UNION OF INDIA versus ASHOK KUMAR SHARMA AND OTHERS

95. Police cannot arrest as there can be no investigation by the Police. Section 36AC of the Act stipulates stringent conditions for granting Bail. It can be made applicable when the accused is remanded to the custody by the Magistrate while committing the case to the Sessions Court.

96. As regards Section 41 of the CrPC, the learned Amicus Curiae would point out that empowering the Police to arrest in respect of UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS [K. M. JOSEPH, J.] cognizable offence, under the said provisions, being a general provision, may not be countenanced as the general provisions are overridden by the provisions of the Act. Again, arrest under Section 41 of the CrPC must be followed by the registration of the case under Section 154 of the CrPC, which is not possible in view of Section 32 of the Act. The learned Amicus Curiae also voices the apprehension that if power to arrest is conferred on the Police Officer, under Section 41, then, in every special enactment, such as the Food Adulteration Act, Income-Tax Act, Food Safety and Standards Act, Customs Act, etc., the Police will arrest under Section 41 of the CrPC, register a case and file a Final Report. The special provisions of those Acts, restricting cognizance only on the basis of a complaint, would be rendered nugatory.

97. The learned Amicus Curiae would also submit that though there is no specific provision empowering the Drugs Inspector to arrest, Section 22(1)(d) of the Act may be interpreted and it be held that the Inspector has power to arrest. In this regard, reliance is placed on Deepak Mahajan (supra). ANALYSIS

98. The 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 mentioned in Section 32 of the Act. A Police Officer, as such, does not figure as one of the persons who may prefer a report under Section 173(2) of the CrPC, on which, cognizance could be taken by the Special Court. Undoubtedly, as we have already clarified in respect of an offence under Chapter IV, if the acts or omission also constitutes an offence under any other law, under Section 32(3) of the Act, it may be open to the Police Officer, if he is otherwise empowered under the said law, to prosecute the person for the same offence, to act as such.

100. Consequently, the registration of an FIR, which under the scheme of the CrPC, sets the ball rolling, empowering the Police Officer to investigate under Section 157 of the CrPC, and gather material and finally file a Report, would all appear to us to be inapplicable to an offence under Chapter IV of the Act.

101. The conundrum, however, is posed by the aspect relating to arrest. Undoubtedly, there is no express power on the Inspector to arrest under the Act. The argument of the learned Additional Solicitor General, Ms. Pinky Anand that the Drugs Inspector could not be a Police Officer as he is not a person who can file a Report under Section 173 of the CrPC and, therefore, he cannot arrest, does not appeal to us. The decisions relied upon by the learned Counsel, referred to by us in paragraph-91 hereinbefore, only declare that the Customs Officer under the Customs Act and the other officers in the enactments, which we have referred to, are not Police Officers in the context of Section 25 of the Indian Evidence Act, 1872 (hereinafter referred to as ‘the Evidence Act’, for short). Section 25 of the Evidence Act renders inadmissible a confession made to a Police Officer. The question here is not whether the Drugs Inspector is a Police Officer and the question here is whether he is empowered to carry out arrest of a person under the Act. Still further, the question to be answered is, whether a Police officer under the CrPC is deprived of his power, under the CrPC, to arrest. These are the questions to be answered by us.

102. The Court must start with the presumption that Parliament, which is author of the CrPC and also the Act in question, was aware of the provisions of the CrPC, 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, UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS [K. M. JOSEPH, J.] 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 Inspector. The very qualifications, which are provided in the Rules, as indispensable for being appointed as an Inspector, represents a carefully chosen value judgment by the Legislature to assign the implementation of the Act through the competent hands of qualified persons. The Act is enacted to achieve the highest public interest in as much as what is at stake is the health of the members of the public, which again is recognized as one of the aspects covered by the Fundamental Right protected under Article 21 of the Constitution of India. Keeping the Police Officer out from the categories of persons, who could prosecute offenders for offences under Chapter IV of the Act, is also a carefully thought out ideal. THE DECISION OF THIS COURT IN DIRECTORATE OF ENFORCEMENT V. DEEPAK MAHAJAN AND ANOTHER25

103. In Deepak Mahajan (supra), the question arose in the context of provisions of Section 35 of the Foreign Exchange Regulation Act, 1973 (FERA) and Section 104 of the Customs Act, 1962, which expressly conferred power of arrest on the Officers under the Acts. The question which squarely arose was whether upon arrest being effected under Section 35 of the FERA and Section 104 of the Customs Act, a remand could be ordered under Section 167(2) of the CrPC. In the course of discussion, the Court proceeded to hold that the CrPC gives power of arrest not only to the Police Officer, but to a Magistrate and also under certain circumstances or given situations to private persons. It went on to hold that in every arrest there is custody but not vice-versa. It further held as follows: “54. The above deliberation leads to a derivation that to invoke Section 167(1), it is not an indispensable pre-requisite condition 25 (1994) 3 SCC 440 that in all circumstances, the arrest should have been effected only by a police officer and none else and that there must necessarily be records of entries of a case diary. Therefore, it necessarily follows that a mere production of an arrestee before a competent Magistrate by an authorised officer or an officer empowered to arrest (notwithstanding the fact that he is not a police officer in its stricto sensu) on a reasonable belief that the arrestee “has been guilty of an offence punishable” under the provisions of the special Act is sufficient for the Magistrate to take that person into his custody 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 the light of Explanation to Section 273 of the Code includes ‘any person arrested’. The inevitable consequence that follows is that “any person is arrested” occurring in the first limb of Section 167(1) of the Code takes within its ambit “every person arrested” under Section 35 of FERA or Section 104 of the Customs Act also as the case may be and the ‘person arrested’ can be detained by the Magistrate in exercise of his power under Section 167(2) of the Code. In other words, the ‘person arrested’ under FERA or Customs Act is assimilated with the characteristics of an ‘accused’ within the range of Section 167(1) and as such UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS [K. M. JOSEPH, J.] liable to be detained under Section 167(2) by a Magistrate when produced before him.”

105. The Court went on to consider the impact of other laws in regard to the scope of the expression “Police Officer”. It held as follows: “111. Neither the Police Act, 1861 (Act V of 1861) nor any other statute defines the expression ‘police officer’. Shortly stated, the main duties of the police are the prevention, detention and investigation of crimes. As the powers and duties of the State have increased and are increasing manifold, various Acts dealing with Customs, Excise, Forest, Taxes etc. have come to be passed and consequently the prevention, detention and investigation of offences as prescribed under those Acts have come to be entrusted to officers with different nomenclatures appropriate to the subject with reference to which they function. However, as stated supra, though the powers of customs officers and enforcement officers are not identical to those of police officers qua the investigation under Chapter XII of the Code yet the officers under the FERA and Customs Act are vested with certain powers similar to the powers of police officers.”

106. Section 167(1) of the CrPC contemplates forwarding the diary which was interpreted to be not the general diary and the special diary under Section 167(2) of the CrPC. In regard to the enactments in question, this Court held as follows: “113. Though an authorised officer of Enforcement or Customs is not undertaking an investigation as contemplated under Chapter XII of the Code, yet those officers are enjoying some analogous powers such as arrest, seizures, interrogation etc. Besides, a statutory 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: Sl. No. Name of the Act Power to search premises Power to search suspected persons, entering or leaving India Power to search persons 1. Foreign Exchange Regulation Act, Sec. 37 Sec. 34 Sec. 34 2. The Customs Act Sec. 105 Sec. 100 Sec. 101 3. The Gold (Control) Act (now repealed) Sec. 58 Sec. 60 4. The Prevention of Food Adulteration Act. Sec. 10(2) S. 6 to be r/w S. 18 or the Sea Customs Act. 5. The Railway Property (Unlawful Possession) Act Sec. 10 and Sec. 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 Sec. 36 Sec. 38 Sec. 35 Sec. 39 Sec. 40 Sec. 106 Sec. 110 Sec. 104 Sec. 107 Sec. 108 Sec. 61 Sec. 66 Sec. 68 Sec. 64 Sec. 63 Sec. 10 Sec. 10(B) Sec. 6 Sec. 9

108. The Court further held as follows: “116. It should not be lost sight of the fact that a police officer making an investigation of an offence representing the State files a report under Section 173 of the Code and becomes the complainant whereas the prosecuting agency under the special Acts files a complaint as a complainant i.e. under Section 61(ii) in the case of FERA and under Section 137 of the Customs Act. To say differently, the police officer after consummation of the investigation files a report under Section 173 of the Code upon which the Magistrate may take cognizance of any offence disclosed in the report under Section 190(1)(b) of the Code whereas the empowered or authorised officer of the special Acts UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS [K. M. JOSEPH, J.] has to file only a complaint of facts constituting any offence under the provisions of the Act on the receipt of which the Magistrate may take cognizance of the said offence under Section 190(1)(a) of the Code. After taking cognizance of the offence either upon a police report or upon receiving a complaint of facts, the Magistrate has to proceed with the case as per the procedure prescribed under the Code or under the special procedure, if any, prescribed under the special Acts. Therefore, the word ‘investigation’ cannot be limited only to police investigation but on the other hand, the said word is with wider connotation and flexible so as to include the investigation carried on by any agency whether he be a police officer or empowered or authorised officer or a person not being a police officer under the direction of a Magistrate to make an investigation vested with the power of investigation.” (Emphasis supplied)

109. In fact, as laid down in Deepak Mahajan (supra), the power of arrest can be conferred on persons other than a Police Officer. We are, for the moment, excluding the position under the CrPC that even a private person can arrest as provided in Section 43 of the CrPC. The Foreign Exchange Regulation Act, 1973 (hence repealed); the Customs Act, 1962; the Gold (Control) Act, 1968 (repealed); 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 CrPC, 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 CrPC, is duty-bound to carry the matter to its logical conclusion, viz., to investigate the matter as provided in the CrPC, and finally, file a Report under Section 173(2) of the CrPC, to persuade the Court to take cognizance in an appropriate case, all of which powers are not available to a Police Officer in regard to offences under Chapter IV of the Act, the interpretation that avoids such a futile exercise, which also is unauthorized and illegal in law, should be adopted.

110. We do agree with the learned Amicus Curie that the Police Officer, for instance, cannot be approached by any person with a complaint that a cognizable offence under Chapter IV of the Act has been committed and he is not bound to register the FIR in terms of the law which is being held down by this court in Lalita Kumari (supra). This is for the reason that if he were to register an FIR, then, he would have to pass on to the stage of Section 157 of the CrPC and, furthermore, carry out investigation, as understood in law, for which neither is he deemed qualified or empowered by the Law Giver nor is he entitled to file a Report under Section 173 of the CrPC. POWER OF ARREST UNDER THE ACT

111. We are faced with a situation which projects a discord between two Statutes, viz., the CrPC and the Act, and the only silver- lining appearing on the horizon, is the ambit of the power under Section 22(1)(d) of the Act. We may recapitulate the said provision, at this juncture. It reads as follows: “22. Powers of Inspectors. – (1) Subject to the provisions of section 23 and of any rules made by the Central Government in this behalf, an Inspector may, within the local limits of the area for which he is appointed,- xxx xxx xxx xxx (d) Exercise such other powers as may be necessary for carrying out the purposes of this Chapter or any rules made there under.” Apart from the same, there is no express power of arrest under the Act on the Drugs Inspector. SOME ENACTMENTS CONTAINING PROVISIONS SIMILAR TO SECTION 22(1)(d) OF THE ACT

112. We may notice that the Seeds Act, 1966 (Section 14(1)(e), the Insecticides Act, 1968 (Section 21(f)), the Kerala Fish Seed Act, 2014 (Section 19(1)(e), Uttarakhand Ground Water (Regulation and Control of Development and Management) Act, 2016 [Section 13(1)(j)], contain provisions similar to what is contained in Section 22(1)(d) of the Act.

113. The Weekly Holidays Act, 1942 [Section 8(1)(c)], the Jammu and Kashmir Factories Act, 1999 [Section 9(1)(c)], contained provisions UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS [K. M. JOSEPH, J.] 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 3[Principal Commissioner of Customs or Commissioner of Customs] has reason to believe that any person in India or within the Indian customs waters has committed an offence punishable under section 132 or section 133 or section 135 or section 135A or section 136, 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 an officer of customs 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 4 Code of Criminal Procedure, 1898 (5 of 1898). (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any offence relating to — (a) prohibited goods; or (b) evasion or attempted evasion of duty exceeding fifty lakh rupees, shall be cognizable. (5) Save as otherwise provided in sub-section (4), all other offences under the Act shall be non-cognizable. (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974) an offence punishable under section 135 relating to — (a) evasion or attempted evasion of duty exceeding fifty lakh rupees; or (b) prohibited goods notified under section 11 which are also notified under sub-clause (C) of clause (i) of sub-section (1) of section 135; or (c) import or export of any goods which have not been declared in accordance with the provisions of this Act and the market price of which exceeds one crore rupees; or (d) fraudulently availing of or attempt to avail of drawback or any exemption from duty provided under this Act, if the amount of drawback or exemption from duty exceeds fifty lakh rupees, shall be non-bailable. (7) Save as otherwise provided in sub-section (6), all other offences under this Act shall be bailable.26"

115. Section 35 of the The Foreign Exchange Regulation Act (FERA), 1973 read as follows (FERA came to be repealed by The Foreign Exchange Management Act (FEMA), 1999]: “35. Power to arrest.—(1) If any officer of Enforcement authorised in this behalf by the Central Government, by general 26 Prior to 13.07.2006, when the present provision came to be substituted by Act 29 of 2006, the power to arrest was confined in relation to person about whom reason to believe was entertained that he had committed an offence under Section 135. As can be seen the power of arrest after 13.07.2006, has become more wide. Further, it is to be noticed, that Sections 104(4) was substituted by Act 23 of 2012 w.e.f. 28.05.2012. Sub-Section (4) before substitution read as follows: “4.[Notwithstanding anything contained in Code of Criminal Procedure, 1898 (5 of 1898), an offence under this Act, shall not be cognizable. The change brought about by sub-Section (4) as substituted, is that the offences mentioned in sub-Section (4), have been declared to be cognizable. However, under Section 104(5), all other offences under the Act have been declared to be non-cognizable. UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS [K. M. JOSEPH, J.] or special order, has reason to believe that any person in India or within the Indian customs waters 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 journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (2) Any officer who has arrested any person under this section 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 Code of Criminal Procedure, 1898 (5 of 1898).” (Emphasis supplied)

117. Section 10(8) of the The Prevention of Food Adulteration Act, 1954 (37 Of 1954), read as follows: “10(8) Any food inspector may exercise the powers of a police officer under section 42 of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of ascertaining the true name and residence of the person from whom a sample is taken or an article of food is seized.” It may be noticed that Section 42 of the Cr.P.C. confers power of arrest on a Police Officer to arrest even in regard to a non-cognizable offence in the circumstances mentioned therein without a warrant.

118. Finally, Section 6 of The Railway Property (Unlawful Possession) Act, 1966, read as follows: “6. Power to arrest without warrant.—Any superior officer or member of the Force may, without an order from a Magistrate and without a warrant, arrest any person who has been concerned in an offence punishable under this Act or against whom a reasonable suspicion exists of his having been so concerned.” Here, it is relevant to notice that the persons empowered are members of the force, which is defined as being members of the force and the word ‘force’ is defined as the Railway protection force constituted under the Railway Protection Force Act, 1957. It is an armed force.

119. In the Foreign Exchange Management Act, 1999, there is no express power of arrest, as such conferred. Instead, it is relevant to notice Section 37 of the said enactment: “37. Power of search, seizure, etc.— (1) The Director of Enforcement and other officers of Enforcement, not below the rank of an Assistant Director, shall take up for investigation the contravention referred to in section 13. —(1) The Director of Enforcement and other officers of Enforcement, not below the rank of an Assistant Director, shall take up for investigation the contravention referred to in section 13.” (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 UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS [K. M. JOSEPH, J.] 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 CrPC, there is no power with the Police Officer to arrest in the case of a non-cognizable offence except upon a Warrant or Order of a Magistrate.

122. In this regard, it may also be apposite to refer to the provisions of the Central Excise Act, 1944. Section 13 confers the power to arrest. It reads as follows: “13. Power to arrest:- Any Central Excise Officer not below the rank of Inspector of Central Excise may, with the prior approval of the Principal Commissioner of Central Excise or Commissioner of Central Excise, arrest any person whom he has reason to believe to be liable to punishment under this Act or the rules made thereunder.”

123. However, Section 9A, as it stood prior to it being amended from the year 2004 onwards, declared that the offences under Section 9 were to be deemed to be non-cognizable under the provisions of the Code of Criminal Procedure. In Sunil Gupta v. Union of India27, the Division Bench of the Punjab and Haryana High Court had to answer the question as to whether the power of arrest, under Section 13 of the Act, could be exercised without a warrant, in view of the fact that under Section 9A, the offence was declared as non-cognizable. The Court took the view that Section 13 embodied a substantive power. It held, inter alia, as follows: “21. In our view, Section 13 embodies a substantive power. It confers the power to arrest. The procedural safeguards have been protected by Section 18. This provision merely regulates the exercise of power under Section 13. It only provides that the 27 2000(118) ELT 8 P&H searches and arrests under the Central Excise Act ”shall be carried out in accordance with the provisions of the Code of Criminal Procedure …..” In other words, an officer of the Central Excise shall make the arrest in the manner laid down in Section 46 of the Code of Criminal Procedure. He “shall actually touch or confine the body of the person to be arrested…..” In case of resistance, the officer of the Central Excise “may use all means necessary to effect the arrest.” The persons arrested “shall not be subjected to more restraint than is necessary to prevent his escape.” Similarly, a search shall be carried out in accordance with the procedure laid down in Section 100. If the person of a lady has to be searched, it shall be done “by another woman with strict regard to decency.” Two or more independent and respectable 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 Gujarat28, 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 Punjab and Haryana High Court, viz, a Central Excise Officer, (satisfying the conditions laid down under Section 13) is not debarred from arresting a person without a warrant when he has reason to believe that the person is liable to punishment under the Act or the rules 28 2010(260) ELT 526 (Gujarat) UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS [K. M. JOSEPH, J.] made thereunder. Section 13 is not curtailed by Section 18 and in fact Section 18 is merely procedural.”

126. We must, however, notice the judgment of this Court reported in Om Parkash and Another v. Union of India and Another29, a Judgment, which dealt with the Central Excise Act, 1944 and also the Customs Act, 1962. The question, however, which arose was, whether under the said enactments, as the offences were non-cognizable, were they bailable as well? Section 9A, as it was considered by this Court, read as follows: “9A. Certain offences to be non-cognizable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), offences under section 9 shall be deemed to be non- cognizable within the meaning of that Code. (2) Any offence under this Chapter may, either before or after the institution of prosecution, be compounded by the Chief Commissioner of Central Excise on payment, by the person accused of the offence to the Central Government, of such compounding amount and in such manner of compounding, as may be prescribed. Provided that nothing contained in this sub-section shall apply to – (a) a person who has been allowed to compound once in respect of any of the offences under the provisions of clause (a), (b), (bb), (bbb), (bbbb) or (c) of sub-section (1) of Section 9; (b) a person who has been accused of committing an offence under this Act which is also an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); (c) a person who has been allowed to compound once in respect of any offence under this Chapter for goods of value exceeding rupees one crore; (d) a person who has been convicted by the court under this Act on or after the 30th day of December, 2005.”

127. The Court did make reference to both Sunil Gupta (supra) and Bhavin Impex Pvt. Ltd. (supra). This Court went on to find, on an examination of the provisions, that being non-cognizable offences under the Central Excise Act, and taking note of the fact that as a general rule, 29 (2011)14 SCC 1 though, with exceptions under the First Schedule to the CrPC, 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 provision is contained in Section 41 of the Code which specifies when a police officer may arrest without order from a Magistrate or without warrant.” (Emphasis supplied)

128. The Court applied the same principles in regard to the cases which it decided under the Customs Act. We may notice that Section 18 of the Central Excise Act, 1944 provides for the manner of making an arrest. It reads as follows: “18. Searches and arrests how to be made.- All searches made under this Act or any rules made thereunder and all arrests made under this Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898(5 of 1898), relating respectively to searches and arrests made under that Code.”

129. Equally of interest, are the provisions contained in Sections 19, 20 and 21: “19. Disposal of persons arrested.- Every person arrested under this Act shall be forwarded without delay to the nearest Central Excise Officer empowered to send persons so arrested to a Magistrate, or, if there is no such Central Excise Officer within a UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS [K. M. JOSEPH, J.] reasonable distance, to the officer in charge of the nearest police station. 20. Procedure to be followed by officer in charge of police station.- The officer in charge of a police station to whom any person is forwarded under Section 19 shall either admit him to bail to appear before the Magistrate having jurisdiction, or in default of bail forward him in custody to such Magistrate. 21. Inquiry how to be made by Central Excise Officers against arrested persons forwarded to them under Section 19. – (1) When any person is forwarded under Section 19 to a Central Excise Officer empowered to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to inquire into the charge against him. (2) For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the officer in charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898), when investigating a cognizable case: Provided that- (a) If the Central Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate; (b) If it appears to the Central 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 stepped in with amendments. Section 9A came to be amended and it reads as follows after the amendment: “Section 9A. Certain offences to be non-cognizable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), offences under section 9, except the offences referred to in sub-section (1A), shall be non-cognizable within the meaning of that Code. (2) Any offence under this Chapter may, either before or after the institution of prosecution, be compounded by the Principal Chief Commissioner of Central Excise or Chief Commissioner of Central Excise on payment, by the person accused of the offence to the Central Government, of such compounding amount and in such manner of compounding as may be prescribed: Provided that nothing contained in this sub -section shall apply to (a) a person who has been allowed to compound once in respect of any of the offences under the provisions of clause (a),(b),(bb),(bbb),(bbbb) or (c) of sub -section (1) of section 9; (b) a person who has been accused of committing an offence under this Act which is also an offence under the Narcotic Drugs and Psychotropic Substance Act,1985 (61 of 1985); (c) a person who has been allowed to compound once in respect of any of the offence under this Chapter for goods of value exceeding rupees one crore; (d) a person who has been convicted by the court under this Act on or after the 30th day of December, 2005.” (Emphasis supplied) UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS [K. M. JOSEPH, J.] 131. The result would appear to be that acknowledging the effect of making the offences being non-cognizable to be to limit the power of the authorities under the Act for effecting arrest under the Act, to require a warrant, certain offences were declared to be cognizable as noticed in Section 9A, as amended after the Judgment in Om Parkash (supra). The resultant position after the amendment is, it became open to the Officers to effect the arrest in regard to a cognizable offence without obtaining a warrant. 132. In regard to the Customs Act, 1962 in Section 104, under the present avatar, two changes have been brought about. Firstly, the power to arrest is available in respect of offences under Sections 132, 133, 135, 135A and 136. The offences are divided into two categories. Under Section 104(4), the offences which fall within its ambit, are treated as cognizable. The other offences are treated as non-cognizable under 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 question would arise whether there exists the power of arrest with the Drugs Inspector. We will, on the one hand, array possible objections to the conferment of such powers. The power to arrest is a drastic power. It involves encroachment on personal liberty. The Drugs Inspector is not a Police Officer under the CrPC. The Legislature was aware of the power of the Police Officer to arrest when he embarks on investigation of a cognizable case, as is clear from Section 157 of the CrPC. There is another indication in the Act which may reveal the mind of the Legislature that the power of arrest was not intended to be conferred on the Drugs Inspector. Section 34AA, reads as follows: “34AA.- Penalty for vexatious search or seizure.—Any Inspector exercising powers under this Act or the rules made thereunder, who,— (a) without reasonable ground of suspicion searches any place, vehicle, vessel or other conveyance; or (b) vexatiously and unnecessarily searches any person; or (c) vexatiously and unnecessarily seizes any drug or cosmetic, or any substance or article, or any record, register, document or other material object; or (d) 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, shall be punishable with fine which may extend to one thousand rupees.” There is no reference to arrest forming the subject matter of penalty. 135. In contrast, we must notice Section 22 of the Central Excise Act, 1944, reads as follows: “22. Vexatious search, seizure, etc., by Central Excise Officer.— Any Central Excise or other officer exercising powers under this Act or under the rules made thereunder who— (a) without reasonable ground of suspicion searches or causes to be searched any house, boat or place; (b) vexatiously and unnecessarily detains, searches or arrests any person; (c) vexatiously and unnecessarily seizes the movable property of any person, on pretence of seizing or searching for any article liable to confiscation under this Act; (d) commits, as such officer, any other act to the injury of any person, without having reason to believe that such act is re-quired for the execution of his duty, shall, for every such offence, be UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS [K. M. JOSEPH, J.] punishable with fine which may extend to two thousand rupees. Any person wilfully 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 of inspection, taking samples of any drug or cosmetic, searching any person, searching any place, searching any vehicle, examining records, registers, documents and other material objects and seizing the same, requiring any person to produce any record, register or other document. These are powers which are expressly conferred on the Inspector. Though, a complaint could be filed by other categories of complainants in Section 32 of the Act, the Inspector is pivot around which the Act moves. Rule 51(4) makes it a duty on the part of the Drugs Inspector to investigate any complaint in writing which may be made to him. It is also his duty under Rule 51(5) to institute prosecution in respect of breaches of the Act and the Rules thereunder. He is also duty-bound under Rule 51(7) to make inquiries and inspections as may be necessary to detect sale of drugs in contravention of the Act. Under Rule 52, in regard to manufacture of drugs, it is again the duty to institute prosecution for breaches besides making inspections of all premises. This is having regard to both his qualifications and also the powers conferred on him. Section 23 of the Act, undoubtedly, is the procedure to be followed by the Inspector. We are, therefore, to ascertain the meaning of the expression “other powers”, which are essential for carrying out the object of Chapter IV and the Rules made thereunder. The Legislature has not given any hint, intending to limit the scope of the residuary powers. No doubt, the Act is a pre- Independence Act. 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. 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 CrPC, inter alia. Now, the Police Officer acting under the CrPC even proceeding for a moment on the basis that it is sufficient that a mere memorandum of arrest as required under the CrPC is prepared and further there is compliance with other provisions of the CrPC also, would it suffice is the question that would arise in the following manner? We have noted from the provisions of the Act and the Rules that it is the Drugs Inspector who is empowered and duty bound to investigate the complaint about violations of acts and rules. He is the person charged with a duty of prosecuting the offenders. If the police officer is merely to be granted a power of arrest and without having any power of investigation then how would it be possible for the police officer to make UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS [K. M. JOSEPH, J.] any investigation under the act and if no investigation is possible, how would the Police Officer be in a position to be of any assistance to the Public Prosecutor and, therefore, to the Court in the disposal of an application for bail? In other words, it would be based on the records of investigation and material collected by the investigating officer that a Court in a case would decide as to whether bail is to be granted or not. How would the police officer seek a remand for carrying out investigation which he cannot do? If the Act and the Rules do not contemplate investigation by a Police Officer, then, conferring the power of arrest on the Police Officer, would, in fact, frustrate the working of the Act. On the other hand, if it is the Drugs Inspector who can arrest, the following consequences would follow: a. He has the requisite technical qualifications to properly investigate and prosecute the offender. b. He would be able to make adequate entries in whatever document he has to maintain as a part of investigation and it would facilitate a proper and fair consideration of an application for bail within the meaning of Section 36AC of the Act and also facilitate a request for remand under Section 167 of the Cr.P.C. 139. Declaring the power to arrest with the Inspector, is not to be understood as proclaiming that the Inspector is bound to arrest any person. The provisions of the CrPC, relating to arrest, would necessarily have to be followed by the Drugs Inspector. In fact, he is obliged to bear in mind the law, as declared by this Court in D.K. Basu (supra), and the peril of defying the same, would be to invite consequences, inter alia, as are provided therein. As far as the arrest, not being mentioned in Section 34AA, as forming a ground for visiting the delinquent Officer with penalty, 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 made, a FIR is to be registered, and, when the registering of the FIR carries with it an unattainable object of preferring a Final Report under Section 173 of the CrPC, as far as the Police Officer is concerned. We make it clear that if a Police Officer is approached with regard to a complaint regarding commission of an offence falling under Chapter IV of the Act, he is not to register an FIR unless it be that a cognizable offence, other than an offence falling under Chapter IV of the Act, is also made out. He must makeover the complaint to the competent Drug Inspector so that action in according with law is immediately taken where only offences under Chapter IV are made out. 142. As far as the arrest contemplated under Section 41 of the CrPC is concerned, in case a cognizable offence, falling under Chapter IV of the Act, is committed, either in the presence of the Drugs Inspector, or in respect of which offence, a Police Officer would have power to arrest, as provided therein, viz., covered by the situations contemplated under Section 41(ba), the Drugs Inspector would be entitled to effect the arrest. We are arriving at this conclusion on the basis that since the procedure under the CrPC is to be read as applicable, except to the extent that a different procedure is to be provided under the Act, and since there is no procedure or power otherwise provided in the Act in regard to arrest, the powers and procedure available to a Police Officer, with the limitations on the said power, as laid down in D.K. Basu (supra), as also as contained in the CrPC, would be applicable. 143. By way of following Deepak Mahajan (supra), we hold that the Drugs Inspector, under the Act, is invested with certain powers similar to a Police Officer. Still further, we would hold that the word “investigation” cannot be limited only to a Police investigation, as has been noted in Deepak Mahajan (supra). Thirdly, we find that the power to arrest a person must indeed flow from the provisions of a Statute. The statutory provision under the Act is Section 22(1)(d). The arrested UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS [K. M. JOSEPH, J.] person, under the Act, would be an accused person to be detained under Section 167(2) of the CrPC. No doubt, the Police Officer is bound to provide assistance to the Inspector in case of need to effectuate 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 CrPC. 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 that the Central Government is conferred with powers to give directions to the State Government for the purpose of carrying into execution, in the State, any of the provisions of the Act or any Rule or Order made thereunder. It is for the Central Government to consider the question whether it can, under the said provision, issue directions in regard to the power of arrest, which we have found, subject to what we have stated in this Judgment. 146. Further, Section 58 of the CrPC provides that the Officers In-charge of Police Stations are to report cases of all persons arrested without warrant as provided therein. We make it clear that the Drugs Inspector must, apart from other relevant provisions of the CrPC, comply with the requirement of reporting. In view of the need to safeguard the interest of persons, who may be proceeded against by the Drugs Inspector, we also hold and direct that the Drugs Inspector will immediately, after arrest, make a report of the arrest to his superior Officer. 147. It has been brought to our notice that FIRs have been filed in regard to offences under Chapter IV of the Act. In the view we have taken, no further investigation can be done by the Police Officer. However, it is in the interest of justice that the FIRs are made over by the Police Officers to the concerned Drugs Inspector at the earliest. We are persuaded to issue such directions in the exercise of our powers under Article 142 of the Constitution of India. 148. 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. 149. Before we proceed to the operative portion of our Judgment, we must express the hope that the vexed issues which we have resolved through this Judgment, in regard to the power of arrest, may engage the competent Legislative Body. THE CONCLUSIONS/DIRECTIONS 150. Thus, we may cull out our conclusions/directions as follows: 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. 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 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 UNION OF INDIA v. ASHOK KUMAR SHARMA AND OTHERS [K. M. JOSEPH, J.] offences under Chapter IV of the Act and he cannot investigate such offences under the provisions of the CrPC. 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 (supra) and to follow the provisions of CrPC. 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. VI. 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. VII. 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. 151. In view of our conclusions/directions and subject to the same, we would, on the facts, uphold the impugned Judgment and dismiss the Appeal. We record our appreciation for the enlightening submissions of the learned Amicus Curiae Shri S. Nagamuthu. Divya Pandey Appeal dismissed.