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TMI Blog2020 (8) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Criminal Procedure and also the mandate of Section 32 of the Act and on a conspectus of powers which are available with the Drugs Inspector under the Act and also his duties, a Police Officer cannot register a FIR Under Section 154 of the Code of Criminal Procedure, in regard to cognizable offences under Chapter IV of the Act and he cannot investigate such offences under the provisions of the Code of Criminal Procedure. IV. Having regard to the provisions of Section 22(1)(d) of the Act, we hold that an arrest can be made by the Drugs Inspector in regard to cognizable offences falling under Chapter IV of the Act without any warrant and otherwise treating it as a cognizable offence. He is, however, bound by the law as laid down in D.K. Basu [ 1996 (12) TMI 350 - SUPREME COURT] and to follow the provisions of Code of Criminal Procedure. V. It would appear that on the understanding that the Police Officer can register a FIR, there are many cases where FIRs have been registered in regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our chambers as soon as the same is received by Registrar General. We further grant liberty to the Respondent No. 4 to initiate criminal proceedings in accordance with the procedure laid down under this Act forthwith against the Petitioner. 24. Registrar General to sent a certified copy of this order to Principal Secretary, Food Safety and Drug Administration, Government of U.P. for his necessary information and follow up action. It is further directed that Principal Secretary, Food Safety and Drug Administration, Government of U.P. shall notify such direction to all the D.Ms. of the State so that no such error recurs. 5. We heard Ms. Pinky Anand, learned Additional Solicitor General appearing on behalf of the Appellant. We also heard Shri S. Nagamuthu, learned Senior Counsel, whom we appointed as Amicus Curiae. SUBMISSIONS OF THE Appellant 6. Ms. Pinky Anand, learned Additional Solicitor General would submit that the High Court was in error in holding that FIR under Code of Criminal Procedure cannot be lodged in respect of the Act. She drew our attention to Section 36AC of the Act. Thereunder, as we shall see in greater detail, certain offences under the Act have been decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e if it so desired to provide that the offences falling Under Section 32 should be investigated in the manner provided under the provisions of the CRPC namely by lodging a FIR and after investigating the offences by filing a report within the meaning of Section 173 of the Code of Criminal Procedure. The fact that such a procedure was not contemplated by the Legislature is clear from the fact that under the pre amended regime, three out of four categories mentioned in the present amended avtaar were already present and the amendment added only one more to the categories of persons who alone could institute the prosecution. In fact, as regards Section 36AC declaring certain offences under the Act to be cognizable, he drew our attention to the second part of the first Schedule of the Code of Criminal Procedure He contended inter alia that even without the aid of Section 36AC, the offences Under Section 27(1)(a) and 27(1)(c) were cognizable having regard to the term of imprisonment provided as punishment for the same. Nothing turned on the offence being cognizable except apprehension of the offender without the aid of a warrant. He would submit that in regard to the offences embraced b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d cosmetics and spurious cosmetics for the purpose of Chapter III. Section 13 provides for offences arising out of imports. Chapter IV falls under the chapter heading "Manufacture, Sale and Distribution of Drugs and Cosmetics". Interestingly, misbranded drugs, adulterated drugs, spurious drugs, misbranded cosmetics and spurious cosmetics, adulterated cosmetics are defined by provisions found in Chapter IV for the purpose of Chapter IV. Section 18 contemplates that from such date as may be fixed by the State Government, manufacture for sale or distribution, or to sell, or stock or exhibit or offer for sale or distribution of drugs misbranded, adulterated, spurious drugs and cosmetics inter alia are prohibited. Section 21 reads as follows: 21. Inspectors.-- (1) The Central Government or a State Government may by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Inspectors for such areas as may be assigned to them by the Central Government or the State Government, as the case may be. (2) The powers which may be exercised by an Inspector and the duties which may be performed by him, the drugs or [cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the conditions of the licences are being observed; (3) to procure and send for test or analysis, if necessary, imported packages which he has reason to suspect contain drugs being sold or stocked or exhibited for sale in contravention of the provisions of the Act or Rules thereunder; (4) to investigate any complaint in writing which may be made to him; (5) to institute prosecutions in respect of breaches of the Act and Rules thereunder; (6) to maintain a record of all inspections made and action taken by him in the performance of his duties, including the taking of samples and the seizure of stocks, and to submit copies of such record to the controlling authority; (7) to make such enquiries and inspections as may be necessary to detect the sale of drugs in contravention of the Act; (8) when so authorized by the State Government, to detain imported packages which he has reason to suspect contain drugs, the import of which is prohibited. Rule (52) deals with duties of Inspectors in regard to manufacturer. It reads as follows: 52. Duties of inspectors specially authorised to inspect the manufacture of drugs or cosmetics. --Subject to the instructions of the contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of which an offence under this Chapter has been, or is being, committed; or (ii) enter and search any place in which he has reason to believe that an offence under this Chapter has been, or is being, committed; or (iii) stop and search any vehicle, vessel or other conveyance which, he has reason to believe, is being used for carrying any drug or cosmetic in respect of which an offence under this Chapter has been, or is being, committed, and order in writing the person in possession of the drug or cosmetic in respect of which the offence has been, or is being, committed, not to dispose of any stock of such drug or cosmetic for a specified period not exceeding twenty days, or, unless the alleged offence is such that the defect may be removed by the possessor of the drug or cosmetic, seize the stock of such drug or cosmetic and any substance or Article by means of which the offence has been, or is being, committed or which may be employed for the commission of such offence; (cc) examine any record, register, document or any other material object found with any person, or in any place, vehicle, vessel or other conveyance referred to in Clause (c), and seize the same if he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or offers for sale or distributes,- (a) any drug deemed to be adulterated Under Section 17A or spurious Under Section 17B and which when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Section 320 of the Indian Penal Code (45 of 1860), solely on account of such drug being adulterated or spurious or not of standard quality, as the case may be, shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than ten lakh rupees or three times value of the drugs confiscated, whichever is more: Provided that the fine imposed on and released from, the person convicted under this Clause shall be paid, by way of compensation, to the person who had used the adulterated or spurious drugs referred to in this clause: Provided further that where the use of the adulterated or spurious drugs referred to in this Clause has caused the death of a person who used such drugs, the fine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (a) or Clause (b) or Clause (c), in contravention of any other provision of this Chapter or any Rule made thereunder, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine which shall not be less than twenty thousand rupees: Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year. 15. Sections 27A, 28, 28A, 28B and 29 provide for other offences. Section 30 contemplates penalty in the case of subsequent offences. Section 31 deals with confiscation. Section 32 which is at the center stage of the controversy reads as follows: 32. Cognizance of offences. -- (1) No prosecution under this Chapter shall be instituted except by-- (a) an Inspector; or (b) any gazetted officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government or a State Government by a general or special order made in this behalf by that Government; or (c) the person aggrieved; or (d) a recognised consumer association whether such person is a member of that asso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence, relating to adulterated or spurious drug and punishable under Clauses (a) and (c) of Sub-section (1) of Section 13, Clause (a) of Sub-section (2) of Section 13, Sub-section (3) of Section 22, Clauses (a) and (c) of Section 27, Section 28, Section 28A, Section 28B and Sub-sections (1) and (2) of Section 30 and other offences relating to adulterated drugs or spurious drugs, shall be cognizable. (b) no person Accused, of an offence punishable under Clauses (a) and (c) of Sub-section (1) of Section 13, Clause (a) of Sub-section (2) of Section 13, Sub-section (3) of Section 22, Clauses (a) and (c) of Section 27, Section 28, Section 28A, Section 28B and Sub-sections (1) and (2) of Section 30 and other offences relating to adulterated drugs or spurious drugs, shall be released on bail or on his own bond unless-- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r offence. 'Cognizable offence' is defined in Section 2(c). It reads as follows: 2(c) " cognizable offence" means an offence for which, and" cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant; (Emphasis supplied) 20. Section 2(d) defines 'complaint'. It reads as follows: 2(d) " complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant; 21. Section 2(h) defines investigation as follows: 2(h)"investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this Section to investigate. (3) Any Magistrate empowered Under Section 190 may order such an investigation as above-mentioned. (Emphasis supplied) 24. Section 157 provides for Procedure for Investigation. The limitations for the use of the statement given Under Section 161 are spelt out in Section 162. Section 173 provides for the report to be given on completion of investigation. 25. Chapter XIV deals with the "Conditions requisite for Initiation of Proceedings". Section 190 reads as follows: 190. Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The second part, as it were, deals with classification of offences against other laws. It reads as follows: Classification of Offences against other laws Offence Cognizable or non-cognizable Bailable or non-bailable By what Court triable 1 2 3 4 If punishable with death, imprisonment for life, or imprisonment for more than 7 years; Cognizable Non-bailable Court of Session. If punishable with imprisonment for 3 years, and upwards but not more than 7 years. Cognizable Non-bailable Magistrate of the first class. If punishable with imprisonment for less than 3 years or with fine only. Non-cognizable Bailable Any Magistrate. 28. Section 4(2) of the Code of Criminal Procedure declares that all offences under any law other than the Indian Penal Code shall be investigated, inquired into and tried and otherwise dealt with according to the Code of Criminal Procedure 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 Indian Penal Code. The purport of Section 5 is this: If any special law or lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment or State Government authorised in writing by the respective Government by a general or special order made in this behalf by that Government (3) the person aggrieved (4) a recognised consumer association whether such person is a member of that association or not. Section 32 further proclaims that unless it is otherwise provided, no court inferior to a court of session shall try an offence punishable under Chapter IV. Section 32(3) makes it clear that nothing in chapter IV would stand in the way of the person being prosecuted against under any other law for any act or omission which constitutes an offence against this Chapter. Section 32 was substituted by Act 22 of 2008. Prior to the substitution it read as follows: 32. Cognizance of 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. (2) No court inferior to that of a Metropolitan Magistrate or of 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provides, inter alia, that an Inspector can set the ball rolling, is considered. The Inspectors, under the Act, are to possess the prescribed qualifications. The qualifications bear a nexus with the performance of the specialised duties which are to be performed under the Act. Apparently, knowledge about the drugs and cosmetics goes a long way in equipping them to perform their multifarious functions. Section 22 clothing the Inspector with powers must also be viewed thus in the context of the legislative value judgment that a complaint is to be moved by the Inspector under the Act and not by a Police Officer under the Code of Criminal Procedure The Inspector is expected to inspect premises where drugs and cosmetics are being manufactured, sold, stocked, exhibited, offered for sale or distributed. Samples are to be taken at the points of manufacturing, selling, stocking and the points of delivery. He is expected also, where he has reason to believe that an offence under the Act has been committed, to search any person, enter any place, stop and search any vehicle, examine records, and documents and seize the same. Last but not the least, Section 22(1)(d) declares that he may exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport Under Section 173. The Police Report, in fact, is the Report submitted Under Section 173 of the Code of Criminal Procedure to the court. Under Section 190 of the Code of Criminal Procedure, the court may take cognizance on the basis of the police report. Such a procedure is alien to Section 32 of the Act. In other words, it is not open to the Police Officer to submit a report Under Section 173 of the Code of Criminal Procedure in regard to an offence under Chapter IV of the Act Under Section 32. In regard to offences contemplated Under Section 32(3), the Police Officer may have power as per the concerned provisions. Being a special enactment, the manner of dealing with the offences under the Act, would be governed by the 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 Code of Criminal Procedure, 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 Code of Criminal Procedure This is, undoubtedly, subject to the law p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted only by a Magistrate himself. It is not open to him to cause an investigation be it by a Police Officer or any other person. b. In regard to the inquiry so conducted by him, he must call upon the complainant to produce all his witnesses and they must be examined not on the basis of any affidavit, and not without the support of an oath but the examination must be under an oath. It is to be remembered that under the provisions existing under the previous Code, an elaborate preliminary inquiry where even an Accused had right of cross-examination of witnesses, was contemplated at the hands of the Magistrate before the committal order was passed. This no longer survives after the amendment. 42. Offences exclusively 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 Code of Criminal Procedure, collects other evidence, arrives at a satisfaction that indeed a case is made out to arraign a person or persons and, accordingly, the charge-sheet is filed Under Section 173. Section 207 of the Code contemplates making available statements of all the witnesses examined among other doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is named a final report where no basis is found for prosecution. On the strength of the same, he invites the court concerned to take cognizance. If Under Section 32 of the Act, the Police Officer has no authority to file a report, he questions the actions of the Police Officer as one which is bound to die a natural death. He would submit that declaring certain offences Under Section 36AC cognisable, is only to empower the arrest of the Accused. 45. It may be noticed at this juncture, that the Act does contemplate arrest. Section 36AC clearly declares that certain offences are non-bailable. Section 36AC(b) proclaims that no person Accused of the offences mentioned therein shall be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application of such release and where the Public Prosecutor opposes, the court is satisfied that there are reasonable ground for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. This limitation on the grant of bail is in addition to the limitations under the Code of Criminal Procedure or and under any other law for the time being in for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under Section 420 of the Indian Penal Code and Sections 18 and 19 of the TOHO Act at the Police Station. The investigation was transferred to the CBI, Respondent in the case. The CBI registered another FIR which included Sections 18 and 19 of the TOHO Act. Appellant No. 2 was arrested and produced before the Magistrate. Appellant No. 1 surrendered. The Respondent filed a complaint Under Section 22 of TOHO Act pointing out that the period of 90 days from the detention expired on 07.05.2008, Appellant No. 2 filed an application for grant of bail within the meaning of Section 167(2) of the Code of Criminal Procedure. It was, while considering the same, this Court held, inter alia, as follows: 19. TOHO 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 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 inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73 of the Code did not and could not arise. In other words, if no police report could be filed, Sub-section (2) of Section 167 of the Code was not attracted. xxx xxx xxx xxx 28. To put it differently, upon completion of the investigation, an authorised officer could only file a complaint and not a police report, as a specific bar has been created by Parliament. In that view of the matter, the police report being not a complaint and vice versa, it was obligatory on the part of the Respondent to choose the said method invoking the jurisdiction of the Magistrate concerned for taking cognizance of the offence only in the manner laid down therein and not by any other mode. The procedure laid 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. (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: 37. In the present case, however, the Respondent having special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the requirement Under Section 23. This Court held, inter alia, as follows: 67. We are also inclined to hold that in view of the provisions of Section 25 of MCOCA, the provisions of the said Act would have an overriding effect over the provisions of the Code of Criminal Procedure and the learned Special Judge would not, therefore, be entitled to invoke the provisions of Section 156(3) Code of Criminal Procedure for ordering a special inquiry on a private complaint and taking cognizance thereupon, without traversing the route indicated in Section 23 of MCOCA. In other words, even on a private complaint about the commission of an offence of organised crime under MCOCA cognizance cannot be taken by the Special Judge 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate Under Section 5(4) of the Prevention of Corruption Act, 1947. Cognizance was taken and the trial went on. The Accused thereupon pointed out the flaw in the investigation. It is in the said circumstances, this Court proceeded to deal with what is investigation, inter alia: 8. ... Thus, under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the Accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary 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. ... 55. No doubt, the Court went on to take the view that the invalidity of the investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a company results in contravention of the provisions contained in Section 24 or Sub-section (1) of Sections 24-A, 25 or 26 and such act also amounts to criminal misconduct which is defined as an offence under Indian Penal Code, then a complaint can be filed by or under the order of the Council or of the Central Government Under Section 28, which may ultimately result in imposition of the punishment prescribed Under Section 24 or Sub-section (2) of Sections 24-A, 25 or 26 and such member or non-member or company can also be prosecuted for any identified offence under Indian Penal Code. 21. The object underlying the prohibition contained in Section 28 is 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 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 Indian Penal Code or any other law. xxx xxx xxx xxx 41. It is also apposite to mention t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t vis-o?=-vis the Code of Criminal Procedure disposed of the application directing the Respondent to amend the FIR, which was registered, by converting the offence mentioned therein Under Sections 379/411/120-B/34 Indian Penal Code to Section 21 of the MMDR Act. The High Court in para 18 of the impugned order held as under: 18. In view of the aforesaid and taking into consideration the provisions contained Under Section 21(6) of the said Act I hold that: (i) The offence under the said Act being cognizable offence, the police could have registered an FIR in this case; (ii) However, so far as taking cognizance of an offence under the said Act is concerned, it can be taken by the Magistrate only on the basis of a complaint filed by an 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 Section 379 Indian Penal Code 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the groundwater levels. 70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other Sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take 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 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 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act. Consequently, the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the Magistrates concerned to proceed accordingly. (Emphasis supplied) 62. Chapter XII of the Code of Criminal Procedure carries the chapter heading "Information to the Police and their Powers to Investigate". The Chapter starts off with Section 154 carrying Section heading "Information in cognizable cases". It declares that every information relating to a cognizable offence given to an officer in charge of the police station, if given orally, is to be reduced to writing and whether given in writing or reduced to writing it is to be signed by the informant. The key elements of Section 154 Code of Criminal Procedure can be noticed. Information in relation to a cognizable offence reaching the officer in char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot; (b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. (2) In each of the cases mentioned in Clauses (a) and (b) of the proviso to Sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub-section, and, in the case mentioned in Clause (b) of the said proviso, the officer shall also forthwith notify 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 parts - (i) An officer in charge of a police station may from information received have reason to suspect the commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng under chapter IV of the Act. 64. Section 160 refers to investigation under the Chapter, viz., Chapter XII. Section 161 speaks about the examination of witnesses and how the statements are to be reduced to writing. Again, Section 161 speaks about an investigation carried out under Chapter XII. The use to which statements Under Section 161 can be put and the limitation on the same are spelt out in Section 162 Code of Criminal Procedure Reverting back to Section 157, we have taken note of the requirement about the police officer reporting to the Magistrate about the reason to suspect entertained by the police officer about the 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 Code of Criminal Procedure on a complaint, a police report or information received from any person other than a police officer or otherwise. Section 157 appears to contemplate information received Under Section 154 or knowledge gained otherwise about the commission of a cognizance offence clothing the police officer with the power to investigate leading to the sending of the report to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 157, 158, 159, 160, 161, 170 and 173 are part of a scheme of provisions geared to empower and require investigation of cognisable offences which are to culminate in a police report within the meaning of Section 190(b) of the Code of Criminal Procedure However, what is applicable in respect of offences under Chapter IV of the Act is not 190 of the Code of Criminal Procedure but Section 32 of the Act which does not permit cognizance being taken on a police report. The entire exercise of a police officer proceeding on a basis of a FIR becomes futile. It is not contemplated in law. It therefore becomes unauthorised. IMPACT OF LALITA KUMARI V. GOVERNMENT OF UTTAR PRADESH AND ORS. (2014) 2 SCC 1 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 Code of Criminal Procedure, 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 cognizable offence is disclosed or not, if the information received does not disclose a cognizable offence but indicates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t empowered to investigate. After investigation is completed, the result of such investigation is required to be submitted as provided Under Sections 168, 169 and 170. Section 170 specifically provides that if, upon an investigation, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the Accused to a Magistrate, such officer shall forward the Accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the Accused or commit for trial. Further, if the 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 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 Code of Criminal Procedure on the ground that the Police Officer at Delhi was not ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest. This brings up the issue, therefore, of the person empowered to arrest. 73. Perusal of Section 36AC of the Act makes it clear that arrest is contemplated under the Act. Conditions have been imposed for grant of bail as enacted in Section 36AC which we have already referred. If the Inspector under the Act has no authority to carry out the arrest, there cannot be a situation where arrest is in the contemplation of the law giver and yet there is no person who can effectuate that arrest. 74. The further question which would therefore arise is, the impact of finding that arrest can be effected by 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 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. (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. (7) The arrestee should, where he so requests ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Security Force (BSF), the Central Industrial Security Force (CISF), the State Armed Police, Intelligence Agencies like the Intelligence Bureau, RAW, Central Bureau of Investigation (CBI), CID, Traffic Police, Mounted Police and ITBP, which have the power to detain a person and to interrogate him in connection with the investigation of economic offences, offences under the Essential Commodities Act, Excise and Customs Act, Foreign Exchange Regulation Act etc. ......" No doubt, these are all cases where express power of arrest was conferred on those Authorities under the concerned law. 80. We may notice that a Bench of this Court in Arnesh Kumar v. State of Bihar and Anr. (2014) 8 SCC 273 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 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 Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even years whether with or without fine, if the following conditions are satisfied, namely: (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; (ii) the police office is satisfied that such arrest is necessary- (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person 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, and the police officer shall record while making such arrest, his reasons in writing: 2[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 cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, to appear before him. As long as a person complies with the Notice, Section 41A(iii) prohibits arrest unless the Police Officer, for reasons to be recorded, is of the view that he is to be arrested. Section 41B of the Code of Criminal Procedure, again inserted w.e.f. 01.11.2010, casts a duty on a Police Officer, making an arrest, to bear an accurate, visible and clear identification of his name. He is to prepare a Memorandum of Arrest, which is, inter alia, to be countersigned by the person arrested. Section 41D of the Code of Criminal Procedure confers a right on the arrested person to meet an Advocate of his choice during the interrogation, though not throughout interrogation. Under Section 42 of the Code of Criminal Procedure, 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 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 nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, is duty-bound to inform him of his entitlement to be released on Bail. The Police Officer is also under an obligation to inform, Under Section 50A of the Code of Criminal Procedure, a nominated person about the factum of arrest. This came into force on 23.06.2006. Section 51 deals with search of the arrested person. 86. Section 54 of the Code of Criminal Procedure declares that when any person is arrested, he shall be examined by a Medical Officer. Section 54A of the Code of Criminal Procedure, inserted w.e.f. 23.06.2006, specifically provides for identification of the arrested person. Section 55A of the Code of Criminal Procedure, 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 Code of Criminal Procedure 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 Code of Criminal Procedure, reads as follows: 57. Person arrested not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of a non-bailable offence. It, essentially, deals with a situation where a person is brought before a court other than the High Court or Court of Sessions. There are certain restrictions and conditions to be fulfilled in the matter of grant of Bail on the Court, as is stated therein. 89. Section 439 of the Code of Criminal Procedure, confers special powers on the High Court or the Court of Sessions in regard to Bail. It reads as follows: 439. Special powers of High Court or Court of Session regarding bail. (1) A High Court or Court of Session may direct- (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 Sub-section (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 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 notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower under Clause (b) of Sub-section (1) of that Section as if the reference to "Magistrate" in that Section includes also a reference to a "Special Court" designated Under Section 36AB. 91. The learned Counsel for the Union of India would submit that the Inspector, Under Section 32 of the Act, cannot be treated as a Police Officer who has the power to arrest under the Code of Criminal Procedure Reliance is placed on Badaku Joti Savant v. State of Mysore (1966) 3 SCR 698. Similarly, support is drawn from Raj Kumar Karwal v. Union of India and Ors. (1990) 2 SCC 409. Reliance is also placed on 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 and Balkishan A. Devidayal v. State of Maharashtra (1980) 4 SCC 600. These decisions, apparently, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out that there is no express power on the Drugs Inspector under the Act to arrest and when an arrest is effected, whether it becomes necessary to register an FIR Under Section 154 of the Code of Criminal Procedure The learned Amicus Curiae submitted as follows: He agreed that for a person to be released on Bail, he should have been remanded to custody. He should further have been arrested Under Section 157 of the Code of Criminal Procedure in order that he be remanded Under Section 167 of the Code of Criminal Procedure If he is arrested Under Section 41(1) of the Code of Criminal Procedure, immediately thereafter, a case should be registered and he should be sent to the Court seeking remand. Any case registered Under Section 154 or 155 of the Code of Criminal Procedure, is to culminate in the Report Under Section 173(2) of the Code of Criminal Procedure There is no other way for giving disposal to the case. Filing of such a Final Report Under Section 190 of the Code of Criminal Procedure is to take cognizance, 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or series of statutes relating to the subject-matter. 13. This Court has adopted the same Rule in M. Pentiah v. Muddala Veeramallappa [AIR 1961 SC 1107 : (1961) 2 SCR 295]; Gammon India Ltd. v. Union of India [ (1974) 1 SCC 596 : 1974 SCC (L&S) 252 : AIR 1974 SC 960]; Mysore SRTC v. Mirja Khasim Ali Beg [ (1977) 2 SCC 457 : 1974 SCC (L&S) 282 : AIR 1977 SC 747]; V. Tulasamma v. Sesha Reddy [(1977) 3 SCC 99 : AIR 1977 SC 1944]; Punjab Beverages (P) Ltd. v. Suresh Chand [ (1978) 2 SCC 144 : 1978 SCC (L&S) 165 : AIR 1978 SC 995]; 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] 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: (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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrest of a person involves an encroachment on his personal liberty. Article 21 of the Constitution of India declares that no person shall be deprived of his personal liberty and life except in accordance with procedure established by law. There can be no doubt that the power to arrest any person therefore must be premised on a law which authorizes the same. 99. Under the Act, as noted by us, and bearing in mind the law laid down in connection with similar Statutes, we have no hesitation in rejecting the argument of the Petitioner that 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 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 mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the Code of Criminal Procedure, as it existed at the time when the Act was enacted in 1940. This is following the principle that the Legislature must be assumed to know the law which exists on the Statute Book when it makes a new law. It must, therefore, be assumed to know that the power of arrest is expressly conferred on the Police Officer in the manner which we have referred to. The Legislature has not, in the Act, yet conferred express power on the Drugs inspector, to arrest. However, Section 22(1)(d) of the Act, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustody on his being satisfied of the three preliminary conditions, namely (1) the arresting officer is legally competent to make the arrest; (2) that the particulars of the offence or the accusation for which the person is arrested or other grounds for such arrest do exist and are well-founded; and (3) that the provisions of the special Act in regard to the arrest of the persons and the production of the arrestee serve the purpose of Section 167(1) of the Code. (Emphasis supplied) 104. Section 35(2) in FERA and Section 104(2) of 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: 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, the word 'Accused' limited to the scope of Section 167(1) and (2)--particularly in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atutory duty is enjoined on them to inform the arrestee of the grounds for such arrest as contemplated Under Article 22(1) of the Constitution and Section 50 of the Code. Therefore, they have necessarily to make records of their statutory functions showing the name of the informant, as well as the name of the person who violated any other provision of the Code and who has been guilty of an offence punishable under the Act, nature of information received by them, time of the arrest, seizure of the contraband if any and the statements recorded during the course of the detection of the offence/offences. 107. It also found the following powers available under five Central enactments: SI. No. Name of the Act Power to search premises Power to search suspected persons, entering or leaving India Power to search persons Power to stop and search conveyances Power to seize goods, documents etc. Power to arrest. Power to examine persons Power to summon persons to give evidence and produce documents 1 2 3 4 5 6 7 8 9 10 1. Foreign Exchange Regulation Act, 1973 Section 37 Section 34 Section 34 Section 36 Section 38 Section 35 Section 39 Section 40 2. The Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edure that even a private person can arrest as provided in Section 43 of the Code of Criminal Procedure. The Foreign Exchange Regulation Act, 1973 (hence repealed); the Customs Act, 1962; the Gold (Control) Act, 1968; 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 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 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 Code of Criminal Procedure, 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 an FIR Under Section 154 of the Code of Criminal Procedure, is duty-bound to carry the matter to its logical conclusion, viz., to investigate the matter as provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 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; 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: 104. Power to arrest.-(1) If an officer of customs empowered in this behalf by general or special order of the [Princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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. (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 such arrested person to the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3." (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 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 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 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 Code of Criminal Procedure, there is no power with the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spectable 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 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 Gujarat 2010(260) ELT 526 (Gujarat), as follows: 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure, non-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: 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 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, will have no authority to make an arrest without obtaining a warrant for the said purpose. The same provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise Officer that there is not 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 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 obtaining a warrant for the said purpose. That they may not arrest without 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 was required. It is apparently consequent upon the same that Legislature ste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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. 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. 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 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 q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 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 in the Code of Criminal Procedure, inter alia. Now, the Police Officer acting under the Code of Criminal Procedure even proceeding for a moment on the basis that it is sufficient that a mere memorandum of arrest as required under the Code of Criminal Procedure is prepared and further there is compliance with other provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, 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 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 in Deepak Mahajan (supra) and the same principles would apply. 141. This process of interpretation would produce the result of 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 avoid an outside agency like a Police Officer, being obliged to register an FIR, for the reason that where arrest has to be ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectuate 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 Code of Criminal Procedure. 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 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: 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. We notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 Code of Criminal Procedure, the Police Officer cannot prosecute offenders in regard to 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 committed any cognizable offence under any other law. III. Having regard to the scheme of the Code of Criminal Procedure and also the mandate of Section 32 of the Act and on a conspectus of powers which are available with the Drugs Inspector under the Act and also his duties, a Police Officer cannot register a FIR Under Section 154 of the Code of Criminal Procedure, in regard to cognizable offences under Chapter IV of the Act and he cannot investigate such offences under the provisions of the Code of Criminal Procedure. IV. Having regard to the provisions of Section 22(1)(d) of the Act, we hold that an arrest can be made by the Drugs Inspector in regard to cognizable offences falling under Chapter IV of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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