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Dr. Hrushikesh Mahapatra, former Drugs Controller of Odisha, presented a detailed submission to a high-level committee constituted by the Drugs Controller General of India (DCGI) to propose new guidelines for the prosecution and arrest of offenders involved in spurious drug cases.
The proposal seeks to clarify the often-complex jurisdictional overlap between law enforcement and drug regulatory authorities, drawing heavily on judicial precedent to streamline enforcement.
The core of Dr. Mahapatra's proposal addresses ambiguities arising from the Supreme Court's orders in SC Criminal Appeal-200/2020, Ashok Kumar and Others vs Union of India. According to the analysis presented, a fundamental distinction is maintained, police officers are explicitly barred from initiating prosecution for cognizable offenses under Chapter IV of the Drugs and Cosmetics Act (DCA). The authority to prosecute is reserved exclusively for the persons specified in Section 32 of the Drugs and Cosmetics Act, typically designated Drug Inspectors (DIs).
Crucially, the submission asserts that a police officer is not empowered to register a First Information Report (FIR) under the relevant section of the Bharatiya Nagarik Suraksha Sanhita (BNSS-173) in connection with cognizable offenses under Chapter-IV of the D&C Act. Furthermore, police personnel cannot investigate such offenses under the provisions of the BNSS. This reinforces the legislative intent of the D&C Act as a specialized statute governing drug offenses.
Despite these limitations on prosecution, the document clarifies that a Drug Inspector is, in fact, empowered to make an arrest. The submission points to Section 22(1d) of the D&C Act, which grants a DI the power to arrest an offender for a cognizable offense without a warrant. This power, however, is not absolute, it must be exercised in strict compliance with the law, particularly the guidelines set forth in the D.K. Basu case and the relevant provisions of the BNSS.
To address ongoing operational challenges, the former drugs controller has proposed several statutory amendments. These include modifying Section 23(4)(iii) of the D&C Act concerning the delivery of a third sample portion to the manufacturer or marketer named on the label. Furthermore, an amendment to Rule 46 of the Drugs Rules is suggested to statutorily enable a government analyst to declare a drug as spurious if it fails identity and strength tests.
The proposed guidelines also seek to formalize the Drug Inspector’s power of arrest. The submission recommends amending Rules 51 and 52 of the Drugs Rules to explicitly empower the DI to arrest for cognizable offenses under Section 36 AC. Furthermore, administrative changes are suggested, such as adding conditions to drug license forms (F-20, F-21) that would mandate licensees to inform authorities about out-of-state drug purchases and utilize digital platforms for payments to enhance traceability.
Dr. Mahapatra’s submission outlines an exacting procedure for search, seizure, and arrest by DIs. These steps mandate the disclosure of the investigating officer’s identity, the presence of two independent and respected witnesses, the preparation of a Panchnama/Mahazar, and the compulsory maintenance of a diary of all proceedings. Additionally, the guidelines emphasize the need for video recording of the search and seizure process, as stipulated under BNSS-105, ensuring due process is followed at every stage of enforcement against the trade of spurious medicines.
Further, the proposal dedicates significant attention to strict adherence to due process following an arrest, mandating the use of prescribed forms for complete transparency. These forms include a detailed Arrest Memo that must explicitly state the grounds of arrest, bear the signatures of the drug inspector, the arrestee, and a witness, and confirm that the arrested person's relative or friend has been informed. Additionally, a separate Inspection Memo is prescribed, listing all items recovered from the arrestee’s possession during the search, which is then seized under Form-16 of the D&C Act. This level of detail aims to prevent legal challenges by ensuring full compliance with constitutional rights and the relevant sections of the BNSS related to custody and documentation.
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