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Interplay Between the provisions of the Code of Criminal Procedure and the Drugs and Cosmetics Act, 1940 ?
Salient features of order passed by Honorable Supreme Court of India in S.L.P ( Criminal) No. 4178 of 2019 , Union of India Versus Ashok Kumar Sharma & Others.
The Scheme of The Drugs and Cosmetics Act , 1940 must be borne in mind when Section 32, which provides, inter alia, that an Inspector can set the ball rolling, is considered. Having regard to the scheme of The Drugs and Cosmetics Act , 1940 & Rules and Section 32, in particular, Section 32 of The Drugs and Cosmetics Act , 1940 must be scrupulously observed. It is clear that the Legislature has not included the Police Officer as a person who can move the court before the matter reaches the court.
The lodging of the first information report leading to the registration of the first information report, investigation is carried out culminating in a report under Section 173. The Police Report, in fact, is the Report submitted under Section 173 of the CrPC to the court. Under Section 190 of the CrPC, the court may take cognizance on the basis of the police report Such a procedure is alien to Section 32 of the Act
Perusal of Section 36AC of the Act makes it clear that arrest is contemplated under the Act. There is an inconsistency between Section 32 and Section 36AC.
We have noticed that the Inspector under the Act is, undoubtedly, endowed with the power of inspection, taking samples of any drug or cosmetic, searching any person, searching any place, searching any vehicle, examining records, registers, documents and other material objects and seizing the same, requiring any person to produce any record, register or other document.
These are powers which are expressly conferred on the Inspector. This is having regard to both his qualifications and also the powers conferred on him. Section 23 of the Act, undoubtedly, is the procedure to be followed by the Inspector.
We are, therefore, to ascertain the meaning of the expression “other powers”, which are essential for carrying out the object of Chapter IV and the Rules made thereunder.
If we interpret that it is a Drugs Inspector, acting under Section 22 of the Act, who alone can investigate offences falling under Chapter IV of the Act and there is no power for the Police Officer under the 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.
This interpretation commends itself to us for the reason that the investigation into offences, under Chapter IV of the Act, would commence, be carried out and would culminate in, in the safe hands of the competent and qualified Statutory Authority, as designated by law.
It would also avoid an outside agency like a Police Officer, being obliged to register an FIR, for the reason that where arrest has to be made, a FIR is to be registered, and, when the registering of the FIR carries with it an unattainable object of preferring a Final Report under Section 173 of the CrPC, as far as the Police Officer is concerned.
Also read | Analysis: Judgments on RTI Act, 2005
We make it clear that if a Police Officer is approached with regard to a complaint regarding commission of an offence falling under Chapter IV of the Act, he is not to register an FIR unless it be that a cognizable offence, other than an offence falling under Chapter IV of the Act, is also made out. He must makeover the complaint to the competent Drug Inspector so that action in according with law is immediately taken where only offences under Chapter IV are made out.
By way of following Deepak Mahajan (supra), we hold that the Drugs Inspector, under the Act, is invested with certain powers similar to a Police 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 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 would depend upon the provision in the Schedule to the CrPC.
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 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.
It has been brought to our notice that FIRs have been filed in regard to offences under Chapter IV of the Act.
In the view we have taken, no further investigation can be done by the Police Officer. However, it is in the interest of justice that the FIRs are made over by the Police Officers to the concerned Drugs Inspector at the earliest. We are persuaded to issue such directions in the exercise of our powers under Article 142 of the Constitution of India.
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.
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.
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 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.
Having regard to the provisions of Section 22(1)(d) of the Act, we hold that an arrest can be made by the Drugs Inspector in regard to cognizable offences falling under Chapter IV of the Act without any warrant and otherwise treating it as a cognizable offence. He is, however, bound by the law as laid down in D.K. Basu (supra) and to follow the provisions of CrPC.
It would appear that on the understanding that the Police Officer can register a FIR, there are many cases where FIRs have been registered in regard to cognizable offences falling under Chapter IV of the Act.
We find substance in the stand taken by learned Amicus Curiae and direct that they should be made over to the Drugs Inspectors, if not already made over, and it is for the Drugs Inspector to take action on the same in accordance with the law. We must record that we are resorting to our power under Article 142 of the Constitution of India in this regard.
Further, we would be inclined to believe that in a number of cases on the understanding of the law relating to the power of arrest as, in fact, evidenced by the facts of the present case, police officers would have made arrests in regard to offences under Chapter IV of the Act.
Therefore, in regard to the power of arrest, we make it clear that our decision that Police Officers do not have power to arrest in respect of cognizable offences under Chapter IV of the Act, will operate with effect from the date of this Judgment.
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.
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