisfied that there are reasonable grounds for believing
that the accused person is not guilty of such offence and that he is not
likely to commit an offence. This limitation, is apart from the limitations F
in the CrPC, inter alia. Now, the Police Officer acting under the CrPC
even proceeding for a moment on the basis that it is sufficient that a
mere memorandum of arrest as required under the CrPC is prepared
and further there is compliance with other provisions of the CrPC also,
would it suffice is the question that would arise in the following manner?
We have noted from the provisions of the Act and the Rules that it is the G
Drugs Inspector who is empowered and duty bound to investigate the
complaint about violations of acts and rules. He is the person charged
with a duty of prosecuting the offenders. If the police officer is merely
to be granted a power of arrest and without having any power of
investigation then how would it be possible for the police officer to make H
1038 SUPREME COURT REPORTS [2020] 10 S.C.R.

A any investigation under the act and if no investigation is possible, how
would the Police Officer be in a position to be of any assistance to the
Public Prosecutor and, therefore, to the Court in the 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.
B
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
C 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
D 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
Cr.P.C.
139. Declaring the power to arrest with the Inspector, is not to be
E understood as proclaiming that the Inspector is bound to arrest any person.
The provisions of the CrPC, relating to arrest, would necessarily have to
be followed by the Drugs Inspector. In fact, he is obliged to bear in mind
the law, as declared by this Court in D.K. Basu (supra), and the peril of
defying the same, would be to invite consequences, inter alia, as are
F provided therein. As far as the arrest, not being mentioned in Section
34AA, as forming a ground for visiting the delinquent Officer with penalty,
it may be noticed that there is a residuary power in Section 34AA and it
would cover any act. We notice that Section 34AA(d) provides that if
any Inspector, exercising powers under the Act or the Rules made
thereunder, commits, as such Inspector, any other act, to the injury of
G any person without having reason to believe that such act is required for
the execution of his duty, he shall be punishable with fine which may
extend to one thousand rupees.
140. Regarding the power for seeking and ordering a remand
under Section 167, we would apply the principles laid down by this Court
H in Deepak Mahajan (supra) and the same principles would apply.
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1039
[K. M. JOSEPH, J.]

141. This process of interpretation would produce the result of A
harmonizing two seemingly irreconcilable commands from the Law-Giver.
This interpretation commends itself to us for the reason that the
investigation into offences, under Chapter IV of the Act, would commence,
be carried out and would culminate in, in the safe hands of the competent
and qualified Statutory Authority, as designated by law. It would also
B
avoid an outside agency like a Police Officer, being obliged to register
an FIR, for the reason that where arrest has to be made, a FIR is to be
registered, and, when the registering of the FIR carries with it an
unattainable object of preferring a Final Report under Section 173 of the
CrPC, as far as the Police Officer is concerned. We make it clear that
if a Police Officer is approached with regard to a complaint regarding C
commission of an offence falling under Chapter IV of the Act, he is not
to register an FIR unless it be that a cognizable offence, other than an
offence falling under Chapter IV of the Act, is also made out. He must
makeover the complaint to the competent Drug Inspector so that action
in according with law is immediately taken where only offences under
D
Chapter IV are made out.
142. As far as the arrest contemplated under Section 41 of the
CrPC is concerned, in case a cognizable offence, falling under Chapter
IV of the Act, is committed, either in the presence of the Drugs Inspector,
or in respect of which offence, a Police Officer would have power to
arrest, as provided therein, viz., covered by the situations contemplated E
under Section 41(ba), the Drugs Inspector would be entitled to effect
the arrest. We are arriving at this conclusion on the basis that since the
procedure under the CrPC is to be read as applicable, except to the
extent that a different procedure is to be provided under the Act, and
since there is no procedure or power otherwise provided in the Act in F
regard to arrest, the powers and procedure available to a Police Officer,
with the limitations on the said power, as laid down in D.K. Basu (supra),
as also as contained in the CrPC, would be applicable.
143. By way of following Deepak Mahajan (supra), we hold that
the Drugs Inspector, under the Act, is invested with certain powers similar G
to a Police Officer. Still further, we would hold that the word
“investigation” cannot be limited only to a Police investigation, as has
been noted in Deepak Mahajan (supra). Thirdly, we find that the power
to arrest a person must indeed flow from the provisions of a Statute.
The statutory provision under the Act is Section 22(1)(d). The arrested
H
1040 SUPREME COURT REPORTS [2020] 10 S.C.R.

A person, under the Act, would be an accused person to be detained under
Section 167(2) of the CrPC. No doubt, the Police Officer is bound to
provide assistance to the Inspector in case of need to effectuate the
arrest where there is resistance or likelihood of resistance. No doubt, in
regard to the arrest in relation to offences falling under Chapter IV of
the Act, which do not fall under Section 36AC, the power of arrest
B
would depend upon the provision in the Schedule to the CrPC.
144. We again reiterate that the existence of the power to arrest
with the Drugs Inspector is not to be understood as opening the doors to
making illegal, unauthorized or unnecessary arrest. Every power comes
with responsibility. In view of the impact of an arrest, the highest care
C must be taken to exercise the same strictly as per the law. The power of
arrest must be exercised, recognizing the source of his authority, to be
Section 22(1)(d) of the Act, which is for carrying out the purpose of
Chapter IV of the Act or any Rules made thereunder.
145. Section 33P of the Act, reads as follows:
D
“33P. Power to give directions.—The Central Government may
give such directions to any State Government as may appear to
the Central Government to be necessary for carrying into execution
in the State any of the provisions of this Act or of any rule or
order made thereunder.”
E
We notice that the Central Government is conferred with powers
to give directions to the State Government for the purpose of carrying
into execution, in the State, any of the provisions of the Act or any Rule
or Order made thereunder. It is for the Central Government to consider
the question whether it can, under the said provision, issue directions in
F regard to the power of arrest, which we have found, subject to what we
have stated in this Judgment.
146. Further, Section 58 of the CrPC provides that the Officers
In-charge of Police Stations are to report cases of all persons arrested
without warrant as provided therein. We make it clear that the Drugs
G Inspector must, apart from other relevant provisions of the CrPC, comply
with the requirement of reporting. In view of the need to safeguard the
interest of persons, who may be proceeded against by the Drugs Inspector,
we also hold and direct that the Drugs Inspector will immediately, after
arrest, make a report of the arrest to his superior Officer.
H
UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS 1041
[K. M. JOSEPH, J.]

147. It has been brought to our notice that FIRs have been filed in A
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
B
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 CrPC, we are inclined to direct that this C
Judgment, holding that Police Officers do not have power to arrest in
regard to cognizable offences under Chapter IV of the Act, is to operate
from the date of this Judgement.
149. Before we proceed to the operative portion of our Judgment,
we must express the hope that the vexed issues which we have resolved D
through this Judgment, in regard to the power of arrest, may engage the
competent Legislative Body.
THE CONCLUSIONS/DIRECTIONS
150. Thus, we may cull out our conclusions/directions as follows: E
I. In regard to cognizable offences under Chapter IV of the
Act, in view of Section 32 of the Act and also the scheme
of the CrPC, the Police Officer cannot prosecute offenders
in regard to such offences. Only the persons mentioned in
Section 32 are entitled to do the same. F
II. There is no bar to the Police Officer, however, to investigate
and prosecute the person where he has committed an
offence, as stated under Section 32(3) of the Act, i.e., if he
has committed any cognizable offence under any other law.
III. Having regard to the scheme of the CrPC and also the G
mandate of Section 32 of the Act and on a conspectus of
powers which are available with the Drugs Inspector under
the Act and also his duties, a Police Officer cannot register
a FIR under Section 154 of the CrPC, in regard to cognizable

H
1042 SUPREME COURT REPORTS [2020] 10 S.C.R.

A offences under Chapter IV of the Act and he cannot
investigate such offences under the provisions of the CrPC.
IV. Having regard to the provisions of Section 22(1)(d) of the
Act, we hold that an arrest can be made by the Drugs
Inspector in regard to cognizable offences falling under
B Chapter IV of the Act without any warrant and otherwise
treating it as a cognizable offence. He is, however, bound
by the law as laid down in D.K. Basu (supra) and to follow
the provisions of CrPC.
V. It would appear that on the understanding that the Police
Officer can register a FIR, there are many cases where
C FIRs have been registered in regard to cognizable offences
falling under Chapter IV of the Act. We find substance in
the stand taken by learned Amicus Curiae and direct that
they should be made over to the Drugs Inspectors, if not
already made over, and it is for the Drugs Inspector to take
D action on the same in accordance with the law. We must
record that we are resorting to our power under Article
142 of the Constitution of India in this regard.
VI. Further, we would be inclined to believe that in a number of
cases on the understanding of the law relating to the power
of arrest as, in fact, evidenced by the facts of the present
E
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
F operate with effect from the date of this Judgment.
VII. We further direct that the Drugs Inspectors, who carry out
the arrest, must not only report the arrests, as provided in
Section 58 of the CrPC, but also immediately report the
arrests to their superior Officers.
G 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.

H Divya Pandey Appeal dismissed.