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Police Officer Cannot Arrest/Register FIR/ Investigate In Regard To Cognizable Offences Under Chapter IV Of Drugs & Cosmetics Act: SC [Read Judgment]

LIVELAW NEWS NETWORK
29 Aug 2020 10:43 AM GMT
Police Officer Cannot Arrest/Register FIR/ Investigate In Regard To Cognizable Offences Under Chapter IV Of Drugs & Cosmetics Act: SC [Read Judgment]
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"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."
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The Supreme Court, in a judgment delivered on Friday, has held that, the Police Officers cannot register FIR, arrest, prosecute or investigate in regard to Cognizable offence under Chapter IV of the Drugs and Cosmetics Act, 1940.

The bench of Justices Sanjay Kishan Kaul and KM Joseph held 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.

The court held thus while upholding an Allahabad High Court judgment that had quashed an FIR registered by the Police with respect to an offence registered under Drugs and Cosmetics Act. Centre had approached the Apex Court assailing the High Court judgment which held that FIR under CrPC cannot be lodged in respect of the Act.While dismissing the Appeal, the bench made the following conclusions:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.

Drug Inspector is invested with the power to arrest

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. The legislative intention in conferring various 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 the Act, he is invested with the power to arrest. (Para 137)

Highest care must be taken to exercise power to arrest 

The Court clarified 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."

Ruling Operates From The Date Of The Judgment

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 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.


Case name

UNION OF INDIA VS. ASHOK KUMAR SHARMA

Case no.

CRIMINAL APPEAL NO.200 OF 2020

Coram

Justices Sanjay Kishan Kaul and KM Joseph

Counsel

ASG Pinky Anand and Sr. Adv S. Nagamuthu (Amicus Curiae)


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