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Police do not have arrest/registration of FIR powers under Chapter IV, Drugs & Cosmetics Act: SC

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The Supreme Court has held that the Police Officer cannot prosecute offenders in regard to cognizable offences under Chapter IV of the Drugs and Cosmetics Act, 1940, in view of Section 32 of the Act and the scheme of the CrPC. Police Officers, therefore do not have power to arrest in respect of cognizable offences under Chapter IV of the Act, and this direction will operate with effect from the date of this Judgment.

A division bench of Justices S.K. Kaul and K.M. Joseph issued their judgement in an appeal against order of the High Court that allowed quashing of FIR for offences committed under the Drugs and Cosmetics Act, 1940. 

Facts: the Dispute involves an online complaint filed, post which an inquiry was directed by the Commissioner (Food Protection and Drugs) and an inspection was conducted by the Drug Inspector at the Clinic and the Pharmacy. The first respondent 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. Since he had committed offence under Section 18 and 27 of the Act, an FIR was lodged against him. The respondent filed a writ petition for quashing the FIR and not to arrest him was filed by the respondent. The High Court by the impugned order had allowed the writ petition saying 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.

High Court’s impugned order: The High Court in its order had referred to Section 32 of the Act and found that only an Inspector, a Gazetted Officer conferred with authority, a person aggrieved or recognised consumer organization is eligible to make a complaint. The provisions of Cr.PC wouldn’t 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. By no stretch of imagination could the concerned Inspector have lodged an F.I.R. in this case and authorise the police to make investigation in this case. It was further held that the lodging of the FIR is absolutely barred and FIR deserved to be quashed. The court also directed the issue of notice to the Inspector who had gone to lodge the FIR, despite there being a special provision for launching the prosecution and explanation was sought.

Issues framed: The Court framed the following issued to be discussed in the present case:

  • The interplay between provisions of Cr.PC and the Drugs and Cosmetics Act, 1940
  • 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 be investigated or whether Section 32 of the Act supplants the procedure for investigation of offences under CrPC and the taking of cognisance of an offence under Section 190 of the CrPC?
  • Can the Inspector under the Act, arrest a person in connection with an offence under Chapter IV of the Act.

Before the Apex Court: Supreme Court has upheld the High Court’s order.

The Court discussed the impact of the case of Lalita Kumari vs Government of UP where a Constitution Bench of the Supreme Court has held that registration of an FIR is mandatory under Section 154 of the CrPC, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

The Court noted that the principle laid down in Lalita Kumari is not attracted when an information is made before a Police Officer making out the commission of an offence under Chapter IV of the Act mandating a registration of a FIR under Section 154 of the CrPC

Supreme Court has noted that with 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.

The Court has stated that 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.

It has been held that 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

Court has held that with regards to the provisions of Section 22(1)(d) of the Act, w an arrest can be made by the Drugs Inspector for 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 case and to follow the provisions of CrPC.

The Court has also directed that the  cases where FIRs have been registered in regard to cognizable offences falling under Chapter IV of the Act by the police officers,  be made over to the Drugs Inspectors, who would to take action on the same in accordance with the law.

The Court also clarified that Police Officers do not have power to arrest in respect of cognizable offences under Chapter IV of the Act, and this direction will operate with effect from the date of this Judgment.

Read the Judgment here;

10817_2019_37_1501_23696_Judgement_28-Aug-2020

-India Legal Bureau

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