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INTRODUCTION
The control over manufacture, sale and distribution of drugs in India is governed under Chapter-IV of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as “DCA”) which had been enacted prior to independence of the country ("The Drugs and Cosmetics Act," 1940). As per the 7th Schedule of the Indian Constitution, drugs fall under the Concurrent List (List III) and hence DCA, is enforced by both at Central as well as State Governments ("The Constitution of India," 1950). The Central and State Drug Regulators have been assigned various responsibilities under the DCA and Rules made thereunder for regulation of drugs, medical devices and cosmetics, as per the mandate of the DCA ("The Drugs Rules," 1945).
The Inspectors under the DCA, commonly known as Drugs Inspectors, are appointed by the Central and State Governments under Section 21, by way of notification in official gazette. The legislature imparts various statutory responsibilities to them to carry out enquiries and investigations to detect the contraventions and offences under the DCA and to take appropriate actions as per law ("The Drugs and Cosmetics Act," 1940; "The Drugs Rules," 1945). The offences under the DCA are considered to be of criminal and of grave nature. The legal proceedings towards these criminal offences also involves the procedural aspects as mentioned in Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC’) ("The Code of Criminal Procedure," 1973). The CrPC confers uniform law of criminal procedure to be followed in India. The Government of India has replaced CrPC with Bhartiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as “BNSS’) with effect from 1st July, 2024 ("The Bhartiya Nagarik Suraksha Sanhita," 2023).
The Supreme Court of India, being the country’s Apex judicial court, has interpreted the CrPC in various manners over the years, and accordingly, revised its application. The Hon’ble Supreme Court of India has exercised its power conferred to it under the provisions of Article 142 of the Constitution of India in its judgement dated August 28, 2020 ("Union of India vs Ashok Kumar Sharma and Others," 2020). In this judgement, the Hon’ble court has made certain observations regarding applicability of the provisions of CrPC in respect to the offences under the DCA.
The Apex Court of India has interpreted the provisions of CrPC regarding registration of FIR and arrest of person in respect to the offences falling under Chapter IV of the DCA. The court has threw light on Section 154 of the CrPC that whether it is appropriate to apply it in case of offences falling under Chapter IV of the DCA or whether specific Section of the Special Act (DCA) i.e. Section 32 would prevail over it. It has also deliberated on the procedure to be followed for investigation of offences and taking cognizance under the DCA. Moreover, it also dealt with the burning issue of “arrest to be made by the Inspector under the DCA” in case of offences committed under Chapter IV of the DCA.
Definition of “Arrest”
The definition of word “arrest” does not find any mention in CrPC. Even, the new criminal law BNSS 2023 has also not defined the term "arrest". Interestingly, the Apex Court has also observed ("State of Haryana and Others vs Dinesh Kumar," 2008) that definition of the term “arrest” is not mentioned either in the CrPC or in IPC ("The Indian Penal Code," 1860) or in any other criminal law.
The arrest means "into custody of another persons under authority empowered by law for the purpose of holding or detaining him to answer a criminal charge and preventing the commission of a criminal offence”. The arrest of any person involves infringement of the personal liberty, which is a basic human right. As per Section 2(1)(d) of the Protection of Human Rights Act (PHRA), 1993 (amended in year 2006), Human Rights have been defined as “the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India”("The Protection of Human Rights (Amendment) Act," 2006; "The Protection of Human Rights Act," 1993). Article 21 of the Indian Constitution states that “no one can be deprived of their life or liberty except in accordance with the law” ("The Constitution of India," 1950). The National Human Rights Commission (NHRC) of India had issued Guidelines Regarding Arrest to narrow down the gap between practice of law and violation of Human Rights (NHRC Guideline No. 7/11/99-PRP&P, 1999). Traditionally, even the execution of search warrant had also been associated with many problems in case of administration of Federal Food, Drugs and Cosmetics Act in the United States which suggested its sparing usage (Strichartz, 1954). Hence, the execution of arrest calls for even more caution.
Many judgments have also been passed by the Courts of law with regard to the principles and guidelines to be followed for arrest of persons. The Apex Court had observed that there must be some rationale behind the execution of arrest ("Joginder Kumar vs State of U.P.," 1994). It is pertinent to mention certain observations made by the Hon’ble Supreme Court of India regarding arrest, which are briefly mentioned below:
(i) Executing arrest, merely because an officer is authorized to do so, is not allowed. The power imparted by the law should be used cautiously and the officer effectuating arrest must give proper rationale behind it.
(ii) Arrest is not to be made without satisfaction of the officer in terms of authenticity of commission of offence and prima facie belief about the involvement of person in the offence. Further, arrest is to be done if absolutely needed.
(iii) The officer has to be of opinion that the arrest of the person is required in such case. Arrest is not to be done simply on the grounds of speculation of connivance in any offence.
(iv) Except in heinous crimes, if a person complies with the directions mentioned in notice issued by the officer to attend the investigational proceedings, arrest of such person must be prevented.
The Hon’ble court also issued few stringent requirements for protection of fundamental rights of persons as granted by Indian Constitution under Articles 21 and 22 (1), which are to be followed strictly:
(I) The arrested person is permitted to inform one friend or relative or other known person about his arrest and place of detention.
(II) The officer has to inform the arrested person regarding above upon his arrival at the place of detention.
(III) The details of the person who has been informed about the arrest have to be maintained in the Diary.
The Rajasthan High Court has held that the credibility of information or complaint as well as legal justification is needed for arrest of any person ("State of Rajasthan vs Bhera," 1996). The apex court has also prescribed the guidelines to be complied with in cases of arrest and detention ("D.K. Basu Vs State of West Bengal," 1996). The Hon’ble Supreme Court of India has also issued directions to prevent unnecessary arrest by police officers and casual detention authorization by Magistrates, applicable in cases where offence is punishable with seven years imprisonment or less ("Arnesh Kumar vs. State of Bihar and Anr.," 2014). The aforesaid instructions issued by the Apex Court, also known as “Arnesh Kumar guidelines” are briefly summarized below:
- Instructions have to be issued by respective State Governments to their officers that they cannot process arrest in mechanical manner in case of cognizable offences and it is to be done only after satisfaction of officer in respect of absolute necessity.
- The Government has to provide the officers a check-list for the purpose of making records for effectuating preventive arrest or arrest for the purpose of effective investigation of the cognizable offence.
- The officer who has made the arrest has to provide the duly filled above check-list along with the grounds of which arrest has been made, at the time of production of accused before the magistrate for detention.
- The Magistrate has to carefully scrutinize the report submitted by the officer requesting the detention with respect to above check-list and the reason for arrest, and order accordingly.
- The officer also has to intimate to the Magistrate within two weeks of initiation of the case, in case he has decided not to arrest any person.
- In aforesaid case, the officer has to issue notice under Section 41A of CrPC [now 35(3) of BNSS] for ensuring the presence of the accused within two weeks of initiation of the case.
- Departmental action is to be initiated against the officer; in case the officer fails to comply with the aforesaid directions. The officer is also likely to be punished for contempt of court before the High Court in such a case.
- Further, departmental action against the Magistrate is to be taken by the High Court, in case the Magistrate authorizes detention without recording appropriate reasons.
Relavent provisions under Bharatiya Nagarik Suraksha Sanhita, 2023 related to arrest of persons
Since Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is the new and current criminal procedural law in India w.e.f. 01st July, 2024, it is pertinent here to mention about the relevant provisions in BNSS which are related to the arrest of persons ("The Bhartiya Nagarik Suraksha Sanhita," 2023).
The “Arrest” of any person can be categorized into two broad categories (Kataria & Tomar, 2023):
(i) Arrest made after issuance of warrant from a magistrate
(ii) Arrest made in absence of warrant, subject to compliance with relevant statutory provisions
Chapter V of BNSS deals with “ARREST OF PERSONS”, which contains Section 35 to 62 prescribing the procedure and other legalities to be done as per law. Further, Section 187 of BNSS prescribes the procedure to be followed when requisite investigation could not be undertaken within prescribed period of detention.
The relevant provisions of BNSS and CrPC related to arrest of person along with its applicability in offences under the Drugs and Cosmetics Act, 1940 have been summarized and tabulated below. The aforesaid provisions related to arrest of person in cognizable offences and Non-cognizable offences are mentioned in Tables 1 and 2, respectively. Table 3 contains provisions related to procedure to be followed during arrest. Provisions in Table 4 mention about the rights of arrested person. The statute also prescribes the procedure to be followed after arrest of a person, which is mentioned in Table 5. Provisions related to Judicial proceedings after arrest of person are described in Table 6.
| Relevant Section of BNSS 2023 | Corresponding Section in CrPC 1973 | Description | Applicability in Case of Arrest made in offences under the Drugs and Cosmetics Act, 1940 |
|---|---|---|---|
| Section 35(1): Conditions in which arrest can be made in the absence of any warrant i.e. Arrest in cases of Cognizable offences | Section 41 of CrPC 1973 | Section 35(1)(a): A person can be arrested if he commits a cognizable offence in presence of a police officer. Section 35(1)(b): A person can be arrested if a legitimate information has been received against him or upon strong belief about person’s complicity in cognizable offences punishable with imprisonment upto seven years. Note: The officer has to record the reasons, both in case of making arrest or not making arrest, under the provision of Section 35(1)(b) of BNSS. Section 35(1)(c): A person can be arrested if a legitimate information has been received against him regarding committal of cognizable offences punishable with imprisonment for more than seven years. | Cognizable offences under the DCA vis-à-vis BNSS: (a) Section 36AC of the DCA describes the cognizable and non-bailable offences under the DCA. The offences under this Section are related to adulterated or spurious drugs. (b) Part II of First Schedule of BNSS 2023 classifies the offences, which are punishable with three years imprisonment and more, as cognizable offences. Note: Every offence related to adulterated or spurious drugs irrespective of imprisonment period as well as offences with imprisonment with three years or more are cognizable under Drugs and Cosmetics Act, 1940. So arrest can be made in these offences subject to compliance of provision of arrest under BNSS 2023. |
| Section 35(3)/(6): Notice for Appearance before Police Officer | Section 41A of CrPC 1973 | Section 35(3)-If arrest is not required in the case under sub-Section 35(1), then notice u/s 35(3) of BNSS has to be issued. Note: Form No. 01 of Second Schedule of BNSS 2023 is to be issued in this case. Section 35(4)-It is obligatory for every person to comply with the directions mentioned in the notice. Section 35(5)-If person complies with above notice, then he/she shall not be arrested. If the police officer still arrests that person, then the reasons thereof must be recorded. Section 35(6)-If the person does not comply with above notice, then he/she shall be arrested, subject to order of competent court. | Provisions for issuance of notice under Drugs and Cosmetics Act, 1940: No such direct Form/provision is given Drugs and Cosmetics Act, 1940. However, Such notices may be issued under below noted sub-Sections of Section 22 of DCA describing the Powers of Inspectors. (i) Section 22(1)(cca) (ii) Section 22(1)(d)- Specific reason needs to be mentioned to use this power Limitation: The both above powers are applicable only in local jurisdiction of Drugs Inspector. (iii) Section 18B- Furnishing of information by a license holder under Section 18(c) of the DCA. |
| Section of BNSS 2023 | Corresponding Section in CrPC 1973 | Description | Applicability in Case of Arrest made in offences under the Drugs and Cosmetics Act, 1940 |
|---|---|---|---|
| Section 35(2): Arrest in case of Non- Cognizable offences | Section 41 of CrPC 1973 | A person committing a non-cognizable offence shall only be arrested after issuance of warrant or order by the Magistrate, subject to the provision of Section 39 i.e. if he refuses to furnish the necessary details/information as demanded by the officer. | Non-Cognizable offences under the DCA vis-à-vis BNSS: Part II of First Schedule of BNSS 2023 classifies the offences, which are punishable with less than three years imprisonment or with fine, as non- cognizable offences, subject to the condition that only those offences which are not relating to adulterated or spurious drugs under the DCA are non-cognizable in nature. e.g. Offences under Section 27(d), 27A, 28, 28A, 28B, 29 of Drugs and Cosmetics Act, 1940 subject to condition that the offences should not be related to adulterated or spurious drugs. |
| Section 35(7) *New Provision inserted in BNSS 2023 | - | This new Section inserted in BNSS 2023 put a limitation regarding arrest in cases of offences which are punishable with less than three years imprisonment committed by any infirm person or by person of more than sixty years of age. It is mandatory to obtain permission from an officer of the rank of Deputy Superintendent of Police and above, to make arrest in such cases. | Concerned Authority under the DCA vis-à-vis BNSS: In Drugs and Cosmetics Act, 1940 and Rules made thereunder, the Controlling Authority is the competent authority under Rule 50 of Drugs Rules, 1945. So, permission from controlling authority is required before making arrest under such cases. |
| Section of BNSS 2023 | Corresponding Section in CrPC 1973 | Description | Applicability in Case of Arrest made in offences under the Drugs and Cosmetics Act, 1940 |
|---|---|---|---|
| Section 36: Procedure of Arrest and duties of Officer making Arrest | Section 41B of CrPC 1973 | The police officer has to prepare Memorandum of arrest which is to be attested by minimum one witness (either family member of arrested person or reputed person of his locality) and countersigned by the arrested person. Further, it is the duty of the police officer to intimate the arrested person about his right to inform one friend or relative or other known person about his arrest. | For making any arrest under the DCA, the Drugs Inspector has to follow the procedure as defined under BNSS 2023. |
| Section 37 | Section 41C of CrPC 1973 | The State Government shall cause the particulars of arrested persons like name, address, nature of offence made etc. to be displayed in prominent manner outside the designated control rooms in every district. The State Government shall depute one Police Officer of the rank of Assistant Sub-Inspector and above to be accountable for who shall be responsible for maintenance of information and display of details of arrested persons as above. | There is no hierarchy of sub-ordinate staff to the Drugs Inspectors in the organizational setup of enforcement divisions of State Drugs Control Departments. Hence, the issue regarding the responsible officer for maintaining information and displaying details of arrested persons is a matter of discussion within the Government setup / State Drugs Control Departments. |
| Section 43: Arrest How Made | Section 46 of CrPC 1973 | This Section includes the description of the manner in which arrest is to be made. Newly inserted provision: Use of Handcuff allowed in certain cases: (i) Habitual Offende, (ii) Repeat Offender, (iii) Escaped from custody, (iv) Organised Crime, (v) Terrorist activities, (vi) Drugs related cases, (vii) Illegal possession of arms and ammunition, (viii) Murder, (ix) Rape, (x) Acid attack, (xi) Counterfeit currency, (xii) Sexual offence against Children, (xiii) Human trafficking and (xiv) Offence against state. Note: A women shall only be arrested, upon permission from Magistrate of First Class on report of women police officer, in specific cases where the arrest is to be made after sunset and before sunrise. | Procedure under Section 43 of BNSS is to be followed by Drugs Inspector for making arrest. |
| Section 45: Pursuit of offenders into other jurisdiction | Section 48 of CrPC 1973 | This Section empowers the police officer to follow any person in any area in India (outside of his jurisdiction) for the purpose of arresting him without warrant whom he is authorised to arrest. | Arrest of a person by Drugs Inspector beyond his jurisdiction is as per the relevant legal provisions of BNSS 2023. |
| Section of BNSS 2023 | Corresponding Section in CrPC 1973 | Description | Applicability in Case of Arrest made in offences under the Drugs and Cosmetics Act, 1940 |
|---|---|---|---|
| Section 38 | Section 41D of CrPC 1973 | The arrested person is permitted to have a meeting with an advocate as desired during the course of interrogation. | The accused arrested by Drugs Inspectors are entitled to exercise the rights granted to him by the legislature in case of any arrest under the DCA. |
| Section 47 | Section 50 of CrPC 1973 | It is the duty of police officer to inform the arrested person about the cause of arrest along with details of offence committed. Further the police officer has to also inform him about his right to bail, subject to legal formalities. Note: The cause of arrest of a person must flow from Article 22 of the Constitution of India, along with compliance to the guidelines prescribed by the Apex court in D.K. Basu vs. State of West Bengal (1997) AIR 1997 SC 610), [14]. | |
| Section 48 | Section 50A of CrPC 1973 | It is the duty of police officer to inform one friend or relative or other known person of the arrested person about his arrest and place of detention upon arrival at the place of detention. |
| Section of BNSS 2023 | Corresponding Section in CrPC 1973 | Description | Applicability in Case of Arrest made in offences under the Drugs and Cosmetics Act, 1940 |
|---|---|---|---|
| Section 49: Search of Arrested Person | Section 51 of CrPC 1973 | The arrested person might be subjected to personal search by the police officer, who would put all the items found in safe custody. In case, the officer seizes any article from the arrested person, he shall give a receipt to such person showing the details thereof. Further, search of a female is to be conducted by another female by carefully maintaining the dignity of the person. | Drugs Inspectors are required to prepare a Search Memo of arrested person as per the relevant legal provisions of BNSS 2023. |
| Section 50 | Section 52 of CrPC 1973 | Power to seize offensive weapons | Drugs Inspectors are required to follow the relevant legal provisions of BNSS 2023. |
| Section 53: Examination of arrested person by medical officer | Section 54 of CrPC 1973 | The Medical Officer of Central Government or State Government (or a registered medical practitioner in his absence) shall examine the arrested person soon after arrest Further, medical examination of a female shall be performed by a female medical officer (or a female medical practitioner in her absence) or under her supervision. | A request letter is to be written by the Drugs Inspectors to Medical Superintendent / CMO of the district regarding the medical examination of arrested person. After medical examination, the Medical Officer shall supply his/her medical report to the arrested person or to the person so nominated by him/her. |
| Section 56: Health and Safety of arrested person | Section 55A of CrPC 1973 | It is the duty and responsibility of the officer who has made arrest to take care of the well being of such person. | Drugs Inspectors have to ensure the health and safety of arrested person. |
| Section of BNSS 2023 | Corresponding Section in CrPC 1973 | Description | Applicability in Case of Arrest made in offences under the Drugs and Cosmetics Act, 1940 |
|---|---|---|---|
| Section 57 | Section 56 of CrPC 1973 | The police officer is duty bound to take or send the person who has been arrested without warrant, before a Magistrate or before the police station incharge, without any delay, subject to the compliance to relevant provisions of bail. | Drugs Inspectors must follow all the relevant provisions while making any arrest under Drugs and Cosmetics Act, 1940. |
| Section 58 | Section 57 of CrPC 1973 | The police office is not permitted to keep person who has been arrested without warrant, in his custody exceeding 24 hr. | |
| Section 59 | Section 58 of CrPC 1973 | Police to report apprehensions in case of person arrested without warrant, whether admitted to bail or not. | |
| Section 60 | Section 59 of CrPC 1973 | An arrested person shall only be released if he furnishes bond or bail bond, or upon the special order passed by a Magistrate in this regard. | |
| Section 187 | Section 167 of CrPC 1973 | This Section provides in detail the procedure to be adopted in case further investigation is to be carried out beyond twenty- four hours (as permitted under Section 58 of BNSS). |
The empowerment of Drugs Inspectors under the Drugs and Cosmetics Act, 1940: Whether Drugs Inspectors have power of arrest?
Hon’ble Supreme Court of India, vide order dated 28 August, 2020 has held that the Drugs Inspector can make arrest without any warrant in case of cognizable offences made under Chapter IV of the DCA in compliance to provisions of Section 22(1)(d) of the DCA ("Union of India vs Ashok Kumar Sharma and Others," 2020). However, they have to mandatorily follow the relevant directions issued by the Apex court in D.K. Basu Vs State of West Bengal, along with compliance to the provisions of CrPC (now BNSS).
As per earlier practice followed by the Drugs Inspector, either they used to associate police officials for joint raid/inspections and used to request the police officials for registration of FIR for committal of cognizable offence under DCA and/or other Acts as applicable. The police officials used to register FIR in such cases, conduct enquiry/investigation, execute arrest(s) if necessary and file chargesheet in the Court of law. Drugs Inspector used to file separate complaint under Section 32 of DCA in the Court, which would be merged with the chargesheet filed by Police for same or connected offence(s) under Section 210 of CrPC and tried as single State case. Now, after the aforesaid judgement by Apex Court, this practice have been discontinued and Drugs Inspector is now solely responsible for conducting enquiry/investigation and execution of arrest(s) if necessary, and filing of complaint in the Court of law for trial of offences under DCA.
Further, it is relevant to mention here that the Hon’ble Supreme Court has exercised its special power conferred to it under Article 142 of the Constitution of India while issuing above directions. These directions are obligatory to comply with by all drug regulators across India until specific provision in this behalf is made in the law.
CONCLUSION
Reconciliation between catching hold of offenders and constitutional rights of accused persons is the most crucial aspect before effectuating the arrest, leading to the principle of natural justice. No public servant can deprive any person of his fundamental right to personal liberty which has been granted under the Constitution of India. However, this never means that the accused can roam scot-free without the apprehension of law. The interplay of criminal laws with Drugs and Cosmetics Act, 1940 is indispensible as the offences under the DCA are of grave and criminal nature, affecting the life and well-being of society.
The Hon’ble Supreme Court has well analyzed the mandate of the DCA in Union of India Vs Ashok Kumar Sharma and others. The Apex Court has interpreted the powers of Drugs Inspector conferred by the statute under Section 22(1)(d) of the DCA and vested the Drugs Inspector with the power of arrest, inter alia the other specialized duties to be performed as per law. Now, as per the directives issued by the Apex Court, only the Drugs Inspectors are authorized for investigation of offences made under the Drugs and Cosmetics Act, 1940, including the arrest if necessary, and not the police officials ("Union of India vs Ashok Kumar Sharma and Others," 2020).
The arrest of a person accused of committing an offence under the DCA would amount to curtailment of his fundamental right of liberty. Hence the same should be exercised with great caution. The reply to the pressing issue that whether Drugs Inspector should make arrest in case of cognizable offence or not, would be conditional depending upon the harmonization between society's rights and individual rights. The upgradation of current manpower, infrastructure and competency of Drugs Regulators would be of great assistance in executing the directives of Hon’ble Supreme Court of India. The authors desire further research regarding the actual implementation of the aforesaid judgment of the Apex Court by Central and State Drugs Regulatory Authorities of India and development of a pragmatic approach to deal with the menace of offences under the Drugs and Cosmetics Act, 1940.