It is seen that in many cases the police has registered FIR in drug cases and to make it more perfect and to ensure that it should not fail prima facie test of police case it is buy natural that police adds section 420 and several other section of IPC in almost all cases. What is the true position of law? We can formulate basic questions for the same. First question is that whether police has any authority in drug cases? If yes in what type of cases and how? In which cases police can not have any authority?
The question is answer in itself. Yes after the amendment of 2010 now separate section 36AC has been added to the Drugs and Cosmetics Act, 1940 (in short D&C Act). Section 36AC provides some offences to be considered as cognisable. Meaning thereby that the police can arrest a person without warrant.
If the provision of this section is taken directly, the meaning of above is that in the drug cases the FIR can be registered by the police. If the FIR is registered by the police than after investigation the charge sheet has to be filed by Police. When such charge sheet is filed before the court, said court has to take cognisance. The catch is here. Now point of consideration is that section 32 of the Act provides that “No prosecution under this Chapter shall be instituted except by an Inspector or by the person aggrieved or by a recognised consumer association whether such person is a member of that association or not.” The meaning of this section is that the complaint can only be filed by this three category of person and not by anybody else. The police is not with in that category and hence police cannot institute prosecution.
Now let us see if Drug Inspector (in short DI) will be in position to complaint the police? Than the second question arise if the DI will file the complaint with the police than how the prosecution will proceed? Than the investigation will be done by the police and not by the DI. Ultimately again same conflict will arise with the section 32of the D&C Act.
It appears that provision of section 36 AC run directly contrary to the provision section 32 of the D&C Act, 1940. As stated above section 32 clearly laid down that no prosecution shall be instituted except by the Inspector, aggrieved person or consumer association only. If the provisions of section 36AC covers in its ambit, the offences relating to import of adulterated and/or spurious drugs, contravention of provisions of D&C Act, person convicted of subsequent offence, abstracting the drug inspector in performance of his duty, penalty for manufacturing or sale of drug in contravention of Chapter IV section 27, Penalty for non-disclosure of name, penalty for non-keeping of documents etc.
If the offences under above categories are committed then such offences are considered to be cognizable u/s 36AC of D&C Act and in such cases, the police will have the power to investigate such offences. Ultimately it will lead to filing of charge sheet before the Criminal Court. The catch here is that while section 32 does not recognize any other way of prosecution, the charge sheet so filed by the police u/s 36 cannot be accepted by the Court. Thus it can be concluded that both the sections 32 and 36 AC are contradictory to each other on the face of it.
On the other hand prior to amendment and insertion of section 36 AC it was categorically held that the police has no power to register F.I.R. The reason that was advanced for the same is that the D&C Act is a special legislation to deal with the drug related issues. All the offences arising out of the violation of Chapter IV are governed by section 27 and 32 of the said Act. Since only Drug Inspector and other two category of person can file complain, it is very much specific that there cannot be any other method of prosecution. The reference can be made to the recent judgment of Hon’ble Patna High Court in Manju Kumar Vs. State of Bihar that the police has no power to register F.I.R. and such registration will violates the section 32 of the Act. The Hon’ble Court also referred to the decision of Hindustan Lever Ltd Vs. State of Bihar, wherein it was held that the prosecution can be instituted by filing a complaint by the Drug Inspector and the Police has no jurisdiction to register a F.I.R and investigate in to the offence under the Act. The similar view was also taken in another case by Hon’ble Calcutta High Court in Vimal Kumar Kunda Vs. State of Bihar. In this case court was dealing with section 274 & 275 of IPC. In another case the Hon’ble High Court of Punjab & Haryana in Rajiv Kumar Vs. State of Punjab it was categorically held that for contravention of provision of D&C Act, 1940 complaint will lie with the Drug inspector and not FIR and not prosecution by the police. The Hon’ble court has quashed the FIR in that case.
Under above circumstances in view of newly added section 36AC it can only stated that the offence which requires technical investigation such as drawing sample, test reports from State laboratory, Challenges to the CDL, are not within the scope of the police action. There is serious doubt that even in case of other offences which do not require establishment by test report, police has any right for F.I.R. In view of above, it can be safely concluded that police has no power to register FIR in respect of even the offences stated in section 36AC. This view is also based upon the fact that no corresponding amendment was made in section 32 of the Act. Even reading of section 36AC did not disclose that the Magistrate can take cognizance of offence as the language of the section does not import the same provision containing section 32.
The power of the court is somewhat revolved around grant or non-grant of bail. Thus the provision of section 32 is remaining unaffected and not interfered with section 36AC. Till any judgement or judicial review is made of the amended section 36AC it is highly improbable to conclude that police has any right to register FIR.
Disclaimer: The view given above is the personal opinion of the author based upon the preposition of law and understanding of the same. Readers are advised to refer to the full text of judgment before acting upon it.
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