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SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, K.M. JOSEPH, JJ.
UNION OF INDIA – APPELLANT(S)
VERSUS
ASHOK KUMAR SHARMA AND OTHERS – RESPONDENT(S)
CRIMINAL APPEAL NO.200 OF 2020 (@ S.L.P.(CRIMINAL) NO.4178 OF 2019)
Decided on : 28-08-2020
(A) Drugs and Cosmetics Act, 1940 – Sections 32, 36AC and 36AD – Criminal Procedure Code, 1973 – Sections 41, 154, 190 and 195 – Constitution of India – Articles 21, 22(1) and 22(2 – Power to arrest – It is Drugs Inspector who is empowered and duty bound to investigate complaint about violations of acts and rules – He is the person charged with a duty of prosecuting offenders – Power to arrest any person must be premised on a law which authorizes the same – Arrest is contemplated under the Act – If Inspector under the Act has no authority to carry out arrest, there cannot be a situation where arrest is in contemplation of law giver and yet there is no person who can effectuate that arrest – Police cannot arrest as there can be no investigation by Police – However, Police Officer is bound to provide assistance to Inspector in case of need to effectuate arrest where there is resistance or likelihood of resistance – Arrest of a person involves an encroachment on his personal liberty – Article 21 of Constitution of India declares that no person shall be deprived of his personal liberty and life except in accordance with procedure established by law – Prosecution can be launched only by persons mentioned in Section 32 of Act – A Police Officer, as such, does not figure as one of persons who may prefer a report under Section 173(2) of Cr.P.C, on which, cognizance could be taken by Special Court – Registration of FIR which under scheme of Cr.P.C., sets ball rolling, empowering Police Officer to investigate under Section 157 of Cr.P.C., and gather material and finally file a Report, would be inapplicable to an offence under Chapter IV of Act – However, provisions of Cr.P.C., relating to arrest, would necessarily have to be followed by Drugs Inspector. (Paras 73, 95, 98, 99, 100, 134, 138, 139 and 143)
(B) Criminal Procedure Code, 1973 – Sections 154 and 173 – Drugs and Cosmetics Act, 1940 – Sections 32 and 36AD – Section 32 of Act provides for taking cognizance of offence by court only at instance of four categories mentioned therein – They are, (a) Inspector under the Act; (b) Any Gazetted Officer empowered by Central or State Government; (c) Aggrieved person; and (d) Voluntary Association – Legislature has not included Police Officer as a person who can move court – Under Section 190 of Cr.P.C, court may take cognizance on the basis of police report – Such a procedure is alien to Section 32 of the Act – It is not open to Police Officer to submit a report under Section 173 of Cr.P.C. in regard to an offence under Chapter IV of the Act under Section 32 – In regard to offences contemplated under Section 32(3), Police Officer may have power as per concerned provisions – Being a special enactment, manner of dealing with offences under the Act, would be governed by provisions of the Act – Law Giver has provided for distinct modes in regard to prosecuting of offences under general law, viz., Cr.P.C. and special provision, as contained in Section 32 of the Act. (Paras 32 and 40)
(C) Drugs and Cosmetics Act, 1940 – Sections 22(1)(d), 32, 36AC and 36AD – Criminal Procedure Code, 1973 – Sections 58 and 154 – Prosecution of offenders under Drugs and Cosmetics Act, 1940 – A Police Officer cannot prosecute offenders in regard to such offences – Only persons mentioned in Section 32 are entitled to do the same – However, there is no bar to Police Officer to investigate and prosecute the person where he has committed offence as stated under Section 32(3) of the Act – A Police Officer cannot register a FIR under Section 154 of Cr.P.C, in regard to cognizable offences under Chapter IV of the Act and he cannot investigate such offences under provisions of Cr.P.C. – Arrest can be made by 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 law as laid down in D.K. Basu and to follow provisions of Cr.P.C. – 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 Drugs Inspectors and it is for Drugs Inspector to take action on the same in accordance with law – Such direction is by resorting to power under Article 142 of Constitution of India – Drugs Inspectors, who carry out arrest, must not only report the arrests, as provided in Section 58 of Cr.P.C., but also immediately report arrests to their superior Officers – Decision that Police Officers do not have power to arrest in regard to cognizable offences under Chapter IV of Act, is to operate from date of this Judgement. (Para 150)
Facts of the case:
Point in issue centres around interplay between the provisions of the Code of Criminal Procedure and the Drugs and Cosmetics Act, 1940? Whether in respect of offences falling under chapter IV of Act, a FIR can be registered under Section 154 of the Cr.P.C. and the case investigated or whether Section 32 of the Act supplants the procedure for investigation of offences under Cr.P.C. and the taking of cognizance of an offence under Section 190 of the Cr.P.C.? Still further, can the Inspector under the Act, arrest a person in connection with an offence under Chapter IV of the Act.
Findings of Court:
On an understanding of 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 Cr.P.C., we are inclined to direct that this 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.
Result : Appeal dismissed.
Key Points: - Only persons specified in Section 32 of the Act (Inspector, authorised gazetted officer, aggrieved person, recognised consumer association) may prosecute offences under Chapter IV (!) (!) . - No court inferior to a Court of Session may try an offence punishable under Chapter IV unless otherwise provided (!) (!) . - Police Officers cannot register an FIR or investigate offences under Chapter IV; such action is barred by Section 32 of the Act (!) (!) . - Drugs Inspectors are authorised to arrest for cognisable offenses under Chapter IV without a warrant, and must follow CrPC procedures including immediate reporting of arrest (!) (!) (!) . - The power of arrest for Police Officers is excluded for offences under Chapter IV; only Drugs Inspectors have such arrest power under the Act (!) (!) . - FIRs registered by Police Officers for offences under Chapter IV must be transferred to Drugs Inspectors, who must then handle the case (!) (!) . - The judgment operates prospectively from its date, and Drugs Inspectors must immediately report arrests to their superior officers (!) (!) .
JUDGMENT :
K.M. Joseph, J.
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 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.
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 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 complainant it may be noted is none other than the Drugs Inspector. The respondent filed a writ petition for quashing the FIR and not to arrest him. The appellant, viz., the Union of India through the Secretary, Ministry of Health and Family Welfare was not made a party to the writ petition. The respondents in the writ petition were the Superintendent of Police, the Station House Officer and the Drugs Inspector, Mau in his personal capacity. This is apart from the State of U.P. which was made the first respondent. It is pointed out by the appellant that the High Court issued notice seeking presence of the appellant. The High Court by the impugned order had allowed the writ petition and quashed the FIR. In short, the reasoning of the High Court is that under the Act Section 32 must be scrupulously observed and it is the mechanism for 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 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 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:
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
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