Union of India vs Ashok Kumar Sharma and Others

Drugs and Cosmetics Act, 1940 – Chapter IV, s.32 – Held: s.32 declares that prosecution under Chapter IV can be instituted only by an Inspector, any gazetted officer of Central Government or State Government authorised in writing by a general or special order, the person aggrieved and a recognised consumer association whether such person is a member of that association or not. Drugs and Cosmetics Act, 1940 – Cognizance of offences – Comparison between s.32, 1940 Act and s.190, CrPC – Discussed – Code of Criminal Procedure, 1973 – s.190.

Code of Criminal Procedure, 1973 – Chapters XV, XVI –Held: Chapters XV and XVI must be followed in regard to even offences falling under Chapter IV, 1940 Act – Drugs and Cosmetics Act, 1940 – Chapter IV.

Code of Criminal Procedure, 1973 – s.202(1), (2) – Effect of – Discussed.

Drugs and Cosmetics Act, 1940 – Cognizable offences under Chapter IV – Duty of police officer u/s.154, CrPC irrespective of impact of territorial jurisdiction – Discussed – Code of Criminal Procedure, 1973 – s.154.

Code of Criminal Procedure, 1973 – s.170 – Requirement for invoking – Held: Cardinal requirement to invoke s.170 is availability of power with the Magistrate to take cognizance upon a police report – This key requirement is absent in case of an offence falling u/Chapter IV, 1940 Act– Drugs and Cosmetics Act, 1940. Drugs and Cosmetics Act, 1940 – s.22 – Powers of inspector – Discussed.

Drugs and Cosmetics Act, 1940 – s.36AC – Held: Perusal of s.36AC makes it clear that arrest is contemplated under the Act – Conditions have been imposed for grant of bail as enacted in s.36AC. Code of Criminal Procedure, 1973 – Power of arrest and bail under – Chapters V, XXXIII; ss.41, 41A, 41B, 41D, 42, 43, 436, 437, 439 – Discussed – Code of Criminal Procedure (Amendment) Act, 2008.

Drugs and Cosmetics Act, 1940 – Offences u/Chapter IV not falling u/s.36AC – Arrest – Held: In relation to such offences, the power of arrest would depend upon the provision in the Schedule to the CrPC – Code of Criminal Procedure, 1973.

Drugs and Cosmetics Act, 1940 – s.34AA – Arrest not a ground for visiting a delinquent Officer with penalty – Held: There is a residuary power in s.34AA and it would cover any act.

Drugs and Cosmetics Act, 1940 – Arrest by Drugs Inspectors – Requirement of reporting – Held: Drugs Inspectors must not only report the arrests, as provided in s.58, CrPC, but also immediately report it to their superior Officers – Code of Criminal Procedure, 1973 – s.58.

Dismissing the appeal, the Court

HELD: 1.1 ANALYSIS

The Drugs and Cosmetics Act, 1940 (“the Act”) purports to achieve the object of regulating the import, manufacture, distribution and sale of drugs and cosmetics. The word Drugs has been defined in Section 3(b). Section 3(e) defines Inspector. Chapter III contains provisions which provide for deeming definitions of misbranded drugs, adulterated drugs, spurious drugs, misbranded 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. It is necessary to notice the rules relevant in this regard. Rule (49) deals with qualifications of Inspectors. Rule (51) deals with duties of Inspectors in regard to sale. Rule (52) deals with duties of Inspectors in regard to manufacturer. Section 22 deals with the powers of the Inspector. Section 23 provides for the procedure to be followed by the Inspector. It includes the tendering of fair price when a sample is taken of a drug or cosmetic under the Chapter. There are various other provisions regarding the procedure to be followed by the Inspector which includes seizure of record/ register, documents or other material objects and the need to notify a judicial Magistrate [Section 23(6)]. Section 27 provides for penalty for manufacture, sale etc. of drug in contravention of Chapter IV. 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 32B provides for compounding of certain offences. [Paras 10-15][958-B-C, EG; 959-D-E; 960-B, H; 961-E-F; 963-E-G; 966-B-C]

1.2 Chapter IV-A provides for “Provisions relating to Ayurvedic, Siddha and Unani Drugs”. It also contains provisions for the purpose of Chapter IV-A dealing with deemed definitions of Misbranded drugs, Adulterated drugs, Spurious drugs and are created offences. Section 33G provides for appointment of Inspectors by the Central Government or the State Government. Section 33H makes the provision of Section 22,23,24 and 25 and the rules, if any, thereunder applicable in respect of Ayurvedic, Siddha and Unani drugs. The last Chapter of the Act is Chapter V. It bears the Chapter heading “Miscellaneous”. Section 36 declares that any Metropolitan Magistrate or Judicial Magistrate of First Class may pass a sentence in excess of the powers under the CrPC. Section 36A provides that certain offences are to be tried summarily. Section 36AB provides for Special Courts. It declares that the Central Government or the State Government in consultation with the Chief Justice of the High Court, shall, for certain offences designate one or more Court of Sessions as a Special Court or Special Courts. Sub-section (2) provides that the Special Court may try an offence other than the offences covered by sub-section (1) which may be charged against the accused at the same trial. Section 36 AD is also relevant which provides for application of Code of Criminal Procedure, 1973 to proceedings before Special Court. [Paras 16-18][966-G-H; 967C-D; 968-E-F]

2.1 RELEVANT PROVISIONS OF THE CRPC

Section 2(a) defines “bailable offence” as offence shown as such in the First Schedule, or which is made bailable under any other law for the time being in force. “Non-bailable offence” means any other offence. ‘Cognizable offence’ is defined in Section 2(c). Section 2(d) defines ‘complaint’. ‘Police report’ is defined in Section 2 (r) as meaning a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173. Chapter XII comes under the heading ‘Information to the Police and their Powers to Investigate’. Section 154 inter alia provides that every information relevant to the commission of a cognizable offence given orally to an officer in charge of a Police Station shall be reduced to writing by him or under his direction, and be read over to informant. Every such information whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it. The substance of the same is to be entered in a book to be kept by such officer in such form as may be prescribed. Section

155 deals with information as to non-cognizable cases and the manner of investigation of such cases. No police officer can investigate a non-cognizable offence without the order of the Magistrate having power to try such case or commit such case for trial. [Paras 19-23][969-C, E; 970-A, E-F]

2.2 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. Chapter XIV deals with the “Conditions requisite for Initiation of Proceedings”. Section 190 provides for Cognizance of offences by Magistrates. Chapter XV deals with Complaints to Magistrates.Chapter XVI comes under the chapter heading “Commencement of Proceedings before Magistrates”. Section 204 deals with “Issue of Process” in a case where the Magistrate taking cognizance is of the view that there is sufficient ground for proceeding in the matter. It may also be relevant to notice part II of the First Schedule to the CrPC. It must be remembered that cognizable offence has been defined in terms of the classification of the offences under the First Schedule. The first part of the First Schedule deals with offences under the Indian Penal Code. The second part, as it were, deals with classification of offences against other laws. Section 4(2) of the CrPC declares that all offences under any law other than the IPC shall be investigated, inquired into and tried and otherwise dealt with according to the CrPC. 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 IPC. The purport of Section 5 is this: If any special law or local law for the time being in force contemplates any special jurisdiction or power or any special form of procedure prescribed, unless there is something to the contrary, to be found, it is the provisions of the special law or the local law which would prevail. [Paras 24-28][971-C-D, G; 972-E-F; 973-D-F]

3. IMPACT OF SECTION 2 OF THE ACT

Section 2 of the Act declares that the provisions of the Act shall be in addition to and not in derogation of the Dangerous Drugs Act 1930 and any other law for the time being in force. As far as Section (2) of the Act is concerned if the attempt of the appellant is to contend that it imports the provisions in CrPC which tends to overwhelm, in particular, any special procedure provided under the Act, the Court has no hesitation in repelling the same. The purport of Section 2 appears to be that Legislature intended to keep alive the provisions of the Dangerous Drugs Act, 1930. It would continue to hold sway despite the enactment of the Act. If there are any other provisions of cognate laws dealing with the subjects dealt with by the Act, the operation of those Acts was to be preserved. The Act does not provide for any express repeal of any enactment. [Para 29][973-G-H; 974-A-B]

4.1 SECTION 32 OF THE ACT

Section 32 of the Act falls in chapter IV. Inspectors are appointed by the Central Government or the State Government from persons possessing prescribed qualifications under a notification. Section 21 contemplates prescribing under rules the powers which may be exercised by the Inspectors apart from the duties which may be performed by him inter alia. Section 22 of the Act provides for power of search by the Inspectors. They have power to inspect any premise, take samples, powers of search, examine any record, register, material object and seize them. The Legislature has undoubtedly applied the provisions of the CrPC in regard to searches under the Act. Section 23 elaborately provides for procedure to be adopted by Inspectors. [Para 30][974-C-D]

4.2 Section 32 falling under section heading ‘Cognizance of offences’ declares, in unambiguous words, that prosecution, under Chapter IV, can be instituted only by (1) an Inspector (2) any gazetted officer of the Central Government 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. It will be noticed at once that Section 190 of the CrPC also has a title ‘Cognizance of Offence by Magistrate’. Cognizance under Section 190 is contemplated in three different modes. They are - (1) complaints of facts constituting such offences, (2) police report of such facts, (3) upon any information received from a person other than a Police Officer or upon a court being possessed of knowledge about the commission of the offence. In other words, where the court takes cognizance suo motu. A comparison between Section 32 of the Act and 190 of the CrPC dealing with cognizance of offences, makes it abundantly clear that the Law Giver has provided for distinct modes in regard to prosecuting of the offences under the general law, viz., the CrPC and the special provision, as contained in Section 32 of the Act. Section 193 of the CrPC provides for Cognizance of offences by Courts of Session. Section 195 prohibits the Court from taking any cognizance of the offences mentioned therein except on the complaint in writing by the persons named therein. Section 198A and Section 199 likewise permit the courts to take cognizance only upon the complaint made by the persons mentioned therein. Similarly, Section 199 taboos cognizance of offence of defamation except on the complaint made by some aggrieved person. Section 36AD of the Act applies the provisions of the CrPC except where it is otherwise provided in the Act in regard to the proceedings before the Special Court and the Special Court is deemed to be the Court of Sessions and the person conducting the prosecution is deemed to be the Public Prosecutor. No doubt, the proviso empowers the Central Government or the State Government to appoint for any case or class or group of cases, a Special Public Prosecutor. The Scheme of the Act must be borne in mind when Section 32, which 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 CrPC. 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 exercise other powers as may be necessary for carrying the purposes of Chapter IV or any Rules made thereunder. The elaborate procedure to be followed by the Inspectors is also provided by the law. [Paras 3137][974-C-G; 975-C-H; 976-A-E]

4.3 A perusal of Section 26 of the Drugs and Cosmetics Act, 1940 would indicate the role which is assigned to any person and recognized consumer association within the meaning of Section 32. Section 26 of the Drugs and Cosmetics Act, 1940 declares that on the application, any person or any recognized consumer association, in the prescribed manner and on payment of prescribed fee, is entitled to submit for test or analysis, to a Government Analyst any drug or cosmetic purchased by the person or the association and to receive a report of such test or analysis signed by the Government Analyst. There can be no gainsaying that armed with a report which reveals the commission of an offence under Chapter IV of the Act, they can invoke Section

32 and prosecute the offender. Section 32 of the Act undoubtedly provides for taking cognizance of the offence by the court only at the instance of the four categories mentioned therein. They are:

(a) Inspector under the Act; (b) Any Gazetted Officer empowered by the Central or the State Government; (c) Aggrieved person; and (d) Voluntary Association. It is clear that the Legislature has not included the Police Officer as a person who can move the court. Before the matter reaches the court, under Section 190 of the CrPC, ordinarily starting with the lodging of the first information report leading to the registration of the first information report, investigation is carried out culminating in a report under Section 173. The Police Report, in fact, is the Report submitted under Section 173 of the CrPC to the court. Under Section 190 of the CrPC, the court may take cognizance on the basis of the police report. Such a procedure is alien to Section 32 of the Act. In other words, it is not open to the Police Officer to submit a report under Section 173 of the CrPC 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. Under Section 193 of the CrPC, 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 CrPC. This is, undoubtedly, subject to the law providing expressly that that Court of Sessions may take cognizance of any offence as the Court of Original Jurisdiction. There is no provision in the Act which expressly authorises the special court which is the Court of Sessions to take cognizance of the offence under Chapter IV. This means that the provisions of Chapters XV and XVI of the CrPC must be followed in regard to even offences falling under Chapter IV of the Act. Starting with Section 200 of the Act dealing with taking of cognizance by a Magistrate on a complaint, including examination of the witnesses produced by the complainant, the dismissal of an unworthy complaint under Section 203 and following the procedure under Section 202 in the case of postponement of issue of process are all steps to be followed. It is true that when the complaint under Section 32 is filed either by the Inspector or by the Authorised Gazetted Officer being public servants under Section 200, the Magistrate is exempted from examining the complainant and witnesses.[Paras 38-40][977-AH; 978-A-B]

4.4 A perusal of Section 202 would show that in regard to an offence falling under Chapter IV of the Act, being exclusively triable, by a Court of Sessions, the proviso to sub-Section (1) to Section 202 prohibits the direction for investigation under Section

202. The proviso to sub-Section (2) of Section 202 contemplates that when an offence is exclusively triable by the Court of Sessions, and the Magistrate proceeds under Section 202 of the CrPC, he is duty bound to call upon the complainant to produce all its witnesses and examine them on oath. Thus, the effect of the two provisions in sub-Sections (1) and (2), respectively, is as follows: A Magistrate proceeding under Section 202 of the CrPC, is subjected to two conditions:

a. Unlike in an ordinary case, meaning thereby, an offence which is not exclusively triable by a Court of Sessions, in a case where it is an offence exclusively triable by a Court of Sessions, the inquiry can be 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. 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 CrPC, 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 documents to be made available to the accused as provided therein. This prepares the accused for the case he is likely to be called upon to meet in the Court of Sessions. As far as a complainant setting the criminal law in motion is concerned, what is contemplated is that by the mechanism of cognizance under Section 200 read with Section 202, culminating in the issuance of summons or warrant under Section 204, there is material before the Magistrate and the court is assured that the case is not frivolous and wholly meritless going by a prima facie view undoubtedly as contemplated in law at that stage regarding the commission of a cognizance offence. Apart from this, reassuring aspect, as in a prosecution launched under Police Report, the accused in a trial by a Court of Sessions to which Court a case would stand committed under Section 209, would also know beforehand the case he would have to meet having regard to the materials which weighed with the Magistrate and which is also made available to him under Section 208 of the Act. In such circumstances, the Court need not consider further the argument that a direction for investigation by the Magistrate under Section 202 would not be tabooed as the result of the investigation by the Police Officer pursuant to a direction would not amount to a report under Section 173. This is for the reason that being offences exclusively triable by the Court of Sessions, as noticed earlier, there is a bar against the Magistrate directing investigation under Section 202 by the Police Officer or otherwise. [Paras 41-43][978-D-H; 979-A-G]

4.5 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 CrPC or and under any other law for the time being in force on grant of bail. The special powers, however, of the High Court regarding the grant of bail under Section 439 of the CrPC, is preserved as found therein. [Para 45][980-E-F]

5. Chapter XII of the CrPC 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 CrPC can be noticed. Information in relation to a cognizable offence reaching the officer in charge of a police station which is ordinarily understood as first information statement concerning cognizable offences sets the ball rolling so far as the police officer, in charge of a police station is concerned. The next provision to notice in the Chapter is Section 156. It provides that any officer in charge of a police station may without the order from a Magistrate investigate any cognizable offence within which a court, having jurisdiction over a local area within the limits of such station, would have the power to enquire into or try under the provisions of Chapter XIII. In fact, Section 177 of the CrPC, which is the first Section in Chapter XIII dealing with jurisdiction of Criminal Courts Inquiries and Trial, proclaims that every offence shall ordinarily be enquired into and tried by a court within whose jurisdiction, the offence was committed. Thus, ordinarily, it is the Police Officer, within whose jurisdiction the cognizable offence is committed, would have the jurisdiction to investigate that offence. Section 178 onwards provide for the exceptions to Section 177. Sub-section (2) declares the proceedings of police officer in a case of cognizable offence shall not in any stage be called in question on the ground that the case was one which he was not empowered to investigate under the provision. Lastly, sub-section (3) provides that any Magistrate who is empowered under Section 190 may order such an investigation which the officer is to undertake under sub-section (1). Section 157 CrPC 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 of an offence. He may also have reason to suspect the commission of cognizable offence not on the basis of any information but otherwise. (ii) As far as information is concerned, it is clearly relatable to the information which has been provided to him within the meaning of Section 154. Cases where he acts on his own knowledge would be covered by the expression otherwise. (iii) The offences must be an offence which he is empowered under Section 156 to investigate. A police officer is empowered to investigate a cognizable offence without an order of the Magistrate. As far as non-cognizable offence is concerned, he cannot investigate such offence without the order of the Magistrate having power to try or commit the case for trial. (iv) However, a police officer who undertakes to investigate the matter is obliged to forthwith send a report of the same to the Magistrate empowered to take cognizance of an offence upon a police report. It is at once relevant to notice in the facts of this case that this indispensable element is not present. This is for the reason that under Section 32 of the Act, a Magistrate is not competent to take cognizance of the offences under Chapter IV of the Act upon a police report. Section

158 CrPC speaks about the manner of sending the report to the Magistrate under Section 157. It is a matter governed by a general or special order issued by the State Government. Quite clearly even Section 158 cannot apply in the case of a cognizable offence falling under Chapter IV of the Act for the reasons adverted to. Section 159 enables the Magistrate on receiving such report to direct investigation or if he thinks fit at once to proceed or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry or otherwise to dispose of the case in the manner provided in the Code. It is clear that the purpose of Section 157 is to hold the police officer accountable to keep informed the Magistrate. It acts as an assurance that the reports are not tampered, and that the rights of the accused are sought to be secured. The purport of Section 159 is also to enable the Magistrate to exercise control over the investigation. All these aspects are irrelevant and out of bounds both for the police officer and the Magistrate in respect of an offence falling under chapter IV of the Act. 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 CrPC. Reverting back to Section 157, the Court has 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 CrPC 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 the Magistrate being confined to cases where officer intends to send the police report which has been defined as the report under Section 173 of the CrPC. In regard to taking cognizance under Section 32 of the Act, it is unambiguously clear that there is no place for a police report within the meaning of Section 173 of the CrPC in regard to offences falling under Chapter IV of the Act. Section 157 contemplates that the Officer proceeding either by himself or through his subordinate Officer to investigate the facts and circumstances, and if necessary, to take measures for the discovery and the arrest of the offender. But on reading the provisions, the Court gathers the unmistakable impression that the law giver has empowered the police officer to investigate in the case of a cognizable offence without any order of the Magistrate where he ultimately in an appropriate case wishes the Court to take cognizance based on the material he gathers and transmits a police report. If this impression of the Court is not flawed, an inevitable corollary would be that in the case of offence under Chapter IV of the Act though it be cognizable, a police officer would not have the power to investigate the matter. Section 169 speaks about the duty to release a person in custody if it is found on investigation that there is no sufficient evidence or reasonable ground of suspicion to justify forwarding such person to the Magistrate. Section 170 deals with cases where an officer conducting investigation finds sufficient evidence or reasonable ground and the accused is forwarded to the Magistrate empowered to take cognizance of the offence upon a report. Again, the cardinal requirement for the officer to invoke Section 170 is availability of power with the Magistrate to take cognizance upon a police report. This key requirement is absent in the case of an offence falling under Chapter IV of the Act. The link therefore snaps. Section 173 speaks about the report on completion of the investigation for the police officer. Section 173 (5) is to be read with Section 170, that is to say, in a case where there is sufficient material for prosecuting the concerned person, the documents and the statements of witnesses are to be forwarded to the Magistrate as provided therein. Section 190 of the CrPC has already been noted. Sections 154, 156, 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 CrPC. However, what is applicable in respect of offences under Chapter IV of the Act is not 190 of the CrPC 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. [Paras 62-64][993-E-H; 994-A-C; 995A-H; 996-A-H; 997-A-D]

6. IMPACT OF LALITA KUMARI V. GOVERNMENT OF

UTTAR PRADESH AND OTHERS

This Court was not, in the said case, considering a case under the Act or cases similar to those under the Act. Having regard to the discussion made and on a conspectus of the provisions of the CrPC and Section 32 of the Act, 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. [Para 66][998-A-B] Lalita Kumari v. Government Of Uttar Pradesh and Others (2014) 2 SCC 1 : [2013] 14 SCR 713 – held inapplicable.

7. DUTY OF POLICE OFFICER UNDER SECTION 154

OF THE CRPC IRRESPECTIVE OF IMPACT OF