Chapter-4

JUDICIAL ATTITUDE TOWARDS WHITE

COLLAR CRIMES IN INDIA
Let not the mighty and rich think that courts are their paradise and in the legal
arena they are the dominant players.
(Supreme Court of India)1

4.1 INTRODUCTION-
Three organs of the Government are legislature, Executive and Judiciary with
defined roles of each other. Laws have no meaning without adequate enforcement,
which is why our Constitution has put in place an elaborate judicial system with the
Supreme Court at the apex. As law abhors vacuum, so therefore, when the Executive
refused to act and legislature could do little about it, Indian Judiciary stepped in to
save the day. The public interest litigation has proved to be a strong and potent
weapon to control white collar crimes. Hawala scam, fodder scam, St. kits scam,
illegal allotment of government houses and petrol pumps scam have come to light
through public interest litigation. This chapter is a reflection of pure judicial response
to assist in the eradication of white collar crimes from India. The chapter is not
considering other material for its support but is relying exclusively upon the judicial
precedents. Thus, the work is directly proceeding from judicial activism. Indian
Judiciary has taken a serious note of the growing intensity of white collar crimes.
4.2 PREVENTION OF CORRUPTION ACT,1988-
Prevalence of corruption is one of the problems which our country has been
facing from time immemorial. Corruption retards our countrys growth and welfare to
the maximum extent2. According to Strouds Judicial Dictionary3 corruption means
moral obliquity or moral perversity. Corruption4can be defined as departure from
what is pure or correct from the original. The strict vigilance over corruption under
the Prevention of Corruption Act 1988 is reflected in various important judgments of
the Supreme Court of India and different High Courts. In spite of various tools

1
Rathinam v. State of Tamil Nadu & Anr, (2011) 11 SCC 140.
2
Mota Ram v. State of Haryana, AIR 2010 SC 3780, See also State of Madhya Pradesh v. Ram Singh,
AIR 2000 SC 870, Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64.
3
StroudsF,The Judicial Dictionary 172 (1890)
4
P. RamanathaAiyar, The Law Lexicon 414 (2010).

184
available, corruption has increased. The present scenario of corruption in India has
been depicted by Justice A.K. Ganguli in Subramanian Swami v. Dr. Manmohan
Singh,5 in following words:
Today corruption in our country not only poses a grave danger to the concept of
constitutional governance, it also threatens the very foundation of Indian Democracy
and the Rule of Law. The magnitude of corruption in our public life is incompatible
with the concept of socialist, secular, democratic republic. It cannot be disputed that
where corruption begins, all rights end. Corruption devalues human rights, checks
development and undermine justice, liberty, equality, fraternity which are the core
values of our Preamble. Therefore, the duty of the court is that any anti-corruption law
has to be interpreted and worked out in such fashion as to strengthen the fight against
corruption.
The Supreme Court of India in J. Jayalalitha v. Union of India,6 has held that
Corruption corrodes the moral fabric of the society and corruption by public servant
not only leads to the corruption of the moral fabric of the society but is also harmful
to the national economy and national interest, as the person occupying high posts in
government by misusing their powers due to corruption can cause considerable
damage to the national economy, national interest and image of the country.
Similarly in Polla Aswarth Narayana v. State of Andhra Pradesh,7 the Honble High
Court of Andhra Pradesh has held that demanding and receiving bribe cannot be part
of official duty of the public servant. Similarly in Kamal Kishore Prasad v. State of
Bihar,8 it was ruled by the Court that just because the delinquent was exonerated in
departmental proceedings, it would not ipso facto result in the acquittal of the accused
in criminal proceedings.
While dealing with this issue the judiciary took even senior bureaucrats with heavy
hands. In A.Watiao v. State of Manipur,9 one senior IAS officer serving under
Government of Manipur was party to a conspiracy in giving contract to the firm at an
extremely exorbitant rate. The Special Judge, Manipur sentenced him to pay a fine of

5
AIR 2012 SC 1207.
6
AIR 1999 SC 1912, See also State v. Bharat Chadra Roul, 1995 Cri LJ 2417 (Ori).
7
2012 Cri LJ 14 (A.P.), See also Madhukar Bhaskarrao Joshi v. State of Maharashtra, AIR 2001 SC 147,
Sita Ram v. State of Rajasthan, AIR 1975 SC 1432, Hazarilal v. State, 1980 (2) SCC 390, Balram
Kumar v. State of Himanchal Pradesh, 2014 Cri LJ 243 (HP).
8
2011 Cri LJ 1469, See also Central Bureau of Investigation v. V.K. Bhutiani, (2009) 10 SCC 674.
9
AIR 1996 SC 361.See also Mukhtiar Singh v. Bal Mukand , MLA, AIR 1994 P&H 125, Tmt. Kalachi v.
State 2006 Cri LJ 2053, Dr. Shashikant D. Karnik v. State of Maharastra 2008 Cri LJ 148.

185
Rs. 10,000/- and to imprisonment till the rising of the court. The Guwahati High
Court did not interfere with the order of the Special Judge on appeal. On further
appeal, the Apex Court maintained the conviction of fine, but enhanced the sentence
of imprisonment to six months. The Supreme Court held that awarding sentence of
imprisonment till the rising of court is mockery of justice and that the lower court
should have taken a serious view of the matter instead of soft dealing when corruption
of a responsible Government Officer is involved. While dealing with the liability of
public servants the Supreme Court of India in Common Cause v. Union of India,10 has
held that with the change in socio economic outlook, the public servants are being
entrusted with more and more discretionary powers even in the field of disbursement
of government wealth in various forms. If a public servant abuses his office either by
an act of omission or commission and the consequences of that is injury to an
individual or loss of public property, an action may be maintained against such public
servant. It is high time that public servant are held personally responsible for their
mala fide acts. In Satya Narayan Sharma v. State of Rajasthan,11 it was held by the
Supreme Court that when public servant are sought to be prosecuted under the
Prevention of Corruption Act, the trial of the criminal cases cannot be stayed by filing
revisions under Section 397 of the Code of Criminal Procedure, 1973 or, by filing
application under Section 482 of Code of Criminal Procedure, 1973. The order of stay
of trial of the cases under Prevention of Corruption Act 1988 is in violation of
provisions of Section 19(3)(c) of the said Act. Now an important question arises
whether the Probation of Offenders Act and Section 360 of Code of Criminal
Procedure, 1973 can be applied in cases under the Prevention of Corruption Act 1988.
Deciding this issue in State of Tamil Nadu v. Kalia Perumal,12 the Supreme Court has
held that Section 18 of the Probation of Offenders Act 1958 expressly bars the
application of the said Act for the offences under the Prevention of Corruption
Act1988. Similarly in State v. Ratan Lal Arora,13 it is held by the Supreme Court that
the benefit under the provisions of the Probation of Offenders Act and section 360 of

10
AIR 1997 SC 1886, See also M. Narayanan Nambiar v. State of Kerla, AIR 1963 SC 1116, Som Nath
Puri v. State of Rajasthan, 1972 (1) SCC 650.
11
AIR 2001 SC 2856. See also Bhagirath v. State of Haryana, AIR 1997 SC 234, Neraj Kumar v. State of
Rajasthan, 1996 Cri LJ 2067 (Raj).
12
(2006) 1 SCC (Cri) 615, See also Shivpillai v. B.C. Jose, AIR 1986 Ker. 153, Shri Rajendra Jonko v. The
Suprintendant of Police,C.B.I. 2004 Cri LJ 3703, M. Srinivasulu Reddy v. State Inspector of Police 1993
Cri LJ 558,
13
(2004) 2SCC (Cri) 1353.See also Ajahar Ali v State of West Bengal, 2014 Cri LJ 18 (WB),

186
the Code of Criminal Procedure, 1973 cannot be made applicable to a conviction
under the Prevention of Corruption Act, 1988.
Under the Prevention of Corruption Act, 1988 prior permission of the authority
is required before launching prosecution against a public servant.14 In Dilawar Singh
v. Parvinder Singh,15 it was held by the Supreme Court that the provisions of section
19 of Prevention of Corruption Act 1988 will have an overriding effect upon the
general provision contained in section 190 or 319 of the Code of Criminal Procedure,
1973. A Special Judge while trying an offence under the Prevention of Corruption
Act, 1988 cannot summon another person and proceed against him in the purported
exercise of power under section 319 of the Code of Criminal Procedure, 1973, if no
sanction has been granted by the appropriate authority for prosecution of such a
person, as the existence of sanction is a sine qua non for taking cognizance of the
offence qua that person. However in Grish Saini v State of Rajasthan,16the court
opined that merely by error, omission or irregularity in grant of sanction, a finding,
sentence or order passed by trial court cannot be reversed or altered by appellants
court unless failure of justice has occasioned to the accused.
In a landmark judgment of Parkash Singh Badal v. State of
Punjab,17Supreme Court of India has expressed that if an accused is a public servant
who has retired or ceased to be a public servant then to prosecute him no sanction in
terms of Section 19(1) of the Act is necessary. Similarly in Subramaniam Swami v.
Manmohan Singh,18 it has been held by the court that when an offence is committed
by a public servant and he resigns before cognizance is taken by the court, no prior
sanction is needed. A. Raja, Union Tele-com Minister resigned from the post of
Minister in 2G Spectrum Scam but continued to be a member of Parliament. It was
held by the Court that no sanction is required under section 19 of the Prevention of
Corruption Act 1988.

14
Section 19 of the Prevention of Corruption Act 1988..
15
(2006) 1 SCC (Cri) 727, See also Ramesh Lal Jain v. Naginder Singh Rana, (2006) 1 SCC 294,
VineetNarain v. Union Of India, (1998) 1 SCC 226, Jaswant Singh v. State of Punjab, AIR 1958 SC
124.
16
2012 Cri .LJ 246 (Raj.), See also BasirUl- Haq v. State of West Bengal, AIR 1953 SC 784,
ParasNathPandeyV. State AIR 1962 Bom. 205.
17
2006 (10) SCR 197, See also R. S. Nayak v. A. R. Antulay (1984) 2 SCC183.
18
AIR 2007 SC 18. See also Lalu Prasad v. State of Bihar, AIR 2007 SC 18.

187
 Recently in Vitthal Pandurang Pawar & Ors. v. State of Maharashtra,19
explaining another aspect of law the accused government servant was charged for the
offence of forgery under Indian Penal Code, 1860 and S.5 of the Prevention of
Corruption Act, 1988. Prior sanction which is the sine qua non for convicting the
public servant was not proved. It is held that failure to prove sanction affects
conviction under the Prevention of Corruption Act 1988 but does not affect the
conviction for offences under the Indian Penal Code 1860.
The Supreme Court of India in State of Maharashtra v. Wasudeo Ramchandra
Kaidalwar,20 has held that expression "burden of proof" has two distinct meanings (1)
the legal burden, i.e. the burden of establishing the guilt, and (2) the evidential
burden, i.e. the burden of leading evidence. In a criminal trial, the burden of proving
everything essential to establish the charge against the accused lies upon the
prosecution, and that burden never shifts. The extent and nature of burden of proof
resting upon the public servant to be found in possession of disproportionate assets
under Section 5(1) (e) cannot be higher than the test laid by the Court in Jhagan's
case.21 i.e. to establish his case by a preponderance of probability. The accused is not
bound to prove his innocence beyond all reasonable doubt. All that he need to do is to
bring out a preponderance of probability.
The Supreme Court of India in State v. S. Bangarappa,22 has ruled that even if
the High Court found that the City Civil and Sessions Judge was not empowered
under Section 4 of the Prevention of Corruption Act to try the cases, that could not be
a ground to quash the criminal proceedings. At the worst that would be a ground to
transfer the case from that court to the court having jurisdiction to try the offence, and
if no court had been empowered till then, the criminal proceedings could be kept in
abeyance till the Government issues a notification conferring such power on any other
court.

19
(2012) 11 SCC 172, See also State Inspector of Police Vishakhapattnam v. Surya Sankaram Karri,
2006 (46) 716 (SC).
20
AIR 1981 SC 1186, See also G. Manohar v. State 2007 Cri LJ 4755, Ram Babu Singh v. Addl. D.G.P. of
Police 1993 Cri LJ 1253, State v. Dr. R.C. Anand and Anr. , AIR 2004 SC 3693.
21
AIR 1956 SC 1762.
22
AIR 2001 SC 222. See also Periyaswamy v. Inspector, Vigilance 1999 Cri LJ 2944, Pulavar B.M.
Senguttuvan v. The State 2004 Cri LJ 558, V. Kasi v. State of Tamilnadu 2003 Cri LJ 3592, Hariraman
v. State 1995 Cri LJ 3527,B. Rangarathan v State 2003 Cri LJ 2779, Ayyasamy and Another v. State
1996 Cri LJ 119, K. Sivanandam v. State 1999 Cri LJ 2442, C.B.I. Anti Corruption Branch, Mumbai v.
Narayan Diwakar, AIR 1999 SC 2362.

188
 Similarly in K. Ponnuswamy v. State of Tamilnadu23 the accused was employed
as Lecturer in Government Arts College earning a small salary. His wife had only
small agricultural income. The financial condition of the family was such that the
accused could not even re-pay his small debts. Later the accused was elected as
M.L.A. and became Deputy Speaker of the Legislative Assembly and thereafter
Minister of Education to the Government of Tamil Nadu. During the "check period"
when the accused became a minister, he acquired in his name and in the names of
members of his family pecuniary resources and property disproportionate to his
known source of income. The Trial Court convicted the accused under Section 13(1)
(e) read with Section 13(2) of the Prevention of Corruption Act and family members
of the accused were convicted under Section 109, I.P.C. and under Section 13(1) (e)
read with Section 13(2) of the Prevention of Corruption Act. The Trial court, after
convicting the accused directed confiscation of the pecuniary resources and properties
to the extent of Rs. 77,49,337.37. On appeal, the High Court acquitted the family
members of the accused, but confirmed the conviction of the accused person. The
High Court maintained the order of confiscation in respect of the assets of the accused
and his wife and daughter.
On further appeal, the Supreme Court affirmed the decision of the Trial Court
and the High Court by holding that the prosecution has established by legal evidence
that money was transferred by the accused to his wife and daughter through his
nephew. Since it was not proved on behalf of the defense that the gifts were made by
the nephew of the accused to the wife and daughter of the accused before the check
period and after the check period, the Trial Court and the High Court were right in not
believing the case of gifts made out of sudden burst of love and affection during the
check period when the accused was minister.
The Supreme Court of India in State of West Bengal v. Shyamadas Benerjee,24
has held that if the accused ceases to be a public servant and loses his protection cover
under Section 6 of the Prevention of Corruption Act, 1947 or Section 197 of the Code
of Criminal Procedure, 1973 and is open to prosecution without obtaining sanction, it
would also necessarily mean that the Special Judge under the Special Courts Act,

23
AIR 2001 SC 2464, See also H.S. Gotla v. State, 2001 Cri LJ 2695, Vishnu KondajiJadav v. State of
Maharastra ,AIR 1994 SC 1670, State of Uttar Pradesh v. Surinder Pal Singh AIR 1989 SC 811, Ram
Babu Singh v. Addl. D.G.P. of Police 1993 Cri LJ 1253, State v. Dr. R.C. Anand and Anr., AIR 2004 SC
3693.
24
(2008) 3 SCC (Cri) 671.

189
1949 would cease to have jurisdiction over the accused in terms of Section 4 of the
Special Courts Act, 1949.
4.2.1HABITUALLY ACCEPTING ILLEGAL GRATIFICATION-
Section 13(1) of the Prevention of Corruption Act, 1988 is identical to Section 5
of the Prevention of Corruption Act,1947. Section 13(1) makes habitually accepting
or obtaining from a person for himself or another, gratification other than illegal
remuneration or agreeing or attempting to do so an offence. Such gratification is
either a reward or a motive for actions of the accused.25 This subsection is to be read
with Section 7 of the Prevention of Corruption Act which makes taking gratification
other than legal remuneration by a public servant as a motive or reward to do or
forbear to do some official act or render some service a crime. The Explanation to this
provision further stipulates that such gratification need not be pecuniary and refers to
that which cannot be lawfully demanded and that remuneration which is not permitted
by the Government.26 Section 13(1) (a) is an aggravated form of Section 7 and
punishes public servants who have habitually committed the offences under Section 7
of the Act.
The Supreme Court in Bhagwan Sahai v. State of Punjab,27 has laid down that
in order to be convicted for an offence under Section 13(1)(a) it is necessary to prove
the following elements: (1) that the accused was a public servant, (2) that he
habitually accepted or obtained from any person gratification for himself or for any
other person, (3) that he did so as a motive or reward for doing or forbearing an
official act. Thus, to fall under this provision the accused has to be a public servant
within the meaning of section 2(c). The accused also needs to have accepted or
obtained the said gratification. It has been held that such gratification may be said to
be obtained if it has been received by any means including extortion. The Supreme
Court in Madhukar Bhaskarrao Joshi v. State of Maharashtra,28 has held that when
the prosecution proves that there is voluntary and conscious acceptance of the money
then there is no further obligation on the prosecution to show through direct evidence
the demand for money.
There is also an obligation on the prosecution to prove that an offence under
Section 7 has been habitually committed. The Supreme Court in Vijay Narain Singh
25
Section 13 (1) (a) Prevention of Corruption Act, 1988
26
Ibid section 7.
27
AIR 1960 SC 487.
28
2001 Cri LJ 175 (SC).

190
v. State of Bihar,29 has held that the expression habitually means repeatedly or
persistently. It implies a thread of continuity stringing together similar repetitive acts.
In order to infer that an act is being committed habitually it is necessary to show that
they are repeated, persistent and similar and not isolated, individual and dissimilar
acts. It thus, connotes frequent commission of acts or omissions of the same kind. In
other words, a single instance will not suffice to sustain a conviction under section
13(1)(a). It is necessary to make out a number of instances of bribery spread over a
reasonable period of time. The legislature however, has not laid down how many
instances or what period of time would be sufficient or necessary to prove this
offence. However, the Courts have held that this period may be one to two years long
but should not be so wide so as to abuse the process of Court.30 The charge has to
stipulate the period during which the bribes have been taken. In the charge all the
instance and the amounts taken need not mentioned and it will not invalidate the
charge, but further particulars may be asked for.31
4.2.2 HABITUALLY ACCEPTING VALUABLE THINGS FOR INADEQUATE
CONSIDERATION-
Section 13(1) (b) of the Prevention of Corruption Act, 1988 that if any person
habitually accepts or obtains or agrees to accept or attempts to obtain for himself or
for any other person, any valuable thing without consideration or for a consideration
which he knows to be inadequate from any person whom he knows to have been, or to
be, or to be likely to be concerned in any proceedings or business transacted or about
to be transacted by him, or having any connection with the official functions of
himself or of any public servant to whom he is subordinate, or from any person whom
he knows to be interested in or related to the person so concerned.There are two issues
which need to be considered under this sub-clause is what amounts to a valuable thing
without consideration and whether receiving such objects from his subordinates are
excluded from the purview of this sub-clause. A valuable thing can be said to be
accepted or obtained without consideration and whether receiving such objects from
his subordinates are excluded from the purview of this sub-clause.
A valuable thing can be said to be accepted or obtained without consideration
when there is an agreement that no money would be demanded and all receipts and

29
AIR 1984 SC 1334
30
Birhwahuran Naik v. State, AIR 1954 SC 539.
31
Nani Gopal Mishra v. State of Bihar, AIR 1970 SC 1636.

191
reminders would be a mere formality which is not to be acted upon by either party.
However, if the goods are merely taken on credit and there is no such agreement then
even though there may not be an intention to pay it would not be a case of accepting a
valuable thing without consideration.32
On the second issue, the Supreme Court in Delhi Administration v. S.N.
Khosla,33 has held that this subsection includes within its fold not only outsiders who
are likely to be concerned in any proceeding or business transacted or about to be
transacted by the public officer but also any subordinate or any other person who is
connected with the official functions of the public servant. A subordinate also, would
have a connection to the official functions of the public servant and would thus,
satisfy the requirements of Section 13(1)(b)
4.2.3 MISAPPROPRIATION BY A PUBLIC SERVANT-
Section 13(1)(c) of the Prevention of Corruption Act, 1988 replicates Section 5(1)(c)
of the Prevention of Corruption Act, 1947. It provides that if a public servant
dishonestly or fraudulently misappropriates or otherwise coverts to his own use any
property which has been entrusted to him or allows any other person to do so then he
will be held guilty of criminal misconduct.
There are three issues which arise for consideration under this sub-section. The
first is whether Section 13(1)(c) of the Prevention of Corruption Act, 1988 repeals
Section 409 of the Indian Penal Code, 1860 and if not, then whether there is a
possibility of Article 14 of the Constitution violation when the prosecution is given
the discretion to choose which provision to proceed under. The second issue is in
relation to what amounts to dishonestly and fraudulently and the nature of such
special intention. The last issues is with respect to when misappropriation may be
proved.
Section 405 of the Indian Penal Code, 1860 deals with the offence of criminal
breach of trust and Section 409 is an aggravated form of Section 405 insofar as it
deals with the punishment in case of breach of trust by a public servant. Thus, in order
to be liable under Section 409, the ingredients of Section 405 first need to be satisfied.
The issue arises as to whether Section 13(1)(c) repeals Section 409. There was a clash
of opinions between the High Courts on this issue and this was resolved by the

32
AIR 1971 SC 1480.
33
P. Sirajuddin v. State of Madras, AIR 1971 SC 720.

192
Supreme Court in Om Prakash Gupta v. State,34 the Supreme Courts has held that
Section 5(1)(c) of the Prevention of Corruption Act, 1947 and Section 409 of the
Indian Penal Code, 1860 are not identical in essence and do not occupy the same field
and hence, the question of repeal does not arise at all. There are three points of
difference between Section 405 of the Indian Penal Code and Section 5(1)(c) of the
Prevention of Corruption Act 1947. While in the former dishonest intention is
necessary, in the letter it may be either dishonest or fraudulent intention and hence,
the letter provision is wider than the former. Second, under the Indian Penal Code,
1860 there needs to be entrustment of property, misappropriation of the same and this
has to be in violation of a law or contract in force. However, under the Prevention of
Corruption Act, only the first two are required to prove the offence of criminal
misconduct. Thus, whereas under Section 405 there are three essential ingredients to
constitute the offence, each one of them being separate and distinct, in Section 5(1)(c)
there are only two. Furthermore, under Section 5(1)(c) the gist of the offence can also
be made out if the offender allows any person so to do. The meaning of 'allows' is
different from 'willfully suffering' by the offender himself. It may mean allowing by
negligence or without any volition on the part of the offender or that there is some
kind of positive and tacit acquiescence necessary to bring home the offence. In the
Indian Penal on the other hand willfully suffering a person to do a certain thing is
contemplated. The Supreme Court held that allowing is of wider import than wilfully
suffering. Wilfully pre-supposes a conscious action, while even by negligence one can
allow another to do a thing. On the basis of these observations, the Court held that a
new offence is created under the Prevention of Corruption Act and there is no repeal
of the provisions under the Indian Penal Code.35 In State of Madhya Pradesh v.
Veereshwar Rao Agnihotry,36 it was held that since the two offences are not identical
it is possible to convict an accused under Section 409 while acquitting him for
offences under Section 5(1)(c) at the same time. However, if he has been acquitted for
offences under Section 5 then a fresh suit cannot be brought against him for offences
under Section 409.37
The next issue which needs to be considered is whether the accused public
servant can be prosecuted under both the enactments. The General Clauses Act, under
34
AIR 1957 SC 958
35
Om Parkash Gupta v. State, AIR 1957 SC 458
36
AIR 1957 SC 592
37
State of Madhya Prakash v. VeereshwarRaoAgnihotry, AIR 1957 SC 592

193
Section 26 contemplates that when an act or omission constitutes an offence under
two or more enactments, then he shall be liable to be prosecuted and punished under
only one of these and not for all. In Amerendra Nath Roy v. The State,38 the Court
held that the prosecutor has a choice to decide which of the two enactments to
proceed under when the held that the prosecutor has a choice to decide which of the
two enactments to proceed under when the act or omission falls under both
enactments. The court held that it is only when the prosecution decides to process
under the Prevention of Corruption Act does the question of sanction arise and not
otherwise. It was further held that there is no discrimination as there is an implied
basis of classification present insofar as those public servants alleged or suspected to
be corrupt who cannot be brought within the law by available evidence and who can
only be brought justice by certain rules of presumption are intended to be prosecuted
under this enactment.39 However, in Basir-ul-Huq v. State of West Bengal,40 it was
held that the requirements of obtaining a sanction cannot be overcome by charging a
person of an offence to which sanction does not apply and later convicting him of an
offence which requires sanction for prosecution on the ground that the latter is a
minor lesser offence than the former. This would amount to circumventing the
process of law. The maximum punishment which can be imposed under the
Prevention of Corruption Act, 1988 is 7 years while that under the Indian Penal Code,
1860 is 10 years. This can be justified on the ground that in the former presumptions
aid the Court in arriving at the guilt of the accused while in the latter there are no such
presumptions and the prosecution discharges the entire burden of proving breach of
trust by the public servant. Furthermore, the elements which need to be proved under
the latter are greater than the former justifying a harsher punishment. The prosecution
has to take into account the gravity of the offence committed and if the penalty under
the Prevention of Corruption Act would be insufficient then the case will proceed
under the Indian Penal Code.41
Section 24 of the Indian Penal Code defines when an act is said to be done
dishonestly. An act is said to be done dishonestly when it is done with an intention to
cause wrongful gain to one person and wrongful loss to another. On the other hand an
act is done fraudulently as per Section 25 of the Indian Penal Code when it is done
38
1955 Cri LJ 784
39
Amerendra Nath Roy v. The State 1955 Cri LJ 784
40
AIR 1953 SC 293
41
Om Parkash Gupta v. State AIR 1957 SC 458

194
with an intention to defraud another. The difference between an act done dishonestly
and an act done fraudulently is that if there is an intention by the deceit practiced act
wilfully exposes anyone to dishonestly, but even in the absence of such an intention if
the deceitful act wilfully exposes surrounding the risk of loss, there is fraud.42 It has
also been held that the facts and circumstances surrounding the alleged
misappropriation and conversion for own use need to be considered by the Court. It
was held that at times mistakes may be committed and at times the same may be bona
fide and not dishonest or fraudulent.
On the last issue as to when misappropriation is said to take place it has been
held that criminal misappropriation is said to take place when certain goods are
received and there is a duty to account for the same but this is not done by the public
servant then the onus lies on him to explain the loss as such information is within his
special knowledge. If the accused gives false information then this will be considered
against him at the time of judgment. The Court also held that the manner of
misappropriation need not be proved. But rather, it is the intention which is important
and needs to be proved.43
4.2.4 OBTAINING VALUABLE THINGS BY INAPPROPRIATE MEANS-
Section 13(1)(d) of the Prevention of Corruption Act, 1988 makes obtaining valuable
things or pecuniary advantage by a public servant, for himself or another, by corrupt
or illegal means or by abusing his position as a public servant or without public
interest an offence. The pecuniary advantage so obtained for the purpose of this
provision is not confined to cash only.44 The issues which arise for consideration
under the present sub-clause include the following. First, how this is provision
different from Section 7. Second, whether dishonest intention is necessary when there
is an abuse of position. And last, whether such act needs to be done in the discharge
of his duty.
This provision is similar to Section 7 in certain respects in terms that both are
concerned with gratification received by a public servant. However, the Supreme
Court in differentiating between the two held that in the case of Section 13(1)(d) it is
necessary that a demand is made by the public servant while under Section 7, no such
demand needs to be made. This difference is due to the fact that Section 13(1)(d) uses

42
Akk. v. Veeraiah, 1957 Cri LJ 1078
43
Krishan Kumar v. Union of India, AIR 1959 SC 1390
44
J.Singh, A Handbook of Socio Economic Offences 311 (1993)

195
the term 'obtain' alone which implies a demand on the part of the public servant.45
Such a demand may be merely an understanding between the person who demands
and the person who is to pay. It may be gathered from the facts and circumstances of
the case at hand and the demand need not be made in plain or clear words but may be
implicit.46 However, to bring home an offence under this sub-clause it is necessary to
prove that there was acceptance of the money so demanded. Proof of acceptances is a
rule of prudence to corroborate the version of the prosecution.47
The second issue on the intention which is necessary has been dealt with by the
Supreme Court in M. Narayan Nambiar v. State of Kerala,48 The Supreme Court here
held that abuse of position refers to a misuse of position i.e. use of one's position for
something for which is not intended. The Supreme Court has held that dishonesty is
implicit in the word abuse and such intention is necessary to constitute an offence
under this provision. Whether he abused his position or not depends upon the facts of
each case. Thus, every benefit obtained by a public servant for himself, or for any
other person, by abusing his position as a public servant falls within the mischief of
the said clause and the case of a public servant causing wrongful loss to the
Government for the benefit of a third party squarely falls within the scope of this
provision.
The Supreme Court has held that it not necessary that the public servant in
question, while misconducting himself should have done so in the discharge of his
duty. This is because it is anomalous to say that a public servant has misconducted
himself in the discharge of his duty as duty and misconduct do not go together. Thus,
if a person has misconducted himself as a public servant, it would not ordinarily be in
the discharge of his duty, but the reverse of it.49 This interpretation does not enlarge
the scope of the provision but rather is a literal interpretation of the terms.
4.2.5 POSSESSION OF DISPROPORTIONATE ASSETS-
Section 13(1) (e) of the Act provides that if a public servant or any person on his
behalf has been in possession of pecuniary resources or property disproportionate to
his known sources of income which he cannot satisfactorily account for during the
period of his office then such a public servant will be held liable for professional
misconduct.50

45
State v. A Parthtion, AIR 2007 SC 51, See also State of U.P. v. KanhayaLal 1976 Cri. L.J. 1230(UP).
46
DattarayaKrishmasi Joshi v. State of Maharastra,1991 Cri LJ 2097(Mah).
47
MK Harshan v. State of Kerla, AIR 1995 SC 2178
48
AIR 1963 SC 1116.
49
DhaneshwarNorianSaxena v. The Delhi Administration, AIR 1962 SC 195
50
Section 13(1) (e) of the Prevention of Corruption Act 1988

196
 The issues which need to be considered under this sub-clause are three-fold. The
first is with reference to what are the known sources of income. The second is in
relation to when can such assets be said to be disproportionate and not satisfactorily
accounted for and the last is relating to the burden on the prosecution.
The explanation to Section 13(1)(e) stipules that known sources of income refers
to the means of income received from any lawful source and which has been
intimated as per the rules and laws applicable to public servants. However, the
question arises as to whom do such sources of income have to be known to. The
Supreme Court in Hindustan Petroleum Corporation Ltd. v. Sarvesh Berry,51 has held
that the expression known sources of income is related to the sources known to the
authorities in the course of their investigations and not the accused. This is due to the
fact that how the assets were acquired and from what source of income is within the
special knowledge of the accused and the prosecution cannot be expected to know the
same and hence, those which are within the knowledge of the prosecution are taken
into account for the purpose of understanding the meaning of the term known sources
of income.52
On the second issue the Supreme Court has held in State of Maharahra v.
Pollonji Darabshawdaruwalla,53 that the legislature thought it fit not to specify the
proportion of income that would be liberal view may be taken by Courts in deciding
the excess of assets over receipts which is permissible. However, such a view should
not be taken so as to defeat the ends of justice. The Supreme Court also considered
the choice of the period during which the assets may be considered to be
disproportionate and held that this period need not be spread out for the entire stretch
of anterior service of the public servant. It also held that there can be no general rule
to decide such period. The only guideline given by the Supreme Court on this point is
that the period should be such as to enable a true and comprehensive picture of the
known sources of income which are alleged to be so disproportionate.54

51
(2005) 10 SCC 471, See also State Inspector of Police, Visakhapatnam v. Surya Sankaram Karri
(2006) 3 SCC (Cri) 225
52
C.S.D. Swamy v. The State, AIR 1960 SC 7, M. Krishna Reddy v. State, Deputy Superintendent of
Police, Hydrabad, AIR 1993 SC 313.
53
AIR 1996 SC 361
54
State of Maharastra v. Pollonji Darabshaw Daruwalla, AIR 1988 SC 88

197
 The last issue has been dealt with by the Supreme Court in Central Bureau of
Investigation v. Shri S. Bangarappa,55 where it held that the prosecution has the
burden to prove that the burden to prove that the pecuniary assets acquired by the
public servant are disproportionately larger than his known sources of income and
once this has been established then the onus shifts to the accused public servant to
prove that there is no excess and to account for the same satisfactorily. The offence is
proved when the public servant fails to account for such excess.
4.2.6 SENTENCING POLICY-
Section 13(2) provides for the punishment which is to be imposed when the
accused has been found guilty of criminal misconduct under Section 13(1). Such a
public servant is punishable with imprisonment for a term between 1 and 7 years and
also liable to fine. Under the previous Act of 1947, the Court had the discretion to
award imprisonment for a term less than 1 year after recording special reasons for the
same. However, the legislators thought it fit to exclude such discretion as it was being
overused and the high standing of the accused was being considered as an adequate
ground to reduce the sentence of the accused to less than one year. This should not be
a ground for reducing the sentence of the accused as public servants have been
entrusted with duties which ought to be discharged in the interest of the public and not
in such a manner as to suit their own interests. In fact the higher the authority, the
greater his influence and hence, he should not be treated leniently due to the position
and standing that he occupies. Thus, the change in the provision is a welcome
measure and ensures that public servants have to serve a minimum of 1 year of
imprisonment when found guilty of the offence of criminal misconduct.
There are two issues that need to be considered in reference to the sentencing
policy adopted by Courts. The first is with reference to the mitigating factors which
can be considered by the Court and the second relates to whether leniency can be
granted in the case of trap cases.

55
2001 Cri LJ 111 (SC), See also State (Delhi Administration) v G.P. Nayar 1974 Cri LJ 1363, B.C.
Chaturvedi v. Union of India and Others, AIR 1996 SC 484, S.K. Puri and Ors. v. State and Anr. 2004
Cri LJ 3198, State of Maharastra v. Wasudeo Ramchandra Kaidalwar, AIR 1981 SC 1186, Jatinder
Singh v. State 2001 Cri LJ 11, State Karnataka v. C.S. Krishnamurthy 2004 Cri LJ 3440(Kar), Sajjan
Singh v. State of Punjab, AIR 1964 SC 464, State of Karnataka v. C.S. Krishnamurthy2004 Cri LJ
3440(Kar).

198
 On the first issue, the Supreme Court in A. Wati v. State of Manipur,56 has held
that delay can be the only possible ground for mitigating of the sentence which is to
be awarded. It also held that investigation and trial of such cases does take time due to
the number of witnesses that are called before the Court and hence, a period of 5 years
passing will not be a mitigating factor. The Court further held that accused being a
senior IAS officer and holding a high post, having several dependents, having already
lost his job and the fact that this is a first time offence are not to be considered as
mitigating factors by the Court.57 However, the Supreme Court has not been
consistent in its stand and earlier in M. W. Mohiuddin v. State of Maharashtra,58 it
was held that since accused had spent some time in jail, the investigation began 14
years ago, he lost his job and supported a large family, the sentence ought to be
reduced to the time already served. The Court held that the circumstances of the
appellant need to be taken into consideration. The course taken by the Supreme Court
in later decisions is more in line with the objected of this Act which is to ensure that
the provisions are strengthened and that those who violate the provisions are not let
off easily.
The Supreme Court in State of Maharashra v. ShambhuDayalNagri,59 has held
that cases in which traps are laid out to nab a public servant do not warrant any
leniency, as corruption by public servants is a gigantic problem which has spread to
all activities and has an adverse impact on the entire nation. The Court held that the
only way to get rid of this scourge is by taking a strict stand and not being lenient in
such cases. It has been held by the Courts that there is no scope for leniency under the
Act and the minimum of 1 year imprisonment as prescribed by Section 13(2) needs to
be awarded.
4.3 THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT,
1985-
The Narcotic Drugs and Psychotropic Substances Act, 1985 prescribes stringent
punishments. Hence a balance must be struck between the need of the law and the
enforcement of such law on the one hand and the protection of citizens from
oppression and injustice on the other. The provisions under the special Act are to be
followed meticulously since the punishments are stringent. The judgments of the
56
AIR 1996 SC 361.
57
Ibid.
58
(1995) 3 SCC 567
59
AIR 2007 SC 163

199
Supreme Court of India and various High Courts are guiding force and have been
referred in detail.
One of the formalities that has to be observed is that the searching officer should
give his personal search to the witnesses before entering the premises to be searched
and should similarly search the witnesses also in the presence of one another.60
4.3.1 PROCEDURE OF PERSONAL SEARCH UNDER NDPS ACT-
Provision of Section 50 of Narcotic Drugs and Psychotropic Substances Act
1985 is mandatory-
The Supreme Court of India in Ali Mustafa Abdul Rehman Moosa v. State of
Kerla,61where Sub-Inspector of Police received reliable information that a foreigner
was waiting in the first class waiting room with huge quantity of charas. The SI of
police went to the first class waiting room and found one Ali Mustafa, a Kuwaiti
National. He was searched and 780gms. of charas was recovered from his possession.
The accused Ali Mustafa was convicted and sentenced to imprisonment for 11 years
and to pay fine of Rs. one lakh by the Court of Sessions. The matter went up to
Supreme Court in appeal.
The Supreme Court has set aside the order of conviction and sentence on the
ground that the provisions of Section 50 of NDPS Act were not complied with. It is
held that when a police officer receives information that a person is in possession of
drugs, it is the duty of the police officer to give option to the person as to whether he
desires to be searched in the presence of a Gazetted officer or a magistrate as
envisaged by Section 50. The failure to provide that option to the accused vitiates his
conviction. The provisions of Section 50 are mandatory.
However in State of Punjab v Balbir Singh,62 the Supreme Court has held the
if a police officer without any prior information as contemplated under the provisions
of NDPS Act makes a search or arrests a person in the normal course of investigation
into an offence or suspected offence as provided under the provisions of Cr.P.C. and

60
State of Bihar v. Kapil Singh AIR 1969 SC 53, See also R. Mayilvahanam v. Intelligence Officer
Narcotics Control Bureau, 2008 Cri LJ 4425, Karnail Singh v. State of Haryana (2009) 3SCC (Cri) 887,
Piara v. State of Punjab 2009 Cri LJ 501(P. & H.) , Hamidibhai Azambhai Malik v. State of Gujrat,
(2009) 3SCC 403, A. Rajeshwar Patra v. State 1997 Cri LJ 534 (Orissa), Rekha Parameshwar v.
Assistant Collector of Customs 1992 Cri LJ 901, Nathu Ram v State 1990 Cri LJ 809 (Delhi),Rajendra
Kumar Mehta v. Abhijit Das Gupta 1999 Cri LJ 4733(Cal.)
61
AIR 1995 SC 244, See also Karam Singh v. State of Punjab, (1987) 2 CLR 240, Dr. Pratap Singh v.
Director of Enforcement AIR 1985 SC 989.
62
AIR 1994 SC 1872.See also State of Gujarat v. Jaysukhbhai Ramjibhai Chavda & Anr. 2014 Cri LJ 233
(Guj.)

200
when such search is completed at that stage section 50 of NDPS Act would not be
attracted and the questions of complying with the requirements there under would not
arise. If during search or arrest there is a chance recovery of any narcotic drug or
psychotropic substance then the police officer, who is not empowered, should inform
the empowered officer who should thereafter proceed in accordance with the
provisions of the NDPS Act. Then the empowered officer shall carry out investigation
as per provisions of NDPS Act from that stage onwards.
Following the same trend in Bharatbhai Bhagwanjibhai v. State of Gujrat,63
where the accused person started running away from the bus stand on seeing the
police party. On mere suspicion the police officers chased the accused, intercepted
him and searched his person in presence of two witnesses. The search led to the
disclosure of small plastic bag containing charas of about 12 grams in weight. The
Special Court convicted the accused person under the Provisions of Narcotic Drugs &
Psychotropic Substances Act. 1985 and sentenced him to suffer imprisonment for 10
years and fine of Rupees one lakh. On appeal, the High Court affirmed the conviction
.On further appeal before the Supreme Court, it was contended that the mandatory
provision of Section 50 the Narcotic Drugs and Psychotropic Substances Act was
violated in conducting search of person of the accused by the police officers and as
such the accused person is liable to be acquitted of the charge.
By upholding the conviction and sentence of the accused person and by
repelling the contention raised on behalf of the defence, it is held by the Supreme
Court that the provision of Section 50 of NDPS Act will not be attracted if the
empowered officer conducts search of person without any prior information
contemplated by Section 42 of the Act or causes arrest and search of a person during
the normal course of investigation into an offence and thereby contraband articles are
recovered. It is also held by the Supreme Court that the question of compliance with
the safeguards prescribed under Section 50 of the NDPS Act does not arise when
there is chance recovery.

63
AIR 2003 SC 7.

201
Search of person under Section 50 of NDPS Act-not applicable to search of
handbags:-
The Supreme Court of India in Namdi Francis Nwazor v. Union of India,64 has
held that at the relevant point of time, the bag from which the incriminating articles
were found was not in the actual possessions of N.F. Nwazor when he was searched at
the airport. Section 50 applies to cases of search of any person and not search of any
article in the sense that the article is at a distant place from where the offender is
actually searched. This position becomes clear from Section 50(4) which in terms
says that no female shall be searched by anyone excepting a female. Such a restriction
would not be necessary for searching the goods of a female which are lying at a
distant place at the time of search. It is another matter that the said article is brought
from the place where it is lying to the place where the search takes place but that
cannot alter the position in law that the said article was not being carried by the
accused on his or her person when apprehended. However, if any person is carrying a
handbag or the like and the incriminating article is found there from, it would be a
search of the person of the accused requiring compliance with Section 50 of the
NDPS Act. So under the facts and circumstances of the instant case, it is held by the
Supreme Court that the provisions of Section 50 NDPS Act are not attracted and non-
compliance with that provision was not fatal to the prosecution. As a result the appeal
preferred by the accused was dismissed.
Following the same trend in Sarjudas and Another v. State of Gujrat,65 where
Sarjudas and another person were convicted under Section 20 (b) (ii) of NDPS Act as
they were found carrying charas weighing 7 kg and 419 gms in a bag on the scooter
which they were riding. The conviction and sentence was affirmed by the High Court.
On appeal before the Supreme Court it is contended on behalf of the defence that the
accused persons were not informed of their right under Section 50 of NDPS Act that
they were entitled to be examined in the presence of a Gazetted Officer or a
Magistrate for the search, and as such the evidence regarding recovery of charas from
their possession could not have been relied upon. Repelling the contention on
behalf of the defence it is held by the Supreme Court that the provision of Section 50

64
1998 SCC (cri.) 1516.See also Bata Krushna v. State of Orissa 2011 Cri LJ 6 (Orissa), Bhagwan
Dulabhai Jadav v. State of Maharastra 1963 Cri LJ 694 , Binder Singh v. State of Punjab 2010 (4)
Crimes 165 (P.&H.), Feru Verma v. State of Madhya Pradesh 2010 Cri LJ 878 (Chhatt.), Ganesh
Bhandari v. State of Goa 2010 Cri LJ 327 (Bom.)
65
1999 SCC (Cri.) 1501.See also Jagrup Singh v. State of Punjab 2011 (1) R.C.R. (Cri) 214 (P.&H.),
Jeevraj Ram v. State of Rajasthan 1991 Cri LJ 236 (Raj.), K.K. Ashraf v. State of Kerla 2010 Cri LJ 3141
(Ker.), Kakadiya Bhagwanbhai Arjunbhai Patel v. State of Gujrat 2011 Cri LJ 53 (Guj.), Kamaal Chand
v. N.C.B. Chandigarh, 2008 Cri LJ 516 (H.P.)

202
of the NDPS Act is not applicable as the charas was not found on the person of the
accused, but it was found kept in a bag which was hanging on the scooter on which
they were riding.
Deviating from the above trend in Kalemba Tumba v. State of Maharastra,66 it
is held by the Supreme Court that the search of a baggage of a person is not the same
thing as search of the person himself. If a person is carrying a bag and any narcotic
drug and psychotropic substance is found from it, the provisions of Section 50 of
NDPS Act cannot be attracted for search of the said baggage carried by the person.
The Supreme Court of India in State of Punjab v. Makhan Chand,67 has that
Section 50 of the NDPS Act would not apply to a situation where the search
undertaken is not to the person of the accused but of something carried in his hand. It
is also held by the Supreme Court that if an accused person, on seeing a patrolling
police party, starts running, which excites the suspicion of the policy party, as a result
of which, he is apprehended and searched, the question of compliance with the safe
guards prescribed under Section 50 of the Act would not arise.
Following the above trend in State of H.P.v. Pawan Kumar,68 it is held by the
three Judge-Bench of the Supreme Court that the word 'person' would mean a human
being with appropriate covering and clothing and also footwear. A bag, briefcase or
any such article or container etc. can, under no circumstances, be treated as a body of
a human being. Therefore, it is not possible to include these articles within the ambit
of the word 'person' occurring in Section 50 of the N.D.P.S. Act. An incriminating
article can be kept concealed in the body or clothing or covering in different manner
or in the footwear. While making a search of such articles, it will certainly come
within the ambit of the words 'search of person'. Thus, while in the process of search
the human body comes into contact or shall have to be touched by the person carrying
out the search, it will be search of a person. In view of the above proposition of law
laid down by the Supreme Court, Section 50 of N.D.P.S. Act can have no application
on the facts and circumstances of the present case, as opium was allegedly recovered
from the bag, which was being carried by the accused.

66
1999 SCC (Cri.) 1422, See also Kuldeep Singh v. State of Punjab 2011 Cri LJ 2672 (SC), Kothakota
Pappayya v. State 1975 Cri LJ 1784 (A.P.), Leo Deo v. State of West Bengal 2010 Cri LJ 881 (Cal.),
Laxman Santrao Musale v. State of Maharastra 2010 Cri LJ 63 (Bom.), YogeshTyagi v. State 2004 Cri
LJ 3907.
67
2004 SCC (Cri.) 830.
68
2005 SCC (Cri.) 943.

203
4.3.2 MANNER OF COMPLIANCE OF PROCEDURE OF PERSONAL
SEARCH UNDER NDPS ACT-
In Pon Adithan v. Dy. Director Narcotics Control Bureau, Madras69it was
contended before the Supreme Court that the mandatory requirement of informing the
accused about his right under Section 50(1) of N.D.P.S. Act to be searched in
presence of a Gazetted Officer or a Magistrate was not complied with only on the
basis of evidence of searching officer. By rejecting the above contention of the
defence and by upholding the order of conviction and sentence of the Courts below, it
is held by the Supreme Court that it cannot be laid down as a proposition of law that
in the absence of an independent evidence or any other supporting documentary
evidence, oral evidence or a witness conducting the search cannot be regarded as
sufficient for establishing compliance with the requirement of Section 50(1) of
N.D.P.S. Act.
4.3.3 COMPLIANCE OF MANDATORY PROVISIONS OF LAW FOR
PERSONAL SEARCH UNDER NDPS ACT-GUIDELINES OF THE APEX
COURT
There was divergence of opinion between different benches of the Supreme
Court with regard to the ambit and scope of Section 50 of the Narcotic Drugs and
Psychotropic Substances Act, 1985, and in particular with regard to the availability of
evidence collected by investigating officer during search and seizure conducted in
violation of the provision of Section 50 of N.D.P.S. Act. The Constitution Bench of
Supreme Court headed by Hon'ble Justice A.S. Anand in State of Punjab v. Baldev
Singh,70 has issued the following instructions:
(i) That when an empowered officer or a duly authorized officer acting on
prior information is about to search a person, it is imperative for him to
inform the person concerned of his right under sub-section (1) of Section
50 of being taken to the nearest Magistrate or Gazetted Officer for making
the search. Such information may not necessarily be in writing.
(ii) That failure to inform the person concerned about the existence of his right
to be searched before a Gazetted Officer or a Magistrate would cause
prejudice to an accused.

69
AIR 1999 SC 2355.
70
AIR 1999 SC 2378

204
 (iii) That a search made by an empowered officer, on prior information,
without informing the person of his right that if he so requires, he shall be
taken before a Gazetted Officer or a Magistrate for search and in case he
so opts, failure to conduct his search before a Gazetted Officer or a
Magistrate, may not vitiate the trial but would render the recovery of illicit
article suspect and vitiate the conviction and sentence of an accused, where
conviction has been recorded only on the basis of possession of illicit
article recovered from the accused in violation of provision of Section 50
of N.D.P.S. Act.
(iv) That the use of evidence collected in breach of the safeguards provided by
Section 50 at the trial, would render the trial unfair.
(v) That whether or not the safeguards provided in Section 50 of N.D.P.S. Act
have been duly observed would have to be determined by the Court on the
basis of the evidence led at the trial. Without giving an opportunity to the
prosecution to establish, at the trial, that the provisions of Section 50 of
N.D.P.S. Act and the safeguards provided therein were duly complied
with, it would not be permissible to cut short a criminal trial.
(vi) That an illicit article seized from the person of an accused during search
conducted in violation of the safeguards provided in Section 50 of
N.D.P.S. Act cannot be used as evidence of proof of unlawful possession
of the contraband article by the accused, though any other material
recovered during that search may be relied upon by the prosecution, in
other proceedings, against an accused notwithstanding the recovery of that
material during an illegal search.
(vii) That a presumption under Section 54 of N.D.P.S. Act can only be raised
after the prosecution has established that the accused was found to be in
possession of the contraband in a search conducted in accordance with the
mandate of Section 50 of the said Act. An illegal search cannot entitle the
prosecution to raise a presumption under Section 54 of N.D.P.S. Act.
It was held by the Supreme Court that the end result of a criminal case is
important, but the means to achieve it must remain aboveboard. The remedy cannot
be worse than the disease itself. The legitimacy of the judicial process may come
under cloud if the Court is seen to condone acts of lawlessness conducted by the
investigating agency during search operations and may also undermine respect for the
205
law and may have the effect of unconscionably compromising the administration of
justice.
Similarly in State of Punjab v. Balbir Singh,71 the Supreme Court of India in has
given the following guidelines for the Trial Courts dealing with offences under
N.D.P.S. Act:
(i) If a police officer without any prior information as contemplated under the
provisions of N.D.P.S. Act makes a search or arrests a person in the
normal course of investigation into an offence under the provisions of
Cr.P.C., Section 50 of the N.D.P.S. Act would not be attracted.
(ii) Under Section 41(1) of N.D.P.S. Act an empowered Magistrate can issue
warrant for the arrest or for the search in respect of the offences punishable
under chapter IV of the said Act, when he has reason to believe that such
offences have been committed or such substances are kept concealed in
any building, conveyance or place. If such arrest or search is made under
the provisions of N.D.P.S. Act by anyone other than the empowered
officers, the same would be illegal.
(iii) Under Section 41(2) of N.D.P.S. Act only the empowered officer can give
authorization to his subordinate to carry out the arrest of a person or search
mentioned therein. Any contravention of the said provision of law would
affect the prosecution case and vitiate the conviction.
(iv) Under Section 42(1) of N.D.P.S. Act the prior information received by the
empowered officer should necessarily be taken down in writing. If he has
reason to believe from personal knowledge that offences under chapter IV
of N.D.P.S. Act have been committed or materials which may furnish
evidence of commission of such offence are concealed in any building etc.,
he may carry out the arrest or search without a warrant between sunrise
and sunset, and this provision does not mandate that he should record his
reasons of belief. However, if such officer has to carry out search between
sunset and sunrise, he must record the grounds of his belief. The
provisions are mandatory to the extent mentioned above and any
contravention of the said would affect the prosecution case and vitiate the
trial.

71
AIR 1994 SC 1872.

206
 (v) Under Section 42(2) of N.D.P.S. Act the empowered officer who takes
down any information in writing or records the grounds under proviso to
Section 42 (1) of the said Act should forthwith send a copy thereof to his
immediate official superior. If there is total non-compliance of the
provision, the same would affect the prosecution case and to this extend it
is mandatory. If there is delay whether it was undue or properly explained
will be a question of fact in each particular case.
(vi) If a police officer being an empowered officer conducting investigation
into offences under provisions of Cr.P.C., fails to comply with provisions
of Section 100 and 165 Cr.P.C., such failure would only amount to an
irregularity.
(vii) If an empowered officer under Section 41(2) of N.D.P.S. Act carries out a
search, he would be doing so under Section 100 and 165, Cr.P.C., and if
there is no strict compliance with the provisions of Cr.P.C. the search
would not per se illegal and would not vitiate the trial.
(viii) It is obligatory on the part of empowered officer or authorized officer
acting under Section 41 or 42 of N.D.P.S. Act to inform the person
concerned of his right under Section 50 of the said Act before conducting
search of the person and non-compliance would affect the prosecution case
and vitiate the trial.
4.3.4 MANDATORY PROVISIONS OF SECTION 42(2) OF NDPS ACT NOT
APPLICABLE TO GAZETTED OFFICER CONDUCTING ARREST,
SEARCH AND SEIZURE-
The Supreme Court in G. SrinvasGoud v. State of A.P.,72 has held that the
function of arrest, search and seizure carried out under Section 42(1) is by the officers
who do not have warrants or authorization in their hands before proceeding to take
action. It is also held that the requirement under Section 42(2) need not be extended to
arrest, search and seizure by the officers of Gazetted rank. According to the Supreme
Court, the requirement of informing the immediate superior under Section 42(2) has
to be confined to cases where the action is taken by officers below the rank of
gazetted officers without authorization. As a result, the appeal was dismissed by the
Supreme Court and the conviction and sentenced of the accused was upheld.

72
AIR 2005 SC 4455.See also Hamidbhai Azmbhai Malik v. State of Gujrat (2009) 3SCC 410, Rajeshwar
Patra v. State 1997 Cri LJ 534 (Orissa), Sarju v. State of U.P. 2009 Cri LJ 4123 (SC), BalveerKaur v.
State of Punjab 2009 Cri LJ 4139 (SC), Ashok Kumar Sharma v. State of Bihar 2007 Cri LJ 1734 (Raj.)

207
4.3.5 PROVISIONS OF SECTION 50 OF NDPS ACT COMPLIED WITHOUT
ANY BIAS, WHEN SEARCH CONDUCTED IN PRESENCE OF
DEPARTMENT GAZETTED OFFICER-
In State of Rajasthan v. Ram Chandra,73on 0.8.09.1995 Prem Shankar Meena,
S.H.O. of Kotwali police station received information about illicit trafficking in
narcotic substances and rushed to that place pointed out by the informer and
apprehended the accused Ram Chandra. The Deputy Superintendent of Police also
reached the place of occurrence. The SHO informed the arrested person of his right to
have his search conducted either in presence of Deputy Superintendent of Police or by
any Magistrate. On consent of the accused his person was searched in presence of
Deputy Superintendent of Police and 570 grams of opium was recovered from his
possession in presence of the witnesses. The accused was convicted under sections 8
and 18 of N.D.P.S. Act and sentenced him to undergo imprisonment for ten years and
to pay a fine of Rs. 1,00,000/-. On appeal the High Court of Rajasthan reversed the
decision of the trial court by holding that the provisions of Section 50 of N.D.P.S. Act
were violated as the search of the person of the accused was conducted in presence of
the Deputy Superintendent of Police, who was essentially a member of the raiding
party and not an independent Gazetted Officer. The decision of the High Court was
challenged before the Supreme Court by the State of Rajasthan by filing Special
Leave Petition.
By allowing the appeal and by restoring the order of conviction it is held by the
Supreme Court that the stand taken by the High Court that the Gazetted Officer
belonging to the raiding party cannot met the requirement of Section 50 of N.D.P.S.
Act is not legally tenable. The High Court was not correct in holding that the search
of the person of the accused in presence of the Deputy Superintendent of Police being
a Gazetted Officer was not in compliance with the requirements of Section 50 of
N.D.P.S. Act,. Accordingly, the law laid down by the Supreme Court is that the
Gazetted Officer belonging to the department of the persons conducting raid will meet
the requirements of Section of N.D.P.S. Act.

73
2005 SCC (Cri) 1010, See also Subhash Chandra Jana v. Ajibar Mirdha 2011 Cri LJ 257 (Cal.), Sucha
Singh v State of Haryana 2011 (1) R.C.R. (Cri) 78 (P.&H.), Sukhdev Singh v. State of Punjab 2011 (1)
R.C.R. (Cri) 486 (P&H.), Surender v. State of Haryana 2011 (1) R.C.R. (Cri) 370 (P.&H.)

208
4.3.6 PROVISIONS OF SECTION 50 OF NDPS ACT NOT APLLICABLE TO
SEARCH OF HOUSE-
The Special Court, Puri, Orrisa in State of Orrisa v. S. Mohantyconvicted the
accused S. Mohanty and T.P. Mohanty for committing offence under Section 25 of
Narcotic Drugs and Psychotropic Substances Act, 1985 for possessing charas without
valid documents and sentenced each of them to undergo rigorous imprisonment for 10
years and to pay a fine of Rs. 1 lakh. The raid was conducted in the house of S.
Mohanty and contraband articles were seized from the house of S. Mohanty and from
personal search of T.P. Mohanty. The High Court acquitted both the accused persons
of the charge under Section 25 of N.D.P.S. Act by holding that the search was
conducted without telling the accused persons of their right to get themselves
searched in presence of a Magistrate or Gazetted Officer as per provisions of Section
50 of N.D.P.S. Act.
On appeal, the Supreme Court affirmed the order of acquittal of the accused T.P.
Mohanty for non-compliance of provisions of Section 50 of N.D.P.S. Act, but set
aside the order of acquittal of the accused S. Mohanty. By restoring the order of
conviction and sentence imposed on S. Mohanty by the Special Court, the Supreme
Court held that Section 50 has no application to the search of the house of the accused
for recovery of contraband articles. Moreover, according to the Apex Court, the raid
was conducted in this case under Section 41 of N.D.P.S. Act and not under Section 42
of the said Act as held by the High Court74.
Following the same trend in Gurbax Singh v. State of Haryana,75it is held by the
Supreme Court is that there is no question of following procedure under Section 50 of
Narcotic Drugs and Psychotropic Substances Act, 1985 when nothing was recovered
by way of search of person of the accused but by way of search of the gunny bag
which he was holding. It is further held by the Supreme Court that the decision
rendered by the Supreme Court in "State of Punjab v. Jasbir Singh,76" wherein it was
held that though poppy husk was recovered from the bags of the accused, he was

74
2000 Cri LJ 3469 See also Mukhtiar Singh v. State of Punjab 1996 Cri LJ 1773, Deepa Ghosh v. State
1996 Cri LJ 3812, Jagan Nath v State of Punjab 1997 Cri LJ 608 (P.&H.), Partap Singh v State of
Haryana, 2009 (1) P.L.R. 201(P.&H.), State of Himachal Pradesh v. Sudarshan Kumar 1989 Cri LJ
1422(H.P.)
75
AIR 2001 SC 1002, See also State of Rajasthan v. Daulat Ram 2005 Cri LJ 4117 (SC), Pochireddi
Sivaprasad Rao v State of Andhra Pradesh 2001 Cri LJ 1979, Gurmukh Singh v. State of Punjab 2008
(2) R.C.R (Cri) 444 (P.&H.)
76
(1996) 1 SCC 288.

209
required to be informed about his right to be searched in presence of a Gazetted
Officer or a Magistrate, stood overruled. It is also held by the Supreme Court that
when an empowered officer or duly authorized officer acting on prior information is
about to search a person as distinguished from search of premises, it is imperative for
him to inform the person concerned of his right under sub-section (1) of Section 50 of
being taken to the nearest Gazetted Officer or Magistrate for making the search.
4.3.7 RECOVERY OF CONTRABAND ARTICLE UNDER NDPS ACT NOT
VITIATED FOR NON AVAILABILITY OF INDEPENDENT WITNESSES-
Dealing with the issue of question the Apex Court in Jal Singh v. State of
Haryana,77where the bedding carried by the accused Jal Singh was searched and
found to contain 10kg of opium. The Investigating Officer and other witnesses
disclosed that many independent witness had been requested to witness the search, but
all of them refused. The evidence of Investigating Officer and other witnesses on this
point remained unshaken despite cross-examination. The conviction and sentence of
the accused were upheld by the Supreme Court in spite of non-availability of
independent witness of search & seizure.
Similarly in Ashok Kumar v. State of Haryana,78 the accused Ashok Kumar was
searched in presence of a Magistrate while alighting from a bus and was found to
possess 5 kg & 500 gms of charas. The Magistrate was examined as a witness, but he
was unable to identify the accused during trial. The Investigating Officer identified
the accused during trial. The accused was convicted under Section 20 of NDPS Act
by the Special Court. The High Court also affirmed the conviction and sentence
passed by the Trial Court. It is contended on behalf of the defence before the Supreme
Court that the fact of seizure of contraband article should be disbelieved in the
absence of independent seizure witness. The Supreme Court upheld the conviction
and sentence of the accused person even in the absence of independent witness of
search & seizure. Similarly in Abdul Rashid Ibrahim Mansoori v. State of Gujarat,79it
is held by the Supreme Court that the provisions of Section 50 of N.D.P.S. Act cannot
be attracted for search of vehicle on suspicion of transporting contraband articles.

77
2000 SCC (Cri) 337.See also Sohan Lal v. State of M.P. 2010 Cri LJ 373 (H.P.), State of H.P. v. Deepak
Sharma 2011 Cri LJ 132 (H.P.), State of H.P. v. Tek Chand 2010 Cri LJ 2143 (H.P), State of Karnataka
v. Dondusa Namasa Baddi 2010 (4) R.C.R. (Cri) 367 (SC)
78
2000 SCC (Cri) 506.
79
,AIR 2000 SC 821.

210
4.3.8 RECORDING OF REASONS NOT REQUIRED FOR SEARCH OF
PUBLIC PLACE UNDER NDPS ACT-
The room in a hotel booked in the name of a customer and occupied by him is
held as a public place, and as such, conducting of search in such a room after sunset
without recording any grounds contemplated by Section 42 of N.D.P.S. Act neither
vitiated the search nor did it vitiate the evidence regarding recovery of charas
pursuant thereto. It is held by the Supreme Court that recording of reasons is not
contemplated under Section 43 of N.D.P.S. Act for search of public places including
any public conveyance, hotel, shop or other place intended for use by, or accessible
to, the public80.
4.3.9 SEARCH OF FEMALES UNDER SECTION 50 OF NDPS ACT
GUIDELINES OF THE APEX COURT-
The Supreme Court in State of Punjab v. Surinder Rani,81 has held that provision
of Section 50(4) of Narcotic Drugs and Psychotropic Substances Act, 1985 is
mandatory. The search of a female suspect must be done by a female and same cannot
be diluted on the ground that a female was not available at the time of search. The
Supreme Court did not interfere with the order of acquittal of female accused whose
search was conducted by male police officer for non-availability of female police
officers in violation of Section 50(4) of Narcotic Drugs and Psychotropic Substances
Act, 1985.
4.3.10 SEARCH OF PERSON ACCUSED IN PRESENCE OF POLICE
OFFICER OF GAZETTED RANK UNDER SECTION 50 OF NDPS ACT-
VALIDITY
In Salimuddin v. State of Gujrat,82the accused Salimuddin was apprehended and
he was informed of his right under Section 50 of N.D.P.S. Act to be searched in
presence of the Magistrate or Gazetted Officer. The accused accepted the offer and
wanted his search to be conducted before a Gazetted Officer. The police Inspector of
Gomtipur Police Station of the State of Gujarat was called and search was conducted
in his presence and charas contained in the plastic bag was recovered from the pocket
of trouser of the accused. This case came up before the Supreme Court by way of
Criminal Appeal and the dispute was raised whether the Police Inspector in whose
presence search of person of the accused was conducted was really a Gazetted
Officer.

80
Ganga BahadurThapa v. State of Goa 2000 SCC (Cri) 1376.
81
2001 SCC (Cri) 1487
82
2004 SCC (Cri) 1160.

211
 It is held by the Supreme Court that an Inspector of Police belongs to Class II
post and would be a Gazetted officer for requirement of Section 50 of N.D.P.S. Act.
According to the Supreme Court, the provisions of Section 50 of N.D.P.S. are validly
complied with as the search was conducted in presence of the Police Inspector who
happens to be Gazetted Officer in the State of Gujarat.
4.3.11 IMPORTANT JUDGMENTS ON THE CONCEPT OF POSSESSION
AND CONCIOUS POSSESSION-
The Supreme Court of India in Sorabkhan Gandhkhan Pathan v State of Gujarat83
has held that when the contraband was recovered from an auto-rickshaw and in the
absence of specific case that the accused had knowledge of carrying the contraband,
only on the ground that he was travelling in an auto-rickshaw, possession cannot be
inferred.
Again in MadanLal& Anotherv. State of H.P.,84 accused was driving the Car
and the remaining four accused were sitting therein. One steel container (dolu) in a
black coloured bag, was recovered from the said Car which contained 820 gms. of
Charas. All the accused were convicted by holding by the trial court that they were
found in conscious possession of charas, despite the fact that one of the accused
admitted his conscious possession. The Supreme Court upheld the judgment of the
trial court as the accused failed to explain how they were travelling in a Car together,
which was not a public vehicle.
Following the same trend the Supreme Court of India in the case of Megh Singh
v. State of Punjab,85 where three persons were found sitting, on the gunny bags,
containing poppy husk. The appellant was arrested while the other two fled. The trial
court convicted the appellant and the appeal was dismissed by the High Court. The
Supreme Court upheld the conviction and sentence of the appellant observing that he
was in conscious possession.
Delhi High Court in the case of Dilbagh Singh v. DRI,86has held that where the
accused (petitioner), a taxi driver, was driving the car and remained seated in the front
seat. The co-accused was in the rear seat. Another co-accused while driving another

83
AIR 2006 SC 214.See also Bata Krushna v. State of Orissa 2011 Cri LJ 6 (Orissa), Banta Singh v Union
of India 1993 Cri LJ. 97 (Raj.), Dinesh Palyekar v. State of Goa 2007 Cri LJ 106 (Bom), Pardeepkumar
Jain v. State of Rajasthan 1999 Cri LJ 3829 (Raj.), State of H.P. v Deepak Sharma 2011 Cri LJ 132
(H.P.)
84
2003 (4) RCR Criminal 100.
85
2003 (4) RCR Criminal 319
86
2010 (6) RCR Criminal 101

212
car dropped polythene bags containing drugs on the rear seat of the car (taxi) of the
petitioner. Soon thereafter the DRI officials intercepted both the cars. The co-accused
did not make any reference to the role of the petitioner. The Court held that it cannot
be held that the accused (petitioner) was in possession of the drug in question.
Similarly the Punjab & Haryana High Court in the case of Karan Singh v. State
of Haryana,87 has held that just because appellant was driving the canter, cannot be
held that he was in conscious possession of the poppy husk. The allegations against
the appellant are with regard to possession and transportation, appellant was driving
the canter with poppy husk but it has failed to bring any cogent evidence on record to
prove the nexus between the appellant and the alleged contraband.
However in State of Punjab v Balkar Singh,88 the Supreme Court had observed
that police should have conducted further investigation with regard to ownership of
poppy husk to prove that the appellant was in possession of the contraband.
Moreover, even if for the sake of arguments, it be presumed that all the allegations are
true, even then no conscious possession of contraband is made out.
4.3.12 ROLE OF INDEPENDENT WITNESSES VIS-A-VIS POLICE
WITNESSES-
The role of independent witnesses vis-a-vis police witnesses has been very well
explained in the recent judgment of the Supreme Court of India in the case Ajmer
Singh v. State of Haryana89 wherein the Court has made the following observations:
1. The Court cannot agree with the plea that the evidence of the official witness
cannot be relied upon as their testimony has not been corroborated by any
independent witness.
2. It is clear from the testimony of the prosecution witnesses that efforts were
made investigation party to include independent witness at the time of
recovery, but none was willing. It is true that the punishment provided under
the NDPS Act are severe and it is normally expected that there should be
independent evidence to support the case of the prosecution. However, it is not
an inviolable rule.
3. It may not be possible to find independent witness at all places at all times.
The obligation to take public witnesses is not absolute. If after making efforts,

87
2010 (3) RCR Criminal 790
88
2004 SCC (Cri) 838.
89
2010 (2) RCR Criminal 132

213
 which the court considers in the circumstances of the case, reasonable, the
police officer is not able to get public witnesses to associate with the raid or
arrest of the culprit, the arrest and the recovery made would not be necessarily
vitiated.
4. The Court will have to appreciate the relevant evidence and will have to
determine whether the evidence of the police officer was believable after
taking due care and caution in evaluating their evidence.
In this context, the following judgments are relevant to taken note of-
In Durand Didler v. Chief Secretary Union Territory of Goa,90 which came up in
the Supreme Court, the accused Durant Didler, a French national was apprehended by
the police at Colva (Goa) and was found in possession of 51 grams of brown sugar
(heroine), 45 grams of ganja oil and 55 grams of opium. The counsel for the accused
took up the plea that the investigation officer did not deliberately join with him,
respectable inhabitants of the locality.
The Supreme Court rejected this plea by holding that where the witnesses to
search and seizure of contraband drugs from the accused at midnight, were inhabitants
of the locality in which police outpost was situate and nothing brought out in the
cross-examination of these panch witnesses so as to discredit their testimony, the fact
that the witnesses were not residing in the vicinity of place of seizure is immaterial
and the plea that there was violation of statutory safeguards relating to search and
seizure was untenable.
The Supreme Court of India in the case of NCT of Delhi v Sunil,91 held that "It
is archaic notion that actions of the Police Officer, should be approached with initial
distrust. It is time now to start placing at least initial trust on the actions and the
documents made by the Police. At any rate, the Court cannot start with the
presumption that the police records are untrustworthy. As a proposition of law, the
presumption should be the other way round. The official acts of the Police have been
regularly performed is a wise principle of presumption and recognized even by the
Legislature".
The Apex Court in the case of Appa Bai and Another v. State of Gujarat,92has
held that the prosecution theory cannot be thrown out on the ground that an

90
AIR 1989 SC 1966.
91
2000 1 SCC 748
92
AIR 1988 SC 696

214
independent witness had not been examined by the prosecution. It was further held
that the civilized people are generally insensitive, when a crime is committed, even in
their presence, and they withdraw from the victim's side and from the side of the
vigilant. They keep themselves away from the courts, unless it is inevitable.
Moreover, they think the crime like a civil dispute, between two individuals and do
not involve themselves in it.
The Supreme Court in Akmal Ahmed v. State of Delhi,93 has held that, it is now
well settled that the evidence of search or seizure, made by the police, will not
become vitiated, solely for the reason that the same was not supported by an
independent witness.
The Punjab & Haryana High Court in the case Manjit Singh v The State of
Punjab94 has held that mere non-joining of an independent witness, when the
evidence of the prosecution witnesses, has been held to be cogent, convincing,
creditworthy, and reliable, and there was no reason, on their part, to falsely implicate
the accused, no doubt, is cast on the prosecution theory.
4.3.13 AFFIXING SEALS ON SAMPLES-
Dealing with issue of affixing seals on samples the Apex Court in Dayal Singh and
another v State of Punjab95 has held that if the seal was not handed over to the
independent witness but kept with the Investigating Officer or with the raiding party,
makes the case fatal for the prosecution as in that situation, the possibility of the
sealed contraband and the sample being tampered with, cannot be ruled out.
The judgment of Gujarat High Court in the case of Jitendra@ Sanjay kumar
Surykant Desai v. State of Gujarat,96 on the matter of affixing seals on samples is
very much relevant in this context, where in the following observations are of
significance:
The contention regarding laxity in following the procedure relating to sealing of
the seized contraband articles has some substance. There is no dispute that the Seal
remains in custody of the police. The possibility of tampering with the malmukadma
at a later stage and then again resealing the same by the Investigating Agency cannot
be ruled out. The very purpose behind carrying out the search, taking of sample and
sealing in presence of Panch witness is to ensure that there is no scope for any
93
1999 (2) RCR Criminal 265,See also Dharampal Singh v State of Punjab2010 (1) RCR Criminal 441
94
2010 (1) RCR Criminal 441.
95
2007 (2) RCR Criminal 596.
96
AIR 2005 SC 23.

215
mischief in procedure required to be followed. At the time of sealing slips containing
signatures of Panch witnesses as well as the Investigating Officer are affixed on the
articles seized and a seal is applied over it, so that, in case of any attempt for
tampering with the article seized, the seal would be broken or the slip would be torn
which would immediately reveal such an attempt. It was held that the slips bearing
signatures of the panch witnesses should be affixed on samples and thereafter seals
should be applied so that if any attempt is made to tamper with sample, the slips
affixed would get torn.
Dealing with issue of affixing seals on samples the Punjab & Haryana High
Court in Bhola Singh v. State of Punjab,97has held as under:
1.CFSL Form No. 29 should be prepared by the Investigating Officer at the spot
and be deposited in the Malkhana along with sealed contrabands;
2.After sealing the sample parcel of the contraband as well as remaining
contraband, the seal should be handed over to the independent person so that
till the case property had been deposited to the FSL, the same should not be
available to prosecuting agency. This is necessary to safeguard the possibility
of the sealed contraband and the sample being tempered with by the police
official;
3.CFSL Form should not only be prepared and sealed by the officer making
seizure at the place where the case property is seized from the accused, it
should also be sealed by the SHO, to whom the sample and the case property
is handed over and deposited in the Malkhana along with the sample parcel. It
should accompany the sample to Chemical Examiner.
The Court held that:
"Where the seal remained with the police official after use and the CFSL Form
was not prepared at the spot, it creates doubt in the prosecution case as filing of such
Form is a very valuable safeguard to ensure that the sealed sample is not tempered
with till the contraband is analyzed by the Forensic Science Laboratory. The seal not
given to the independent witnesses but kept with the I.O. or with the raiding party, is
also fatal to the prosecution case as in that situation, the possibility of the sealed
contraband and the sample being tampered with, cannot be ruled out."

97
2005 (2) RCR Criminal 520

216
 The same High Court in the case of Gurjant Singh v. State of Punjab,98 has held
that where the seal remained with the police official after use and the CFSL Form was
not prepared at the spot, it creates a serious doubt in the prosecution case as filing of
such Form is a very valuable safeguard to ensure that the sealed sample is not
tampered with till the contraband is analyzed by the Forensic Science Laboratory.
COURT JUDGMENTS IN CASE OF SAMPLES-
The Supreme Court in Kuldeep Singh v. State of Punjab,99 has ruled that non-
collection of samples at the initial stage of seizure was a defect which could not have
been cured in the manner in which it was done by opening the bags which had been
sealed by the Investigating Officer and mixing the contents thereof.
The Punjab & Haryana High Court in Manjit Singh v. State of Punjab,100 has
observed that the mere fact that delay in sending the samples, to the office of the
Chemical Examiner was not explained, in itself, was not sufficient, to come to
conclusion that the sample parcels were tempered with, at any stage. In such
circumstances, the court is required to fall back upon the other evidence, produced by
the prosecution to complete the link evidence. The other evidence produced by the
prosecution, has been subjected to in-depth scrutiny and it has been found to be
cogent, convincing, reliable and trustworthy, wherein it was proved that none
tampered with the sample parcels, until the same reached the laboratory. Above all the
report of the Chemical Examiner (admissible in evidence u/s 293 Cr PC) clearly
proves that the seals on the samples were found intact and agreed with the specimen
seals sent.
The Supreme Court of India held in the case of State of Orissa v. Kunduri
Sahoo,101 that mere delay in sending the sample to the Laboratory is not fatal, where
there is evidence that the seized articles remained in safe custody,.
The Punjab & Haryana Court in Narinder Singh @ Nindi v. State of Punjab,102
has ruled that since all the samples were intact, even if they were sent after 23 days, in
the face of other cogent, convincing, reliable and trustworthy evidence produced by
the prosecution to prove the completion of link evidence, the possibility of tampering
with the samples could not be made out. There should be no discrepancy in the weight

98
2007 (4) RCR Criminal 226
99
2010 (4) 659 SC
100
2010 (1) RCR Criminal 441
101
2004(1) RCR Criminal 196
102
2005 (3) RCR Criminal 343

217
of the sample recorded at the time of seizure panchnama and when the same is sent to
the lab for testing. There should be no delay in sending the sample for test. It must be
sent immediately and not later than 72 hours from the time of seizure, the proper and
authorized laboratory report is essential for conviction.
The decision of the Supreme Court of India in the case of Sunder Singh v.
State of UP,103 to be referred to, where in during search & Seizure, two persons not
belonging to the locality, had been joined, at the time of search. It was contended by
the defense counsel that since the provisions of Section 100(4) Cr PC were not
complied with, all the time of search, the search and the consequent recovery became
illegal and could not be taken into consideration. The Supreme Court held that
assuming the person, who actually witnessed the search, were not respectable
inhabitants of the locality, that circumstance would not invalidate the search. It would
only effect the weight of the evidence, in support of search and recovery. Hence, at
the highest, the irregularity in search and recovery, no so far as the terms of Section
100 had not been fully complied with would not affect the legality of the proceedings.
The Supreme Court of India in the case of Puran Mal v. Director of
Inspector,104 held that the material obtained by an illegal search, is not inadmissible
into evidence and can be acted upon to record a conviction. Similar was the opinion of
the Supreme Court in the case of State v. Jasvir Sing,105 where it was held that the
evidence collected in breach of the mandatory requirements, does not become
inadmissible.
4.4 THE INFORMATION TECHNOLOGY ACT, 2000-
No matter how we enact laws and various control regimes in the and it is judiciary,
which, in any Legal system, is responsible for administration of justice. Since cyber-
crime is relatively a very recent phenomenon, the judicial response in terms of
interpretation of various statues of cyber law assumes vast significance. In traditional
crimes, there is a plethora of judicial decisions but in case of cyber-crimes it is not so.
Here we have very little go ahead and look forward for interpretation of Laws on the
matter. Moreover, judicial decisions in cyber law have a lot of bearing on technicality
of the subject matter.

103
AIR 1956 SC 411.
104
1974 1 SCC 343.
105
1974 1 SCC 345, See also State of Himachal Pradesh v. Prithi Chand and another 1996 SCC (Cri.)
210.

218
 There has been little litigation or judicial response to cyber-crimes so far in
India and this will be a challenge for judicial decisions on cyber-crime in near future.
There has been a landmark judgment on domain dispute in the case of Rediff
Communication Ltd. v. Cyber Booth and another106. Similarly in Yahoo! Inc. v.
AkashArora and another,107also the issue of domain name is entitled to equal
protection as trademark. There are a number of issues involved in handling Cyber-
crimes. The first problem is that India does not have a comprehensive legal and
regulatory framework for regulating all kinds of cyber-crimes. The Indian Cyber law
viz., The Information Technology Act, 2000 has introduced a chapter entitled
Offences and in this chapter, only a limited number of cyber-crimes have been
covered. These include damage to computer source code, hacking, publishing obscene
electronic information breach of protected systems, publishing false Digital Signature
Certificates in certain particulars or for fraudulent purposes. Barring these offences,
no other cyber-crimes are covered under the IT Act. In addition, the IT Act 2000 has
amended the Indian Penal Code, 1860. However, the amendments have been made in
such a manner so as to make the ambit of documents stipulated in various criminal
provisions to include therein, electronic records. Consequently, a number of cyber-
crimes are not all covered under the Indian Penal Code. These include cyber stalking,
cyber harassment, cyber nuisance, identity theft, cyber terrorism etc.
ASIF AZIM CASE-
Main development has been India's first successful cyber-crime conviction in
February. On February 5, AsifAzim, 24, was found guilty by Delhi Metropolitan
Magistrate Gulshan Kumar of cheating Sony India of a 29-inch colour television and
a cordless headphone worth Rs. 27,570. As it was a first offence, the sentence was a
one-year probation and a personal surety bond of Rs. 20,000. Azim, who had been
working in I-Energizer, a call centre in Noida, happened upon the credit card details
of one of his clients, Barbara Campa. He then decided to do some shopping, free of
charge. He created an e-mail address is Campa's name and through it placed an order
on Sony India's website on May 8 last year by using Barbara Campa's credit card
details. Sony India's credit card company, Citibank, found it a valid transaction and
the products were delivered to Azim's residence the very next week. A mail was sent
to Campa with the photographs of Azim receiving the products.Things went into

106
AIR 2000 Bom. 27.
107
1999 PTC (19) 210 (Delhi).

219
panic mode around the end of June when Camparealised she had been charged for
something she had not bought and informed the bank. Citibank, after cross-checking
with her, reported that the transaction was fraudulent and, hence, invalid. This meant
that Sony had to pay for the transaction. Then matter was reported to the CBI. The
CBI team found that the Internet Protocol address from where the messages came was
not in the US but in Noida. They then tracked down the source computer. Azim was
using it Azim confessed to everything when the CBI confronted him. He said he had
done it just for the sake of getting something free. Azim was convicted under sections
418, 419 and 420 of the Indian Penal Code.
YAHOO CASE-
The case of Yahoo, Inc. v. Akash Arora,108 was the first case where an Indian
Court delivered its judgment relating to domain names. The plaintiff Yahoo Inc.
instituted a suit in the Delhi High Court against the defendants seeking inter-alia a
decree of permanent injunction restraining the defendants, their partners, servants and
agents from operating any business and/or selling, offering for sale, advertising and in
any manner dealing in any services or goods on the internet or otherwise under the
trademark/domain name 'Yahooindia.com' or any other mark/domain name which is
identical with or deceptively similar to the plaintiff''s trademark 'Yahoo!'. The plaintiff
also moved an application seeking temporary.
In this case, instituted by Yahoo! Inc., the Delhi High Court granted an ad
interim injunction restraining the defendants from operating any business or selling,
offering for sale, advertising and/or in any manner dealing in services or goods on the
internet or otherwise under the trademark/domain name "Yahooinida.com" or any
other trademark/domain name which is identical! with or deceptively similar to the
palintiff's trademark "Yahoo!".
REDIFF COMMUNICATION CASE-
Subsequently, in another matter Rediff Communication Ltd. v. Cyber Booth,109
the Yahoo judgment was once again reiterated. In this case, the palintiff filed a suit
for permanent injunction for inter alia restraining the defendants from using the

108
1999 PTC (19) 210 (Delhi).See also Shriram city union Finance Corporation ltd v. Rama Mishra
(2002) 9SCC 613, Suresh Nanda v. C.B.I. (2008) 3SCC 674, State v. Navjot Sandhu (2005) 4SCC 600,
Parkash (Dr.) v. State of Tamilnadu (2002) 7SCC 759, Riswana v. State Rep. by A.C.P. Chennai (2005)
1SCC 582.
109
AIR 2000 Bom. 27. See also Director General of Doordarshan v. Anand Patwardhan (2006) 8 SCC
433, Ajay Goswamyv. Union of India (2007) 1SCC 170, State of Maharastra v. Praful B. Desai (2003)
4SCC 601.

220
mark/domain name 'RADIFF' or any other word or work or name which is
deceptively similar to the plaintiff's mark/name 'REDIFF'. Bombay High Court
granted an injunction against the defendants. The Special Leave Petition filed by
Cyber booth in the Supreme Court was also dismissed. Though the Cyber Law was
passed under the Information Technology Act in 2000, but the corporates houses have
been shy of reporting cyber-crimes fearing adverse publicity which results into less
judicial pronouncements. Only conviction reinforces the confidence of the people in
the capability of the law enforcement agencies to crack cyber crime and in the Indian
judicial system's resilience in dealing with new challenges in the cyber age.
CYBER DEFAMATION: SMC Pneumatics (India) Pvt. Ltd.v.JogesKwatra110
A company's employee started sending derogatory, defamatory and obscene
emails about company's Managing Director. The emails were anonymous and
frequent and were sent to many company's business associates to tarnish the image
and goodwill of the company. The accused was identified by the company by the
private computer expert.
Delhi High Court granted an injunction and restrained the employee from
sending, publishing and transmitting emails which are defamatory or derogatory to the
plaintiffs.
The order of Delhi High Court assumes tremendous significance as this is for
the first time that an Indian court assumes jurisdiction in a matter concerning cyber
defamation and grants an ex-parte injunction restraining the defendant from defaming
the plaintiff.
State of Tamil Nadu v. Suhas Katti111
The Case of Suhas Katti is notable for the fact that the conviction was achieved
successfully within a relatively quick time of 7 months from the filing of the FIR.
The case related to posting of obscene, defamatory and annoying message about
a divorce woman in the yahoo message group. E-Mails were also forwarded to the
victim for information by the accused through a false e-mail account opened by him
in the name of the victim. The posting of the message resulted in annoying phone
calls to the lady in the belief that she was soliciting.
Based on a complaint made by the victim in February 2004, the Police traced the
accused to Mumbai and arrested him within the next few days. The accused was a

110
suit no. 1279/2001 Delhi H.C
111
C.C.no. 4680/2004

221
known family friend of the victim and was reportedly interested in marrying her. She
however married another person. This marriage later ended in divorce and the accused
started contacting her once again. On her reluctance to marry him, the accused took
up the harassment through the Internet.
The Defence argued that the offending mails would have been given either by
ex-husband of the complainant or the complainant herself to implicate the accused as
accused alleged to have turned down the request of the complainant to marry her.
Further the Defence counsel argued that some of the documentary evidence was not
sustainable under Section 65B of the Indian Evidence Act. Additional Chief
Metropolitan Magistrate, Egmore, delivered the judgment on 5-11-04 as follows:
"The accused is found guilty of offences under Section 469, 509 IPC and 67 of IT Act
2000 and the accused is convicted and is sentenced for the offence to undergo RI for 2
years under 469 IPC and to pay fine of Rs. 500/- and for the offence u/s 509 IPC
sentenced to undergo 1 year Simple imprisonment and to pay fine Rs. 500/- and for
the offence u/s 67 of IT Act 2000 to undergo RI for 2 years and to pay fine of Rs.
4000/- All sentences to run concurrently".
Syed Asifuddin and Ors. v. The State of AP. &Anr.,112
Tata Indicom employees were arrested for manipulation of the electronic 32-bit
number (ESN) programmed into cell phones that were exclusively franchised to
Reliance Infocomm. Reliance Infocomm launched a scheme under which a cell phone
subscriber was given a digital handset worth Rs. 10,500/- as well as service bundle for
3 years with an initial payment of Rs. 3350/- and monthly outflow of Rs. 600/-. The
subscriber was also provided a 1 year warranty and 3 year insurance on the handset.
The condition was that the handset was technologically locked so that it would only
work with the Reliance Infocomm services. If the customer wanted to leave Reliance
services, he would have to pay some charges including the true price of the handset.
Since the handset was of a high quality, the market response to the scheme was
phenomenal.
Unidentified persons contacted Reliance customers with an offer to change to a
lower priced Tata Indicom scheme. As part of the deal, their phone would be
technologically "unlocked" so that the exclusive Reliance handsets could be used for
the Tata Indicom service.

112
2005 Cri LJ 4314. See also Ponds India Ltd v. Commissioner of Trade Tax Lukhnow (2008) 8SCC 369,
C.I.T. v. Associated Distributors Ltd. (2008) 6SCC 145, Satyam Infoway Ltd v. Sify Solution (P) ltd.
(2004) 6SCC 145,

222
 Reliance officials came to know about this "unlocking" by Tata employees and
lodged a First Information Report (FIR) under various provisions of the Indian Penal
Code, Information Technology Act and the Copyright Act. The police then raided
some offices of Tata Indicom in Andhra Pradesh and arrested a few Tata Tele
Services Limited officials for reprogramming the Reliance handsets. These arrested
persons approached the High Court requesting the court to quash the FIR on the
grounds that their acts did not violate the said legal provisions.
The Court held that such manipulation amounted to tampering with computer
source code as envisaged by section 65 of the Information Technology Act, 2000.
State of Tamilnadu v. Dr L. Prakash,113
Dr. L. Prakash was convicted for manipulating his patients in various ways and
forcing them to commit sexual acts on camera and posting the pictures and videos on
the internet. Dr L. Prakash was sentenced to life imprisonment in a case pertaining to
online obscenity. This case was also landmark in a variety of ways since it
demonstrated the resolve of the law enforcement and the judiciary not to let off the
hook one of the very educated and sophisticated professionals of India.
RITU KOHLI CASE-
One Mrs. Ritu Kohli complained to the police against the a person who was
using her identity to chat over the website www.mirc.com, mostly in the Delhi
channel for four consecutive days. Mrs. Kohli further complained that the person was
chatting on the Net, using her name and giving her address and was talking obscene
language. The same person was also deliberately giving her telephone number to
other chatters encouraging them to call Ritu Kohli at odd hours. Consequently, Mrs.
Kohli received almost 40 calls in three days mostly at odd hours from as far away as
Kuwait, Cochin, Bombay and Ahmedabad. The said calls created havoc in the
personal life and mental peace of Ritu Kohli who decided to report the matter.
The IP addresses were traced and the police investigated the entire matter and
ultimately arrested Manish Kathuria on the said complaint. Manish apparently
pleaded guilty and was arrested. A case was registered under section 509, of the
Indian Penal Code, 1860.

113
2002 Cri LJ 2596 (T.N.), See also Standard Charted v. Director of Enforcement ,AIR 2005 SC 2622,
Assistant Commisioner v. Velliappa Textiles, AIR 2004 SC 456, Shriram City Union Finance
Corporation Ltd. v. Rama Mishra (2002) 9SCC 613.

223
Avnish Bajaj v. State (N.C.T.) of Delhi,114
Avnish Bajaj CEO of Baazee.com, a customer-to-customer website, which
facilitates the online sale of property. Baazee.com receives commission from such
sales and also generates revenue from advertisements carried on its web pages. An
obscene MMS clipping was listed for sale on Baazee.com on 27th November, 2004 in
the name of "DPS Girl having fun". Some copies of the clipping were sold through
Baazee.com and the seller received the money for the sale. Avnish Bajaj was arrested
under section 67 of the Information Technology Act, 2000.
The arguments of the defendant were that Section 67 of Information
Technology Act relates to publication of obscene material. It does not relate to
transmission of such material. On coming to learn of the illegal character of the sale,
remedial steps were taken within 38 hours, since the intervening period was a
weekend.
The findings of the Court-
It has not been established from the evidence that any publication took place by
the accused, directly or indirectly.
The actual obscene recording/clip could not be viewed on the portal of
Baazee.com.
The sale consideration was not routed through the accused.
Prima facie Baazee.com had endeavored to plug the loophole.
The accused had actively participated in the investigations.
The nature of the alleged offence is such that the evidence has already
crystallized and may even be tamper proof.
Even though the accused is a foreign citizen, he is of Indian origin with family
roots in India.
The evidence that has been collected indicates only that the obscene material
may have been unwittingly offered for sale on the website.
The evidence that has been collected indicates that the heinous nature of the
alleged crime may be attributable to some other person.
The court granted bail to Mr. Bajaj subject to furnishing two sureties of Rs. 1
lakh each. The court ordered Mr. Bajaj to surrender his passport and not to leave India

114
3066 of 2006, decided on 29-5-2008, 150 (2008) DLT 769.

224
without the permission of the Court. The court also ordered Mr. Bajaj to participate
and assist in the investigation.
Similarly in Raju Thapa v. State of Uttarakhand,115 where the allegations
against the accused were that he forcibly committed rape on victim girl student. He
himself prepared the video clipping of naked parts of her body when he was
committing rape and clipping were circulated. FIR was lodged after 2 years of the
incident. No satisfactory explanation was given for such long inordinate delay. There
was no cogent and reliable evidence on the record to prove that accused had himself
recorded video, as in video person who was shown as committing rape was not
identifiable. From the circumstances it was unable to conclude that in video, person
committing rape was accused and no one else. So the prosecution story was held
unbelievable and the accused was given the benefit of doubt.
4.5THE PREVENTION OF FOOE ADULTERATION ACT, 1954
Prior to the enforcement of the Prevention of Food Adulteration Act, 1954
various States of Indian Union had enacted their own Prevention of food adulteration
Laws. These laws were not uniform nor were they adequate to meet the present
requirements. In view of the widespread interest Prevention of Food Adulteration Bill
No. 101 of 1952 was introduced in Lok Sabha. This bill was passed into the
Prevention of Food Adulteration Act 1954. Prevention of Food Adulteration Act
1954, was made uniformly applicable to all states.
While interpreting the provisions of the Prevention of Food Adulteration Act,
1954 the Supreme Court of India in Municipal Corporation of Delhi v. Kacheroo
Mal,116 has held that the Act has been enacted to curb the widespread evil of food
adulteration and to ensure the sale of wholesome food to the people. It is well settled
that, wherever possible, without unreasonable stretching or straining, the language of
such a Statue should be construed in a manner which would suppress the mischief,
advance the remedy, promote its object prevent its subtle evasion and foil its
circumvention.
Similarly in Rakhal Chandra Dutta v. Purna Chandra Gosh,117 it was held that
the Food Adulteration Act 1954 is intended to protect the public from using
adulterated articles and therefore it has made it penal to sell these adulterated articles

115
2014 Cri LJ 324.
116
AIR 1978 S.C. 394.
117
AIR 1930 Lal. 273.

225
to persons irrespective of the fact that the purchaser knew the article to be adulterated
to otherwise. With regard to the ordinary articles of food it is no defence to say that
these articles can be adulterated and sold in the market with the publication of the fact
that they are adulterated.
Following the above trend in Mahesh Ram Chandra Jadhav v. State of
Maharashtra,118 the Hon'ble court has held that in the object of the Act is stated in the
preamble and that is to make provisions for the prevention of adulteration of food.
The Act defines what is meant by adulteration and also lays down specific procedure
for purchasing samples of suspect adulterated goods, for getting them examined from
public analysts, for getting sanction from the prosecution and for prosecuting the
accused thereafter. The Act gives certain rights to the accused and from the scores of
judgments that have been scrupulously protected.
4.5.1 CONSTITUTIONAL VALIDITY OF THE ACT-
The validity of section 7 read with section 2(v), 2(IX), Sec. 19(2) (1) and Sec.
90 read with section 13 of the Prevention of Food Adulteration Act and rules framed
there under were challenged on the ground of infringement of the fundamental rights
granted under Act 14, 19 (1) (g) and 20 (3) of the Constitution before the Supreme
Court in a writ petition of Andhara Pradesh Grain and Seed Merchant's Association v.
Union of India,119 unsuccessfully. The Apex Court held that the restrictions imposed
upon the conduct of business by traders in food stuff cannot be deemed unreasonable.
The court further ruled that for the protection of the public by ensuring the
purity of articles of food supplied to the people and preventing malpractices by traders
in articles of food, severity of the penalties under sec. 16 (1) (a) of the Act is not so
disproportionate to the gravity of the offence that it may be deemed unreasonable. The
Apex court negates the plea of violation of equality clause under Art 14 of the
Constitution.
The Act does not infringe the guarantee of Art 20(3) of the Constitution. There
is provisions that accused can challenge the report of Public Analyst and on his
request another part of the sample will be sent to the Director of Central Food
Laboratory but the report of the Director of Central Food Laboratory is final and
cannot be challenged. It is held that the Director is highly placed official, an expert in
determining the nature, substance and quality of food and is wholly disinterested in

118
1999 FAJ 183
119
AIR 1971 S.C. 2346

226
the result of any case coming before the courts. It is difficult to appreciate how
conclusiveness attributed to the certificate of the Director compels the vendor charged
with an offence under the Act to be a witness against himself. Following the same
trend in State of Uttar Pradesh v. Katar Singh,120 it was decided that the standards
prescribed for various food articles were not arbitrary or discriminatory and not
voilative of any provisions of the Constitution.
4.5.2 MENS-REA NOT AN ESSENTIAL INGREDIENT OF AN OFFENCE-
Actus-reus and mens-rea are the two essential ingredients of crime and in Sarjoo
Prasad v. State of Uttar Pradesh,121 the Apex court observed that mens-rea which is
some state of a guilty knowledge of adulteration of food stuff is not to be proved for
an offence under section 7 of the Act. Following the above trend in Food Inspector
Palghat Muncipality v. Seetharam Rice and Oil Mills,122 the full bench of the Kerla
High Court held that mens-rea is not an essential element or ingredient of an offence
punishable under the Act. Again in Andhra Pradesh Grain and Seed Mereent's
Association v. Union of India123 the Apex court observed that the offences under the
Act are not required to be proved with reference of to the guilty mind of the accused.
Explaining regarding the enforcement of the prevention of Food Adulteration
Act 1954 the Supreme Court in Tillo Ram Karam Chand v. State,124 has opined that
offences reality to food adulteration have far reaching consequences on the entire
community. The Law relating to Prevention of Food Adulteration is being defined
with impunity and this evil has assumed an alarming magnitude. The health of the
entire nation, including, children, women and old and it is matter of vital importance
which should engage attention of all those who are concerned with the enforcement of
this law. On a number of occasion similar views have been expressed by the Punjab
and Haryana High Courts both in Delhi and Chandigarh against this evil. It is hoped
that Law relating to prevention of food adulteration would be enforced with
appropriate strictness so as to make it effective and achieve the object of its
enactment.
When an Act is enacted with a view of see that the health of public is not
adversely affected, any act in contravention of the previsions of the said Act is a

120
AIR 1964 S.C. 1135
121
AIR 1961 S.C. 631
122
1975 F.A.J. 135 (F.B) (Ker.)
123
AIR 1971 S.C. 2346
124
AIR 1967 S.C. 71

227
violation, and initiation of proceedings for such violations is in the interest of the
public at large as it is concerned with the health of public. The Apex Court in, the
case of Jagdish Prasad v. State of West Bengal,125 has pointed out that the offences
under the Act are anti-social crimes, affecting the health and well-being of our people,
hence a more drastic step was taken by the legislature in prescribing a minimum
sentence and a minimum fine to be imposed even for a first offence. Adulteration of
food is so dangerous and widespread and has so often led to large human tragedies,
sudden or slow, insidious or open, that social defence compels casting of absolute
liability on the criminal even if the particular offence in committed with an
unsuspecting means.126 In the circumstances, launching of provisions for violation of
breach of the provisions of the Act is in the public interest.127
The Supreme Court has discussed the question of applicability of the provisions
of the Probation of Offenders Act, 1958 on the offender convicted under the
prevention of Food Adulteration Act in the case of Ram Parkash v. The State of
Himachal Pradesh,128 wherein the only question which required consideration was
whether the provisions of the probation of offenders Act could be applied to the
convict-appellant in that case. The Supreme Court in Municipal Corporation of Delhi
v. Anand Sarup,129 has observed that the benefit of the provisions contained in
the Probation of Offenders Act, should not be lightly given and it should be kept in
view that Section 16 of the Prevention of Food Adulteration Act provides for a
minimum sentence of imprisonment for not less than 6 months for the offence of
selling adulterated food. The imperative nature of Section 16 was not the only element
and the Supreme Court was dealing precisely with a case where coal tar dye had been
used in preparation of Patisa which is a sweetened eatable commodity. The Supreme
Court took the view that the sale of such an article of food which had been adulterated
was an anti-social activity, deleterious to the health of those who were to consume the
article of food. The eradication of evil was the principal aim of the Act. Where the
evil was to be found pernicious coloring matter obviously used to attract customers,

125
AIR 1977 S.C. 435
126
Ibid.
127
State of Gujrat v. Patira Packaging, AIR1999 SC 34.
128
1972 (4) SCC 46
129
1974CriLJ192 (Del.)See alsoIshar Das. v. State of Punjab, AIR 1972 SC 1295, Ram Bahadur v. State
1975 Cri LJ 1279 (All.), Municipal Corporation of Delhi v. Jaswant Rai ILR 1975 Delhi 1668, Badan
Singh v. State of U.P. 1977 Cri LJ 412 (All.)

228
causing adulteration that was to be taken into consideration and the benefit of
the Probation of Offenders Act was not to be given.
It has been made clear in the judgments of the court, in categorical terms that the
provisions of the Probation of Offender Act, 1958 distinguish offenders below 21
years of age and those above the age and offenders who are guilty of committing an
offence punishable with death or imprisonment for life and those who are guilty of a
lesser offence. While in the case of offenders who are above the age of 21 years,
dissolute discretion is given to the court to release them after admonition or on
probation of good conduct, in the case of the offenders below the age of 21 years, an
injunction is issued to the court not to sentence them to imprisonment unless it is
satisfied that having regard to the circumstance of the case, including the nature of the
offence, and the character of the offenders, it is not desirable to deal with then under
section 3 and 4 of the Act.130
The judiciary has taken a serious not of the evil of food adulteration and in
Jawahar General Stores Nibubrolaand others v. Union of India,131 it is held that the
retailer who deal in articles of food, cannot be allowed to plead want of knowledge
that the articles of food purchased by them were adulterated as knowledge and
awareness of purchaser was wholly immaterial as the policy of the Act is to protect
the public by prohibiting the sale in any circumstances, of adulterated articles of food
which do not come up to the prescribed standards of quality or purity.
As a general rule of criminal Law, the master is not responsible for the
unauthorized act of his servant. But in Bhanwar Singh v. State of MP,132 it is held that
it is in the larger interest of public health that under the Food Adulteration Act, the
master is made vicariously made liable oven though he knows nothing of the act done
by his servant. The distribution of impure or adulterated food for consumption is an
act perilous human life and health and without intent is made an offence. The
legislature absolutely forbids the Act and makes the master as well as the servant
liable without mens-rea.

130
Rattan Lal v. State of Punjab AIR 1965 SC 444. See also Ransi Mission v. State of Bihar AIR 1963 SC
1088, Joginder Singh v. State of Punjab 1980 Cri LJ 1218 (P&H), Muncipal Corporation of Delhi v.
AnandSarup 1974 Cri LJ 192 (Del.), NandKishor v. State of Rajasthan 1997 Cri LJ 2471 (Raj.), Shri
Ram v. State 1976 Cri LJ 736 (All.), Shabir Ahmed v. State 1976 Cri LJ 741 (SC)
131
1983 (20FAC (161, 162)
132
1985 (1) FAC 58.

229
 Adding of water to milk is certainly injurious to health, and it is not necessary
for the public analyst to give opinion that adulterated milk was injurious to health. It
is for the court to judge all these things. When it is found that milk was adulterated
and it was mixed with water, certainly it is injurious to health. It cannot be said that
mixing water in pure milk be beneficial to health, and it would improve
health.133Following the above trend in Jagdish Singhv. State of Punjab134 it is held
that even if milk is kept for preparing tea, the accused will be held guilty for keeping
in possession of the adulterated milk for preparation of tea.
Deviating from the above trend in Babir Ram v. State of H.P.,135 where the
accused proved that he was carrying the milk to his uncle's house for being used in jag
ceremony and it was not meant for sale, he cannot be held liable under section 7/16
because he was not carrying the milk for sale.
Although the aims and object of the special Act are not required to be
emphasized but even then it can be said that as the adulteration of food stuffs was so
rampant amongst the manufactures and the dealers of the food stuffs, therefore, to
curb this menace a special law came into being known as the Prevention of Food
Adulteration Act, 1954, with a determination to onslaught on this anti-social
behaviour of the people with a hope to bring relief to the nation. It was for this object
behind the law that a minimum sentence has been provided under the provisions of
section 16 of the Act. In ordinary course a person found guilty of an offence of
section 7 read with section 16 of Act shall not be less than six months and the same
extend for three years and with fine which shall not be less than 1000/. Despite
minimum sentence being prescribed under the Act in State of Haryana v.
ShyamLal,136 where the respondent was involved for a serious offence against society
and the Learned Additional Session Judge could not scuttle the provisions of law and
reduced the sentence where minimum sentence is provided under the Act. It appears
that Additional Session Judge has not at all taken care to go through the provisions of
law before he reduced the sentence of the accused from one year to till the arising of
the court.

133
Mohinder Singh v. The State of Punjab 1984 (1) FAC (138), See also Ram Lal v. State of Rajasthan,
AIR 2001 SC 47, Khem Chand v. State of Himanchal Pradesh, AIR 1994 SC 226.
134
1984 FAJ B40 (P.&H.)
135
1986 (3) FAC 140
136
1997 (1) E.F.R 241 at pp. 242, 243 (P.&.H)

230
 Following the above trend in Ranvir Singh v. Food Inspector, Town Area and
Tehsil Kiroli, Agra137it is held by the court that under section 16(1) (c) of the
Prevention of Food Adulteration Act 1954 the punishment should not be less than 6
months. The other provisions do not contain any leniency to the accused found guilty
on the charges under section 6(1) (c) of the Act. Therefore, question of further
curtailing the sentence is not legally permissible.
The Prevention of Food Adulteration, 1954 provides that no person shall himself
or any person on his behalf manufacture for sale or store, sell or distribute any
adulterated food or any misbranded food or any article of food for the sale of which a
license is prescribed except in accordance with a conditions of the license or any
article of food of the sale of which is for the time being prohibited by the Food
Authority138 in the interest of public health.139
The word person in section include a body corporate and limited company. The
fact that the sentence of imprisonment cannot be excited against the company does
not mean that it is exempted from indictment and from payment of fine. In case of
infringement of the provision of this section by a corporate body that person can be
held vicariously liable who is in charge of and responsible for the conduct of business.
Where these was no evidence that owner of the mill was in charge of and responsible
of to the company for its business, no conviction can follow.140
According to the prohibition envisaged by S. 7(1) of the Act, no person shall
himself or by any other person on his behalf manufacture for sale or store, sell or
distribute any adulterated food which includes enters into or is used composition or
preparation of food.141 Following the same trend in State of Kerla v. Alasserry
Mohamad,142 a sample is taken from a shop, the accused was owner of the adjoining
shop only and had nothing to do with that shop, the license of the said shop also did
not stand in his name, the conviction of accused was held to be unjustified.
Following the same trend in Sarjoo Prasad v. State of U.P.,143 It is held that in
case of master and servant if a servant administers an articles of food and sells it
137
1998 (1) A. Cr. R 548 (All). See also Khusi Ram Rathore v. State of U.P. 1984 Cri LJ 690 (Raj).
138
subs. by Ameding Act 49 of 1964, S. 4 (1-3-1965).
139
Section 7 of the Prevention of Food Adulteration Act, 1954
140
Public Prosecuter v. Subrahmanyam AIR 1960 AP 584 See also R. Banerjee v. H.D. Dubey AIR 1992
SC 1168, State of Assam v. Paban Kumar Aggarwal, 1990 (FAC) 115, Corbonrandum Universal
Madras V. Food Inspector Thiruvettiyur Muncipality 1989 (1) FAC 367.
141
New Delhi Municipality v. Nardev sing AIR 1980 Delhi 224.
142
1984 Cri LJ 567.
143
AIR 1961 SC 631.

231
without the knowledge of master, the master would not be liable. If the master is
conducting the business of sale of milk and employs a servant in that business, the
mere absence of the master for a day or two from city does not mean that he was in
charge of the business and it cannot be said that the servant was not acting in the
course of his employment for and on behalf of the master, who is vicariously liable
for the acts of his servant. As a general principle an employer will be responsible for
an offence committed under this section by his employee in selling adulterated article
of food.
Deviating from the above trend in Delhi Muncipality v. L.N. Tandon,144 it was
held that if an article of food is not intended for sale and is in possession of a person
who does not fulfill the character of a seller, conveyer, deliverer, consignee,
manufacture or spree for sale such as is referred to in sub-section (1) (a) and (2) of
S.10, the Food Inspector will not be competent, on such sample being found
adulterated to launch prosecution thereon. Again in Asgars v. State,145 the place of the
accused was that milk in his possession was not for role but that he was carrying it to
his relative and the prosecution evidence on the question of sale was meager, the sale
of the sample to the Food Inspector would not, in such a case, constitute a sale within
the meaning of the Act. The accused would therefore, be entitled to acquittal.
Though food adulteration is a menace to the society handled with heavy hands
but at the same time the interest of the accused has to be protected and following the
above view the Hon'ble Court in Padem Chand Jain v. State,146 has held that an order
of discharge of accused cannot be interfered with in revision if under the
circumstances setting aside of order would lead to injustice. Where the trial court
convicted both the son and father on the basis that they were partners in the firm.
When father was a sleeping partner and he was not responsible for the conduct of
business so he could not be convicted on the basis of fact that he was sole proprietor.
However in Birender Shahi v. State of Sikkim,147 the petitioners were manufacturing
and selling the adulterated ice candy. The Food Health Authority sent a show cause
notice prohibiting the petitioner to manufacture and sale, store or distribution of ice
candy with in the State of Sikkim in the interest of public health with immediate
effect fill further orders. Instead of filling reply to the notice it was challenged by way
144
AIR 1976 SC 321.
145
1970 Cri LJ 1289.
146
2002 Cri LJ 169 (DB)
147
2002 Cri LJ169.

232
of writ petition in the High Court. The action of the State Authorities was alleged to
actuated by malice. It is held that if action of the State Authority is mala fide the
action need be interfered by the High Court in exercise of power in writ jurisdiction
but as in writ jurisdiction mala fide intent could not be established, the writ was
dismissed.
Under Section 10, the Food Inspectors has been conferred with vast powers for
taking sample and getting such sample analyzed from Public Analyst or to enter any
place to inspect it. The Food Inspector is a public servant. There is no reason to
disbelieve his evidence.148 It is not necessary that his evidence must be corroborated
by an independent witness, so his evidence cannot be discarded merely on the ground
of non-corroboration.149
The Food Inspector is empowered to take a sample of the article and get it
analyzed by the Public Analyst to find out whether the article has been adulterated.
Where the vendor co-operates with the Food Inspector and allows him to take the
sample, there is no difficulty. But if he refuses to allow the taking of the sample this
section authorizes the Food Inspector to compulsorily take the sample and for this
purpose, to enter and inspect any place where the article is kept or exposed for sale
and to seize the article by following, as far as may be, the procedure prescribed by the
Code of Criminal Procedure 1973, relating to search and inspection by Police Officers
executing search warrants.
But in Lal Singh v. State of U.P.,150 the Food Inspector took the sample of
adulterated cow milk. No independent public witness was prepared to stand as
witness. It was held by the Court that the absence of public witness was duly
explained by the Food Inspector. Moreover, the accused could not show that there
was any enmity of the revisionist with the Food Inspector who took the sample which
could tempt him concoct a false case against him. In the absence of public witness
having been plausibly explained no adverse inference could we drawn against the
prosecution case. Similarly in Sukhvir v. State,151 it was argued on behalf of the
defence that sample were stated to have been taken from the petitioner in open
market. No witness had joined. The non-joinder of public witness costs strong doubt

148
State of Orissa v. AppaRao, 1990 (2) FAC 189, See also State of Assam v. Sumermal Jain, 1990 (2)
FAC 223.
149
State of U.P. v. Hanif, AIR 1995 SC 1121.
150
2001 Cri LJ 3346 (Allahabad).
151
2002 Cri LJ 3529 (Del).

233
on the bona fide of the prosecution case. Reliance was placed on B.A. Sawant v.
State,152 where in the Delhi High Court had held that Section 10(7) is not mandatory.
The compliance of this sub-section would be necessary for satisfying the Court that
the required sample was taken as alleged by the prosecution. The compliance
becomes unnecessary when the accused himself admits sale and sealing of the sample
by the Food Inspector. It is common knowledge that members of public are hesitant in
joining as witness. Merely because of public witness were not joined, a prosecution
case cannot be thrown out.
Section 11 of Prevention of Food Adulteration Act 1954 prescribes the
procedure to be followed by the Food Inspector when he takes a "sample of food for
analysis". The object of the section is to provide safeguards against the mischief of
tampering with the samples of the offending articles before they reached the Public
Analyst.
This section does not require that the notice should be addressed to a particular
person. It merely requires that notice should be given to the person from whom the
Food Inspector is taking sample. When the notice is actually handed over to him and
even his acknowledgement is obtained, it cannot be said that the notice has not been
given to the person from whom the sample was taken merely because the name of the
proprietor is mentioned at the top of the notice.153
Article 20(3) the Constitution provides that no person accused of any offence
shall be compelled to be a witness against himself, cannot be said to be violated in a
case where the Inspector in his usual round of surprise check purchased milk from the
vendor who was later on prosecuted for selling adulterated milk. This is so because
there was no compulsion and the vendor was not an accused when the sample of milk
was taken.154
On receipt of the report of the result of the analysis under sub-section (1) to the
effect that the article of food is adulterated, the Local (Health) Authority shall, after
the institution of prosecution against the persons from whom the sample of the article
of food was taken and the person, if any, whose name, address and other particular
have been disclosed under section 14A, forward, in such manner as may be
prescribed, a copy of the report of the result of the analysis to such person or persons,
152
1976 Cri LJ 1344.
153
Nagar Mahapalika of Lucknow v. Afaq Hussain, AIR 1962 All 517, See also United Flour Mills v.
Calcutta Corporation 1982 Cri LJ 578 (DB)
154
Mohan Lal v. CEO, Jabalpur, AIR 1962 MP 17.

234
as the case may be, informing such person or persons that if it is so desired, either or
both of them may make an application to the court within a period of ten days from
the date of receipt of the copy of the report to get the sample of the article of food
kept by the Local (Health) Authority analyzed by the Central Food Laboratory155.
Where there is a discrepancy between the certificate of the Director of the
Central Food Laboratory and the report of the Public Analyst the certificate will
prevail over the report as to the facts stated therein in so far as such facts differ from
the facts stated in the certificate. The facts, if any, contained in the report of the Public
Analyst which are in addition to those considered by the certificate will not stand
effaced by the certificate and can be considered in evidence.156
However in Sughar Singh v. State of U.P.,157 there was violation of Section
13(2) in sending the report to the accused. The Central Food Laboratory refused the
application of the accused for analysis of sample on the ground of delay. It was held
that the accused right was violated due to delay on the part of department, therefore,
conviction was set aside.
Under Section 13(2) of the Prevention of Food Adulteration Act, the officer who
took the samples, after receipt of the analyst report and after filing the report in the
Court, shall give a notice to the appellant/accused along with a copy of the report of
the Public Analyst and an intimation in writing that he would file an application
before the Court making a request to send the second sample which was deposited
with the Local Authority for the second analysis. A very reading of the Section 13(2)
of the Act would clearly indicate that it was intended to provide certain safeguards
and right to the accused. Therefore, where no notice under Section 13(2) was served
on the accused that he was entitled to get sample analyzed from the second Analyst. It
was held that provisions of Section 13(2) are violated; therefore, conviction cannot be
sustained.158
When a valuable right is conferred by Section 13(2) of the Act on the vendor to
have the sample given to him analyzed by the Director of Central Food Laboratory, it
is to be expected that the prosecution will proceed in such a manner, so that the right
conferred on the accused will not be denied to him, the right is a valuable one,

155
Section 13(2) of Prevention of Food Adulteration Act 1954.
156
State of Kerala v. Narayana Nair, 1969 KLT 645.
157
2001 Cri LJ 1097 (MP)
158
Varghese v. State, 2001 Cri LJ 2295 Madras; A.S. Arunachalam v. StateRep. by Inspector of Police,
Turuneveli, 1993 MLW (Cri). 211.

235
because the certificate of the Central Food Laboratory supersedes the report of the
Public Analyst. In a case, where there is a denial of the right on account of the
deliberate conduct of the prosecution, i.e., delay in prosecution as result of which the
sample is highly decomposed and could not be analysed the vendor, in his trial, will
be so seriously prejudiced.159 Where a report of Public Analyst was sent to the
accused and there was sufficient compliance of provision of Section 13(2) of the Act
in sending the notice along with the report of Public Analyst to the accused. The
accused not applying to Court for sending sample to Central Food Laboratory. The
accused cannot complain about delay in receipt of report by him.160
Again in Sukhbir Singh v. State,161 report of Public Analyst was sent by
registered post to the petitioner at the given address. The service of the report could
not be made, the Inspector also visited residential premises of the petitioner to serve
the report but on repeated occasions, the residence premises of the petitioner were
found to be locked and he was not available at his business address. It was held that
there was compliance of proviso of Section 13(2) and the trial is not vitiated. It has
been held in a number of cases that it is obligatory on the part of prosecution to serve
a copy of analyst on the accused to inform to make him an application if he desires
within 10 days to get the sample of food article done by Central Food Laboratory.162
It appears to us that when a valuable right is conferred by Section 13(2) of the
Act on the vendor to have the sample given to him analysed by the Director of the
Central Food Laboratory, it is to be expected that the prosecution will proceed in
such a manner that the right will not be denied to him. The right is a valuable one
because the certificate of the Director supersedes the representatives of the Public
Analyst and is treated as conclusive evidence of its contents. Obviously the right has
been given to the vendor in order that for his satisfaction and proper defence, he
should be able to have the sample kept in his charge analysed by a Secretary expert
whose certificate is to be accepted by Court as conclusive evidence. In a case where
there is denial of this right on account of the deliberate conduct of the prosecution, we

159
M. Chinnaswamyv.R. Satya Narayan, 2001 Cri LJ 445 (Madras),See also Municipal Corporation of
Delhi v. Ghisa Ram, AIR 1967 SC 970; State by Food Inspector v. Arumugam, 1990 Mad LW (Cri) 18;
S.P. Agarwal v. State of U.P. 1998 Cri LJ 643; R.P. Patel v. State of Punjab, 1998 Cri LJ 703.
160
Ramesh v. State of U.P., 2002 Cri LJ 4575 (Allahabad); AjitParsad v. State of Maharashtra, AIR 1972
SC 1631; Tulsi Ram v. State of M.P., AIR 1985 SC 299.
161
2002 Cri LJ 3529 (Delhi).
162
Food Inspector v. BavirisettyHanumanthaRao, 1994 Cri LJ 1145 (AP); State of Assam v. BanwariLal,
1992 Cri LJ 3053 (Gau).

236
think that the vendor, in his trial, is so seriously prejudiced that it would not be proper
to uphold his conviction on the basis of the report of the Public Analyst, even though
that report continues to be evidence in the case of the facts contained therein.
The Court also observed that where the right of the offender to have his sample
tested by the Director of CFL is prostrated. The offender cannot be convicted on the
basis of the report of Public Analyst.163
The adulteration of article of food is an extremely anti-social act. Adulteration
being highly deleterious to public health, therefore, the object of that Act is to
eradicate this evil and to ensure purity of article of food showed to the public. When
the quality of articles does not conform to the standard prescribed, the sale,
manufacture, distribution storing etc. of the article would be an offence. However
impracticable it may be to manufacture the article according to prescribed standard
the restriction imposed upon the conduct of business by traders in foodstuffs cannot
be diluted. The Act and Rules framed there under do not infringe Article 14 and 20(3)
of the Constitution.164 In order to make a person liable under Section 16(1) (a), it is
necessary that the person from whom the article was purchased was a dealer as such
in the article. An owner of an adulterated article of food who sells it himself is liable
or he should also be liable if he sells through some servant or agent. The servant and
agent who sells it also is guilty of selling an adulterated article. No mens-rea is
necessary to be proved even in case of servant or agent. The Allahabad High Court
has held that putting a label on the containers of an adulterated article which is an
article of food to the effect that it is sold for other purposes, is no guarantee that the
purchaser would not use it as food therefore, it will not absolve the seller from
liability under this Section.165
In order to constitute "prevention" the accused must do something which makes
it impossible for the Food Inspector to take the sample. 'Prevention' does not mean
only obstruction by physical force. It may involve a threat. There can be a prevention
from taking sample by destruction of the article or by otherwise not making it

163
Municipal Committee of Delhi v. Ghisa Ram, (1967) 2 SCR 116. See also Chetu Mal. v. State of
M.P,AIR 1981, SC 1397.See also Hydrabad Beverages Private Limited etc. V. State of A.P. 2006 Cri LJ
3988 (A.P.), Rattan Lal and etc. v. State of H.P. 1991 Cri LJ 3302 (H.P.), Dhan Raj and etc. v. Muncipal
Corporation of Delhi and State 1973 Cri LJ 433 (Delhi), Godawat Pan Masala Products I.P. ltd. v.
Union of India, AIR 2004 SC 4057.
164
A.P. Green & Seed Merchant Association v. Union of India, AIR 1971 SC 2346.
165
State of Kerala v. Rajappan Nair, 1978 Cri LJ 528.

237
available to the Food Inspector to take the sample. The act of refusal may be
accompanied by such conduct and demeanor as may amount to prevention.166
Prosecution has to prove that article is adulterated within the meaning of sub-
clause (m) of Section 2(ia) and the article cannot be deemed to be adulterated if the
accused proves that the fall in standard is solely due to natural causes beyond control
of human agency but as accused has failed to discharge this burden, conviction was
maintained.167
In cases where the evidence is of a circumstantial nature, the circumstances
from which the conclusion of guilt is to be drawn should in the first instance be fully
established and all the facts so established should be consistent with the hypothesis of
the guilt of the accused. Again the circumstances should be of a conclusive nature and
should be such as to exclude every hypothesis but the one proposed to be proved. In
other words, there must be a chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the innocence of the accused and it
must be such as to show that in all human probability the act must have been done by
the accused.168
The Supreme Court of India in Food Inspector Vizianagaram Municipality v.
Kurmapu Surayaparkash Rao,169 has held Rule 7(1) of Prevention of Food
Adulteration Rules, 1955 lays down the duties of Public Analyst. It is the duty of
Public Analyst to compare the seal on the container and the outer cover with specimen
impression received separately when sample is received from Food Inspector. If the
seal is found to be broken or the sample is unfit for analysis, he shall within 7 days
from the date of receipt of sample inform the authority about the same and will
requisition for sending second sample. The accused was acquitted for non-compliance
of Rule 7(1).
The Prevention of Food Adulteration Act provides minimum punishment of
imprisonment for six months which may extend to three years with fine. The Court's
sentence to the accused till rising of the day was in contravention of the statutory

166
Narayan Das v. State of Rajasthan, AIR 1978, Rajasthan 162.
167
KimtiLal v. State of Haryana, 1984, Cri LJ 690.
168
Hanumani v. State of M.P., AIR 1952 SC 343.
169
2001 Cri LJ 1101 (A.P.), See also New Delhi Muncipal Corporation v. Hardev Singh AIR 1980 Delhi
224, Food Inspector v Seetharam Rice and Oil Mills and Ors. 1975 Cri LJ 479 (SC), Prahladbhai
Ambalal Patel v. State of Gujrat and Anr. 1984 Cri LJ 1642

238
provisions, therefore, it was set aside.170 In State of Rajasthan v. Ladhu Ram,171 the
accused was searched and arrested for selling milk without license. Report was
written in black ink but signed by Food Inspector in blue ink. Person who had written
it did not signed it. Sole witness to search turned hostile, therefore, it is held that the
prosecution failed to prove the case beyond doubt.
Section 19 of the Prevention of Food Production Act 1954 has been substituted
for the old section by Act 34 of 1976. The present section has widened a definition of
company. Now along with company every person in charge of and responsible to the
company in the conduct of business at the time of offence and every Director,
Manager, Secretary or other officer would subject to the proviso be liable. The
vicarious liability of natural person in case of an offence under the Act by a company
will arise only if it is established that there is some nexus between him and crime.
Even where company has not been made accused, it can still to be pronounced guilty.
The following principles emerge from the cases on the section:
1. Where it is not certain whether the offence is committed by a Company the
vendor may be prosecuted individually with such other persons as may be liable
under section 7 of the Act.
2. Once it is found that a Company has committed the offence, the prosecution
should take all the particulars and prosecute the Company as primarily liable
with its directors, partners, secretaries and officers as would be vicariously liable
under section 17 of the Act read with Section 7.
3. The complaint petition must state as to how the Company and each of the
persons prosecuted is liable for the offence committed by the Company as
provided in section 17 of the Act.
4. The Company and each of the persons has to be separately charged.
5. The prosecution must discharge the burden of proof against each of them when
alone he will be put to defence.

170
K.S. Gurug vb. RamanadaParsad, 2001 Cri LJ 3072 (Sikkim), See also Ram lal v. State of Rajasthan,
AIR 2001 SC 47, Khem Chand v. State of Himanchal Pradesh, AIR 1994 SC 226, The Nagpur Hotel
Owners Assocition and Ors. v. The Corporation of city of Nagpur and Anr., AIR 1979 Bom. 190,
Muncipal Corporation of Delhi v. Motilal1972 Cri LJ 1536 (Delhi), Ram Bahadur v. State 1975 Cri LJ
1279 (All.), Subhas Chand v. State (Delhi Administration), AIR 2013 SC 395.
171
2002 Cri LJ 426, See also Laxmidharsahu v. State of Orissa 1989 (1) FAC 364, State of Himachal
Pradesh v. GulzariLal 2012 Cri LJ 2710 (H.P.), Centre for PIL and Anr. v. Union of India and Anr., AIR
2011 SC 1267.

239
6. As the Company is primarily liable and others are vicariously liable, anyone
successfully proving that at the time the offence was committed, he was not in
charge of and not responsible to the Company for the conduct of its business and
the offence was not committed with his consent or connivance and was not
attributable to his negligence, shall not be liable under section 17.
7. In case of a person coming under the purview of section 17, it may be unjust to
prosecute him as a vendor individually without the aid of section 17, for the act
constituting the offence was not of his choosing but of the Company or of one in
charge of management of the business of the Company and this he cannot show
outside section 17, and this may prejudice him. It is the Company which is
primarily liable, he is only one acting on behalf of the Company and vicariously
liable for it. He is not the vendor in real sense of the term.172
During the trial when it comes to the notice of the Magistrate, from the evidence
adduced, that the manufacturer, distributor or dealer of that article of food, which is
the subject-matter of adulteration is also concerned with the offence, then the Court
has been empowered to proceed against such manufacturer, distributor or dealer as if
prosecution has initially been instituted against him under Section 20 of the Act. In
fact, for general offences, S. 319(1) of the Code of Criminal Procedure empower the
Court whether during the course of enquiry or trial of an offence, if it appears from
the evidence for which such person could be tried to come with the accused, proceed
against such person for the offence which appears to have committed. In view of
Section 20(A) of the Act, whatever is contained in sub-section (3) of Section 319 of
the Code of Criminal Procedure would not stand in the way of the Magistrate to
proceed at a trial against any person, i.e. the original accused and against others
mentioned in Section 20-A. In other words, joint trial for the same offence is
permitted. The object appears to be that in a case where common evidence disclosed
that the manufacturer, distributor or dealer is also concerned with the offence for
which the prosecution was launched against a person from whom the article of food
was purchased, to find multiplicity of prosecution and also keeping in view the
doctrine of autrefois acquit the legislature introduced S. 20A to have joint trial.173

172
Binay Krishna v. State of Manipur, 1980 Cri LJ 273 (Gau): Mumbai v. State of Mah, AIR 1974 SC 434;
B.K. Verma v. Corp. of Madras, AIR 1971 Mad. 40; Durgamata Oil Mill v. Corp. of Calcutta, AIR 1969
Cal 247; Hanuman Prasad v. State of Assam, ILR (1953) Gau. 169.
173
Delhi Cloth & General Mills. v. State of UP, 1996 SC 283.

240
 "The opening lines of Section 20-A clearly contemplate a contingency where
the discretionary jurisdiction under this Act can be exercised only during the trial of
any offence, that is to say, the state at which the Magistrate can exercise the discretion
under this section must be before the trial has concluded and ended in acquittal or
conviction.174
The above provision in S. 20-A overrides the ban contained in Section 20 of the
Act that no prosecution shall be instituted for the offence under the Act except by or
with the consent of the authorities mentioned in the Section. The essential conditions
for invoking the power under Section 20-A are that: (1) the trial should have begun
already; (2) the trial must be of any offence under the Act allegedly committed by a
person other than the manufacturer or distributor or dealer of the food article; (3) the
Court must have been satisfied that such manufacturer or dealer or distributor is also
concerned with the offence; (4) such satisfaction must have been formed "on the
evidence adduced before the Court."175
In Bhupinder Singh v. Food Inspector, Civil Hospital, Punjab176 the prosecution
was launched by person appointed as Food Inspector for the whole of State of Punjab
and another local area of district Bathinda. He was so authorized by the Government
notification. It was held that prosecution can be said to be launched to be competent
authority. Following A.K. Roy v. State of Punjab,177 the question before the Hon'ble
Supreme Court was as to whether the Food Inspector, Faridkot was competent to
lodge a complaint against the accused appellants under Section 20(1) of the Act for
the commission of offence punishable under Section 16(1) (a) (ii) of the said Act by
virtue of the delegation of powers by the Food (Health) Authority, Punjab under
notification dated September 7, 1972, purported to have been issued under Rule 3 of
the Prevention of Food Adulteration (Punjab) Rules, 1958. In the reported case, the
Hon'ble Supreme Court noticed that the Food Inspector had been conferred powers of
the State Government under Section 20(1) of the Act of initiate prosecution by the
Food (Health) Authority, i.e. Director of Health Services. It was also noticed by the
Hon'ble Supreme Court that a perusal of the Director, Health Services and not the
State Government who had authorized the Food Inspector to launch prosecution for an
offence under the said Act. It was under those circumstances that was held by the
174
Municipal Corporation of Delhi v. R. Sahai, AIR 1979 SC 1544.
175
M/s Om Parkash Shiv Parkash v. K.I. Kuriakose, AIR 1999 SC 3870.
176
2002 Cri LJ 181 (P & H).
177
AIR 1986 SC 1960.

241
Hon'ble Supreme Court that it was, therefore, clear that the Food Inspector was not a
person who had been authorized by any general or special order issued by the Central
Government or the State Government. It was further held that there would be no
problem if the State Government were to issue a notification under Section 20(1) of
the Act conferring authority on the Food Inspector, under Section 20(1) to launch,
prosecution for an offence under the Act. It was further held by the Hon'ble Supreme
Court that a careful analysis of the language of Section 20(1) of the Act clearly shows
that for the institution of prosecution for a offence under the Act. One of the two
conditions is to be fulfilled. Either the prosecution must be instituted by the Central
Government or the State Government or a person authorized in that behalf by the
Central or State Government, or the prosecution must be instituted with the written
consent of any of the specified categories of authorities or persons. It was further held
that if either of these two conditions is satisfied, there would be sufficient authority
for the institution of such a prosecution for an offence under the Act. It was further
held that the provision contained in Section 20(1) of the Act does not contemplate the
institution of a prosecution by any person other than those designated.
Power of the Court to implead the manufacturer or dealer in cases involving
offences under the Act, is envisaged in S. 20-A of the Act178. The provision overrides
the ban contained in Section 20 of the Act that no prosecution shall be instituted for
the offences under the Act except by or with the consent of the authorities mentioned
in the Section. One of the differences between S. 319 of and S. 20-A of the Act is that,
while in the former even if it appears to the Court from the evidence (either during
inquiry or trial of the offence), that another person is to be tried along with the already
arraigned accused, then the Court can proceed against that other person, while in the
latter, the satisfaction of the Court that such manufacturer (distributor or dealer) is
also concerned with that offence must be gathered from "the evidence adduced before
it during the trial". In other words, the power under S. 20-A cannot be invoked until
the trial begins and after the trial ends. The trial of offences under the Act begins
when the Magistrate asks the accused whether he pleads guilty or not as envisaged in
S. 251 of the Code, if the Magistrate opts to hold summary trial. Hence, evidence in a
trial under the Act can be adduced only after recording the plea of the accused as

178
O.P. Prakash v. K.I. Kuriapose (1999)8SCC 633, Radha Krishna Nair v, Food Inspector 1989 (1) FAC
234, Thakur Das Babu Ram v. State of Himanchal Pradesh, 1989 (1) FAC 343. See also Food
Inspector v. SeethramRice and Oil Mills 1975 Cri LJ 479 (SC), Prahladbhai Ambalal Patel v. State of
Gujrat and Anr. 1984. Cri LJ 1642, Subhas Chand v. State (Delhi Administration) AIR 2013 Cri LJ 2710
(H.P.)

242
envisaged in the said section. Thus, it is clear that a Magistrate can implead any
person under S. 20-A of the Act only after reaching the stage envisaged in S. 254(1)
of the Code. The power cannot be invoked before stage of adducing evidence in trial,
nor can it be invoked after the conclusion of trial.
Therefore, where the accused soon after entering appearance in the Court filed a
petition to implead the appellant firm as an accused in the case on the premise that
accused purchased the Toor Dhall from the appellant company and at that stage the
plea of any of the accused was not recorded nor even asked by the Magistrate before
he ordered impleadment of the appellant, the impleadment of appellant firm is
179
premature and hence the action is without jurisdiction.
Law with regard to Section 20(AA) is well-settled by several decisions of the
Court. If the age of a person convicted is less than 18 years, he would be entitled to
the benefit of S. 20(AA) of the Act. For the purpose of applicability of this Section,
the relevant date is the date of commission of the offence and not the date of
conviction.180
In Ozair Husain v. Union of India,181 a public interest litigation was filed to (i) a
direction to the respondents to protect the rights of innocent conscientious consumers
who object to the use of animals in whole or in part or their derivatives in food,
cosmetics and drugs, etc. by making the manufacturer and packers thereof to disclose
the ingredients of the aforesaid products so that they make an informed choice with
regard to their consumption; (ii) a direction to the manufacturers and packers of
cosmetics, drugs and articles of food for complete and full disclosure of the
ingredients of their products being sold to consumers; (iii) a declaration that the
consumers have a right of making an informed choice between the products made or
derived from animal and non-animal ingredients; and (iv) a direction to the
manufacturers and packers of food, cosmetics and drugs that the products made from
animals should bear an easily identifiable symbol conveying that it has an animal
ingredient. The petitioner seeks the directions and declaration keeping in view the fact
that about 60% of the people of this country are vegetarians so that they can make an
informed choice of products as per their beliefs and opinions.

179
M/s/ Om Parkash v. K.I. Kuriakose, AIR 1999 SC 3870.
180
Rakesh Kumar v. State, 2001 Cri LJ 2978 (Delhi); Rajbir v. State of Haryana, 1999 SCC (Criminal)
1142; Municipal Corporation, Delhi v. Tek Ram, 1976 FAC 140, MCD v. Ved Ram. 1976 (2) FAC 155;
Narender Kumar v. State of Delhi, 1980, Cri LJ (NOC) 121, KailashNathGoel v. Union of India and
Others 2001 Cri LJ 333 (SC)
181
AIR 2003 Del. 103.

243
 Recommending a similar change on drugs also the Delhi High Court held that
where packages of food products, drugs and cosmetics do not disclose any
information in writing and by an appropriate symbol about the composition of the
products contained therein, right to freedom a conscience of the consumers is violated
as they may be unconsciously consuming a product against their faiths, beliefs and
opinions.
In view of the aforesaid discussion that it is the fundamental right of the
consumers to know whether the food products, cosmetics, and drugs are of non-
vegetarian or vegetarian origin, as otherwise it will violate their fundamental rights
under Articles 19(1) (a), 21 and 25 of the Constitution.
4.6 THE ESSENTIAL COMMODITIES ACT, 1955-
The Essential Commodities Act, 1955 as enacted to ensure easy availability
of essential commodities to the consumers and to protect them exploitation by
unscrupulous traders. The Act provides for regulation and control of production,
distribution and pricing of commodities, which are declared as essential for
maintaining or increasing supplies or for securing their equitable distribution and
availability at fair prices.
The object behind the power exercisable under section 3 (1) is for maintaining
or increasing supplies of any essential commodities or for securing their equitable
distribution and availability at fair prices. Their power vests with the Central
Government. Section 3 (1) provides that if the central is of the opinion that is
necessary or expedient so to do for maintaining or increasing supply of any essential
commodity or for securing their equitable distribution and availability at fair prices, or
for securing any essential commodity for the defence of India or the efficient conduct
of military operations, it may by order, provide for regulation or prohibiting the
production, supply and distribution thereof and trade and commerce therein. And in
order to achievement the above said objectives, various kinds of orders may be passed
by the Central Government without prejudice to the generality of powers conferred on
it by section 3182. The Supreme Court of India in Y. Eswariach Chaudhary v. Govt. Of
A.P. and Others,183has held that for the exercises of power under section 3(1), there is
a condition precedent that the Central Government should be of the opinion that it is
necessary or expedient to regulate the production of any essential commodity for one

182
Clauses (a) to (h), sub section (2) of section 3 of the Essential Commodities Act, 1955.
183
AIR 1974 SC 96 .

244
of the purposes mentioned by it. Non-recital of Central Government formation of
opinion would not invalidate an order passed by it. In Hamdard Dawakhana v.
U.O.I184 it is held that the very fact that Central Government has passed an order
exercising the power under section 3(1), there is presumption that Central
Government has formed an opinion. This fact need not be mentioned in the order.185
The prior satisfaction of the Government passing an order subject in nature and it is
not open to a court to law to look into the adequacy or inadequacy of the material on
the basis of which the Government forms its opinion.186 It is so because normally such
order are passed to meet urgent emergency situations.187 Since one of the objectives of
the passing of the Act is equitable distribution of essential commodities and making
them available at fair prices for the general public, an order would not become
arbitrary if it is limited in point of time. If such a price control order brings about an
improvement in the supply position or if during that such an order is in operation
there is a fall in price so as to bring an essential commodity within the reach of the
ordinary consumer, the order shall have lost its justification and would in all
probability be withdrawn.
Discussing about the effect of fixation of fair price of a commodity on the
fundamental right to carry on business, Supreme Court in Shree Meenakshi Mills Ltd.
v. Union of India,188 had laid down that if fair price is to be fixed leaving a
reasonable margin of profit, there is never any question of infringement of
fundamental right to carry on business by imposing restriction.189 Hence, power of the
control Government under section 3 of the Act, in fixing the maximum price of a
commodity is not hit by Art 19 (1) (f) and (I) of the constitution. Clause (c) & (f)
of sub-section (2) and sub-section (3) of section 3 of Act are saved by clause (5) and
(6) of the Act 19 of the constitution and hence are not void as offering sub-clauses (f)
& (I) of clause (1) of that Article.190

184
AIR 1965 SC 1167.
185
ParamjitKhad store Kapurthalav. Union of India AIR 1992 P&H 68.
186
Pavinbhai Desai v. State of Gujrat 1990 Cri LJ 518. See also Municipal Corporation of Delhi v. Shiv
Shankar 1971 Cri LJ. 690, Ashoka Smokeless Coal Industry v. Union of India (2007) 2SCC 640,
AdarashKrishiSewaKendra v. Government of M.P. and Anr., AIR 1981 M.P. 44, Rhombi Laboratory
Sarda v. State of Maharastra2002 Cri LJ 1040 (Mah.)
187
Jai Bharat Cold Storage v. State, AIR 1980 P&H 52.
188
(1974) I SCC 468.
189
Ibid.
190
Thanmal v. Union of India, AIR 1959 Raj 206.

245
4.6.1 HOLDING IN STOCK-
The Supreme Court in M/S Bishmber Dayal Chander Mohan v. State of U.P,191 has
held that regulatory provision under section regulatory provision under section 3
(2)(f) has been enacted to check evasion violation of stock limit specified by control
order. The control is an anti-hoarding measure so as to prevent black-marketing and
speculation in the basics of essential commodities. Looking at a control/levy order in
this background, it cannot be said to be violative of Art (1) (I) or Art. 14 of the
constitution. Again in Jash Karan Rathiv. State of West Bengal192the accessed was
found to have stored pulses in excess of the permissible limit. So it is held by the
court that collector was justified in passing order of confiscation. Similarly in Smt.
Nayan Tara Rai v. State of U.P & Others193 a complaint was lodged by an M.L.A that
the manager of the petrol pump, in question, declined to supply him the diesel on the
plea that the same had been exhausted. When the police switched on three pumps, no
diesel come out of the nozzle. However, the dip showed approximately 20 liters of
diesel in all the pumps together. The court held that in these circumstances, no case
under section 3 of the Essential Commodities Act, 195 could be made out due to the
reason that quantity of diesel in the underground tank was too small that electrical
pumps were not in a position to lift the same for its delivery to motor vehicles.
Therefore, no criminal ability of any hand of violation under section 3 of the Act was
imposed on the owner or manager of the pump.
The Supreme Court of India in NajendraRao& Co. v. State of Andhra
Pradesh,194 has held that the expression it is otherwise expedient in the public interest
in section 6-A(2) has to be understood so as to advance the legislative object of
ensuring that the goods do not suffer either in quality or quantity, for instance,
fertilizer many not be susceptible to speedy and natural decay but it is expedient in
public interest to ensure that it is either sold to agriculturist or at least before the next
session.

191
AIR 1982 SC 33, See also The Belsund Sugar Co. Ltd. v. The State of Bihar &Ors.Etc, AIR 1999 SC
3125, ChandrakantPinayamalMotwan v. State of Maharastra,2000 Cri LJ 1935 (Bom.), Mukesh v
State of Rajasthan 1996 Cri LJ 2436 (Raj), Sobha and Anr. v. State, AIR 1963 All. 29, Suresh
GovvubhaiJadeja v. State of Gujrat 2000 Cri LJ 1224 (Guj.), S. Samual, M.D Harrison Malyalam and
Anr. v. Union of India, AIR 2001 SC 218.
192
2001 Cri LJ 182(WB). See also S. Thimmarayan v. The Secretary to Govt. Dept. of Consumer Affairs
Govt. of India & Others 2014 Cri LJ 283 (SC).
193
2001 Cri LJ 2844 (U.P.)
194
AIR 1994 SC 2663

246
 The Supreme Court in Harbhajan Singh v. State of M.P.195has held that
having regard to the scheme of Ss. 6A, 6B, 6C of the Act, the policy of the law
becomes abundantly clear S. 6-A if confirms power on the collector of district, in
which the essential commodity is seized in pursuance of an order made under section
3, to order confiscation of the essential commodity, any package, covering etc. And
any animal, vehicle etc. If he is satisfied that there has been any contravention of the
order.
However if no contravention is shown or proved, there can be no occasion for
passing an order in exercise of the powers. Inferred under section 6-A of the Act.196
After the amendment of the Act in 1976,197 the order condor section 6-A can be
passed by Addl. Collector as according to the provisions of section 2(1) (a) as
introduced by amendment Act of 1976, collector includes additional collector.
4.6.2 PRECONDITION FOR CONFISCATION-
Section 6-A contemplates seizure of goods and it is only thereafter that order of
confiscation can be issued by collector. Therefore, unless there was seized, there
cannot be confiscation. In Jash Karan Rathi v. State of Bengal198 the accused was
found to have stored pulses in excess of the permissible limits, the raiding party
seized pulses and the collector on being. Satisfied, issued order of confiscation before
making an order of confiscation the three essential preliminary steps must be taken:
(I) The person concerned is required to be to be served with notice in
writing. Informing him of the grounds on which it is proposed to
confiscate the essential commodity.
(II) He should be given an opportunity of making representation in writing
within specified time.
(III) Be given an opportunity of being heard in the matter.199

195
AIR 1978 SC 150.
196
MitthanlalSiyaram v. State of M.P. 1987 Cri LJ 13 (M.P.) See also Harnek Singh v. State of Punjab
1999 Cri LJ 635 (P&H), Greater Hyderabad and Petroleum Products Dealers Association v. Union of
India, AIR 2006 AP 349
197
Amendment Act 32 of 1976.
198
2001 Cri LJ. 182, See also Khokhan Chandra Singh & other v. State of Bhar 2001 Cri LJ 1310 (Pat.),
kartik Chandra Saha v. The State, AIR 1968 Cal 127, State of Karnataka v. Lobo Medical and Anr.
1978 Cri LJ 1837 (Kar.), Suresh Chand v. State of Rajasthan 1985 Cri LJ 1750, Bijoy Kumar Routra v.
State of Orissa, AIR 1976 Ori 138, Elluro Chandra Obul Reddy v. Joint Collector and Ors. 2009 Cri LJ
427 (A.P.)
199
ChandeswarMahto V. State of Bihar 1978 Cri LJ 672.

247
 Similarly in Chellaiyan and another v. The Ex Officio Secretary to Government,
Co-operation, food and consumer protection Dept. And others200, a consignment of
paddy in a lorry was being illicitly transported towards Kerala without any valid
records. It was signaled to stop the lorry for checking but the driver did not stop the
lorry but the same was intercepted at the next junction. Since the consignment in the
lorry was not covered by any valid bill, permit, levy clearance certificate, the lorry
with paddy was seized. Driver and cleaner of the lorry, on being questioned, revealed
that owner of the lorry had knowledge about all this. All these circumstances were
held sufficient enough for passing order of confiscation.
Power of confiscation is discretionary,201 but not arbitrary.202 Discretionary is
not discrimination. This power is not without any guidelines or arbitrary discretion.203
Legislature was conscious of the fact that while in its wisdom it was empowering the
collector to order confiscation, his order would be penal in nature also that question,
relating to rights and liabilities based on general law may be involved. It was
therefore deemed just and proper that the collectors exercise of power should be open
to scrutiny by Judicial Court.204
Sale of Confiscated Commodity
Section 6A (2) provided that when the collector is of the opinion that the essential
commodity is subject to speedy and natural decay or it is otherwise expedient in the
public interest to do so, he may:
(I) Order the same to be sold at controlled price.
(II) where no such price is fixed or the same to be sold by public auction.205
Further section 6A (3) specified that the money so realized shall be paid to the owner
thereof of the person from whom it is seized in three contingencies (a) when no order
of confiscation is ultimately passed by the collector (b) when the person concerned is
acquitted in a prosecution instituted for the contravention of the order and (c) when
the order passed on appeal against the confiscation order directs refund. Where in an
appeal the accused is acquitted of an offence under section 7 and the order of
confiscation is set aside, it would be incumbent upon the court to restorer the
confiscated properly.206

200
2001 Cri LJ. 590 (Mad.).
201
State of A.P v. BathuPrakasaRaoetc, AIR 1976 SC 1845.
202
Sundari Devi v. State of W.B. Cri LJ 1391.
203
Umedisinh v. State, AIR 1977 Guj. 11.
204
Harbhajan Singh v. State of M.P, AIR 1978 SC 150.
205
Mariappa v. State of Karnataka, 1991 Cri LJ 1167(Kar).
206
SavitriKapur v. State of Haryana, 1983 Cri LJ 1135(P&H).

248
 The Act provides for a right of appeal to any person aggrieved by an order of
confiscation under section A and not against contravention of section 6-B. The
appellate authority has all power of original authority,207 and has the power of
remand208 any person aggrieved by an order of confiscation under section within one
month from the communication of him of such order, appeal to any Judicial authority
appointed by the State Government concerned and the Judicial authority shall, after
saving an opportunity to the appellant to be heard, pass such order as it may think fit,
confirming modifying or annulling the order appealed against.209
The Supreme Court of India in Ramesh Chandra Guptav. State of U.P.,210 has
held that the proceedings under section 6A and 6C of the Act are quite separate from
the prosecution. One has no connection with the other. Thus, where an order for
confiscation of goods passed under s-6A was set aside by the session judge in an
appeal under S.6C, the order of session Judge Setting aside order for confiscation of
goods would not affect the validity of cognizance of the magistrate of the complaint
under S. 7. In Sri Krishna oil & general Merchant & commission agents v. State of
A.P.211 it is held that where a prosecution under section 7 of the act for contravention
of an order under S-3 ends in acquittal, the satisfaction recorded by the collector
under s- 6A in respect of the alleged contravention stands annulled or obliterated by
the finding of the criminal court that there was no contravention committed.
Consequently, the owner of the essential commodities is entitled to the return of the
essential commodity in spicier if converted into money, the return of money with
reasonable interest under section 6-C (2) of the Act.
If any prosecution for any offence under this Act which requires a culpable
mental state on the part of accused, the court shall presume the existence of such
mental state212 but it is a rebuttable presumption and it would be open for the accused
to prove that he had no such mental state with respect to the act charged.213

207
Madhav v. State of Maharastra, 1977 Cri LJ 1800(Mah).
208
M/S Ganga electrical v. State, 1991 Cri LJ 61, See also Dal Chand v. State of M.P 1977 Cri LJ
1394(MP)
209
Section 6C of the Essential Commodities Act, 1955.
210
1983 Cri LJ 184 (UP).
211
1984 Cri LJ 173 (AP).
212
section 10C of the Essential Commodities Act, 1955.
213
M/S ShriLaxmi Trading Co. v. Additional district Magistrate CCSS, Rourkala, 1989 Cri LJ 659 (SC).

249
 The Supreme Court of India in S.A. Ismail v. Inspector Of Police, Vigilance Cell,
Tirupathi214 has held that considering the drastic nature and social need for the law
such as the Essential Commodities Act, the Act is entrenched in 9th Schedule to the
Constitution. One of the power is to arrest and detain a dealer in essential
commodities. What the Constitution intended to be saved should not be destroyed by
lax enforcement. Grant of anticipatory bail is antithetical to the purpose of Essential
Commodities Act. Similarly in Amrit Singh v. State of A.P215 FIR prima facie
disclosed the commission of cognizable offence for alleged adulteration of cement
under Essential Commodities Act. It was noticed that the accused was involved in as
many cases as 17 more cases and was not joining investigation. It was held that he
was not entitled to the grant of anticipatory bail.
4.7 SOME MORE IMPORTANT CASE LAWS ON WHITE COLLAR
CRIMES-
Explaining the gravity of white collar crimes the Supreme Court in State of Gujarat v.
Mohan Lal Jitamalji Porwal and Another,216has held that unfortunately in the last few
years, the country has seen an alarming rise in white-collar crimes which has affected
the fiber of the country's economic structure. These cases are nothing but private gain
at the cost of public, and lead to economic disaster." In the present case also, if not
national interest, but in view of the rampant white collar crimes in the field of
cooperative banking business of the State, it can hardly be denied that it has adversely
affected the economic conditions of the public at large in general and the class of
depositors in particular whose life saving money in either deposited or whose
livelihood is dependent on the income of interest.
The cause of the community deserves better treatment at the hands of the Court
in the discharge of its judicial functions. The Community or the State is not a persona
non grata whose cause may be treated with disdain. The entire community is
aggrieved if economic offenders who ruin the economy of the state are not brought to
book; A murder may be committed in the heat of moment upon passions being
214
1984 Cri LJ 1855 (AP).See also Karamchand v. State of M.P. 1985 Cri LJ 1561 (MP), Amar NathSahu
v. State of Chattisgarh 2007 Cri LJ 3014 (Chh.), PijushKantiDey v. State 1985 Cri LJ 1664 (Cal),
Somnath v. State of Haryana 2001 Cri LJ 2733 (P&H),
215
1995 Cri LJ 3771 (Del.)
216
AIR 1987 SC 1321, See also Ram Chandra MalwaLal Varanasi v. State of Uttar Pradesh, AIR 1987 SC
1837, Hari Ram Paras Ram and Ors. v. State of Haryana, AIR 1982 P&H 108, Hoechst
Pharmaceutical Ltd. v. State of Bihar, AIR 1983 SC 1019, Ambika Prasad Rajwade and Ors. v, State of
Chattisgarh and Ors. AIR 2006 Chh. 107, KasurabudaRajeswaraRao v. State of A.P. 2004 Cri LJ 1836
(A.P.).

250
aroused. An economic offence is committed with cool calculation and deliberate
design with an eye on personal profit regardless of the consequence to the
Community. A disregard for the interest of the community can be manifested only at
the cost of forfeiting the trust and faith of the community in the system to administer
justice in an even handed manner without fear of criticism from the quarters which
view white collar crimes with a permissive eye unmindful of the damage: done to the
National Economy and National Interest.
Again Mohammad Giasuddin v. State of Andhra Pradesh,217it is held that the
whole man is a healthy man and every man is born good. Criminality is a curable
deviance. If every saint has a past every sinner has a future and it is the role of law to
remind both of this. Man is subject to more stress and strains in this age than ever
before and a new class of crimes arising from restlessness of the spirit and frustration
of ambitions has erupted. White collar crime, as in the present case, as in the present
case, belong to this disease of man's inside. Barbarity and injury recoils as injury so
that if healing the mentally or morally maimed or malformed man is the goal,
awaking the inner being more than torturing through exterior compulsions, holds out
better curative hopes. The infliction of harsh and savage punishment is thus a relic of
past and regressive times. Therefore, a therapeutic, rather than a terrors outlook
should prevail in our criminal courts.
The question of imposing death penalty on white collar offender was considered
by the Supreme Court in Rajendra Prasad v. State Of Uttar Pradesh,218It is held that
if the Courts were to be guided by the classification for inflicting death penalty only
in the case of three categories of criminals, namely, (i) for white collar offences (ii)
for anti-social offences, and (iii) for exterminating a person who is a menace to the
society, that is, a 'hardened murderer', the death sentence for an offence of murder
punishable under section 302, for all practical purposes would be virtually non-
existent. Unfortunately our penal laws do not provide for death sentence for either
white collar crimes or anti-social offences. As regards 'hardened' murderers, there are
few to be found. Many murders unfortunately go undetected and many a brutal
murderer has to be acquitted for want to legal evidence bringing his guilt beyond
reasonable doubt. Nevertheless, when the guild is proved, the Court should leave
aside all humanitarian considerations if the extreme penalty is called for. A

217
AIR 1977 SC 1926.
218
1979 SCR (3) 78

251
'professional' murderer must, as matter of course, be sentenced to death because he is
menace to the society. Whatever sympathy the Court can have should be reserved for
the victims of the crime rather than for the perpetrators. In such cases, the law must
take its course.
Again in Mohan Lal v. State of Rajasthan and Ors.,219 it is held that white collar
crimes and there again, 'economic crimes', shocking and rocking the entire society,
ever increasing either in the form of 'black marketing' or 'food adulteration' or
'smuggling', have assumed disastrous dimensions, providing manifold litigation. The
snail moving, haulting and faultering speed, with which the administration and
prosecution both act rather in-act is not only shocking, but is challenging the very
utility of the laws which are fast 'break-ing and cracking' on account of this lethargy,
indifference and 'red tapism'. Whether, this tantamount to moral abetment or
acquiescence is a question to be answered by law-makers and not law-interpreters, if
not, the decision would be of pauserity (posterity?) alone and not courts of law.
Following the same trend in ITO v. Gopal Dhammani,220, wherein it was
observed that in serious economic and anti-social white collar crimes, the rule should
be jail and not bail. Again Fatehlal v. State of Rajasthan,221it is held that making the
supply of fertilizer scare and selling it at higher rates than prescribed (black
marketing) is bound to have a disastrous impact on the State's efforts to stablize the
country's economy. Smugglers, hoarders and black marketers have no country, caste
or nation of their own. Their only 'God' and concern is the yellow metal 'Gold'. The
offence for which the accused petitioner has been convicted is of the species of
economic' crime which need to be curbed effectively the ineffectiveness of
prosecution in arresting the wave of white-collar crime must disturb the judges
conscience. The Court is not a computer which registers what is fed into. It and
answers by mechanical intelligence but a human being to get at the truth and public
good. An anti-social adventurer cannot claim for his nefarious and injurious activities
any greater legal regard than for the defence of society itself. If members belonging to
higher status in life should show scant regard for the laws of this country which are
for public good, for protecting the common man, the consequential punishment for the
violation of such laws must be equally deterrent and such person should be made to

219
AIR 1981 SC 3.
220
AIR 2011 SC 45.
221
AIR 2012 SC 12.

252
suffer in equitable for the harm he has done to the society. So the Court did not
consider it to be a fit case in which benefit of Section 4 of the Probation of Offenders
Act may be extended to the accused petitioner. The Law Commission also had in its
47th Report recommended the exclusion of the applicability of probationary process in
the case of special and economic offences. The revision petition is therefore dismissed
in limine and the conviction and sentence awarded to the accused-petitioner by the
courts below are upheld. Similarly in G.B.S. Omkarv. ShriVenkateswara
University,222 it is held that white-collar crimes must be dealt with much more
severely than crimes of passion.
Following the same trend in Statev. Bharat Chandra Roul,223 it is held that
bribery and graft by public officers is one of the important crimes which have been
characterized as white collar crimes. The rise of such crimes in many countries has
coincided with the progress made in those countries in the economic and industrial
fields. It is hardly surprising that the two processes should go together considering
that most of the white-collar crimes are, directly or indirectly, connected with the
production and distribution of wealth. In a welfare State, the Government tends to
control a vast number of means of production and distribution of goods and material
services. The Constitution of India provides that the State shall in particular direct its
policy towards securing that the ownership and control of the material resources of
the community are so distributed as best to sub serve the common good that the
operation of the economic system does not result in the concentration of wealth and
means of production to the common detriment. During the last several decades the
country has seen the execution of various five-years plans involving huge expenditure
by the Government for various nation-building activities. The corrupt officers,
businessmen and contractors never had it so good. No doubt the country did make
some progress, but a big chunk of money earmarked for developmental projects has
been pocketed by the white-collar criminals.
Similarly in State of Gujarat v. Mohanlal Jitamalji Porwal and Anr.,224Hon'ble
Supreme Court observed as under:-
"The entire community is aggrieved if the economic offenders who ruin the
economy of the State are not brought to books. A murder may be committed in the

222
AIR 1981 SC 163.
223
1995 Cri LJ 2417.
224
AIR 1987 SC 1321. See also Ram Narayan Popli v. CBI 2003 (3) SCC 641.

253
heat of moment upon passions being aroused. An economic offence is committed with
cool calculation and deliberate design with an eye on personal profit regardless of the
consequence to the Community. A disregard for the interest of the Community can be
manifested only at the cost of forfeiting the trust and faith of the Community in the
system to administer justice in an even handed manner without fear of criticism from
the quarters which view white collar crimes with a permissive eye unmindful of the
damage done to the National Economy and National Interest."
Again in Champak bhai Amir bhai Vasava v. State of Gujarat,225 It was held
by Court that if the employee of the bank would commit such serious offence then,
the customer whose amount has been lying in the bank will not be safe and the
amount will not be secured. As per my view, such matters cannot be viewed lightly
and, therefore, merely in view of the long detention or that there are no chance of his
absconding or about tampering with the evidence are not the only criteria to be borne
in mind while considering the bail application but there are other considerations while
examining bail application to the effect that if the serious offence is committed by the
petitioner which would be adversely affecting the public at large, society at large,
discretion cannot be exercised. If such offences are viewed lightly, then, the
confidence of the public in the Scheduled Banks will be shaken and, therefore, The
Court held that this is not the fit case for exercise the powers under section 439 of the
Code of Criminal Procedure and the bail application is therefore rejected.
Similarly in Lalit Goel v. Commissioner of Central Exercise,226 this Court, while
dealing with bail application in a case of Customs Act, observed that the economic
offences constitute a class apart and need to be visited with a different approach in the
matter of bail. Noticing ever growing materialistic outlook setting unscrupulous
elements on a prowl to maximize material gains by unlawful means, this Court even
suggested appropriate legislative measure and judicial intervention to safeguard the
interest of the State and public at large.
Again in Prem Kumar Parmar v. State227 this Court observed that the offences
such as cheating and forgery bring imbalance in the economy of the country, which
has the effect of making the life of majority of people, particularly those belonging to
economically weaker sections of the society miserable and that such economic
offences are worse than murders.

225
2001 Cri LJ 4475(Guj.).
226
2007 (3) SCC 2282.
227
ILR 1989 Delhi 15.

254
 It is true that the petitioner has been in custody for more than eight months and
the charge sheet has already been filed, but considering the huge amount of public
money, being retained by him, his having been in custody for eight months by itself
would, in the facts and circumstances of this cases, not entitle him to grant of bail at
this stage. The economic offences having deep rooted conspiracies and involving
huge loss of public funds whether of nationalized banks or of the State and its
instrumentalities need to be viewed seriously and considered as grave offences
affecting the economy of the country as a whole and thereby posing serious threat to
the financial health of our country. Therefore, the personal involved in such offences,
particularly those who continue to reap the benefit of the crime committed by them,
do not deserve any indulgence and any sympathy to them would not only be entirely
misplaced but also against the larger interest of the society. The Court cannot be
oblivious to the fact that such offences are preceded by cool, calculated and deliberate
design, with an eye on personal gains, and in fact, not all such offences come to the
surface. If a person knows that even after misappropriating huge public funds, he can
come out on bail after spending a few months in jail, and thereafter, he can continue
to enjoy the ill-gotten wealth, obtained by illegal means, that would only encourage
many others to commit similar crimes in the belief that even if they have to spend a
few months in jail, they can lead a lavish and comfortable life thereafter, utilizing the
public funds acquired by them.
The Supreme Court in Prashant Kumar v. Mancharlal Bhagatram Bhatia,228 has
held economic offences are increasing all the time .The smugglers disrupt the
economy of the nation and erode the valuable foreign exchange. It is necessary to
facilitate the investigation into economic offences and the remand courts should not
ignore this aspect while considering the question of liberty of a suspect. It should be
born in mind that the common good of the society should be properly balanced
against the individual liberty.
Again in State of Maharastra v. Ketan Parekh,229 while considering the question of
bail in white collar crimes, whether custody of accused is required for the purpose of
investigation and if he is released on bail whether he is likely to abscond, are relevant
considerations. Questions whether the transaction in question was purely a civil
transaction and whether any criminal liability arises against the accused is not to be

228
1988 Cri LJ 1463 (Bom.)
229
2008 Cri LJ 542 (Bom)

255
decided at the stage of bail application. Similarly in Sunil Kumar v. State of
Haryana230Dr. B.S. Chauhan, J has opined that criminals do not hesitate in
approaching the courts, even by abusing the process of the court and sometimes
succeed also. The instant case belongs to the same category. The petitioner feels that
merely because he has a black marketeer and succeeded in exploiting the helplessness
of the poor people of the society and is capable of engaging lawyers ,he has a right to
use, abuse and misuse the process of the court and can approach any court any time
without any hesitation and without observing any required procedure prescribed by
law.
Similarly in N. Sasikala v. Enforcement Directorate,231 the was charged under
Section 9 of FERA for an offence making unauthorised payment to a foreign supplier,
considering the gravity and magnitude of complicity of the accused, stage of
investigation required to be conducted in India and abroad and the possibility the
existing situation would be unsettled if accused was released on bail which might
cause obstacle for further investigation, the Madras High Court declined to grant bail.
Similarly in Jayanti Dhrama Teja (Dr.)v. State232 the accused was involved in an
offence under Ss. 409, 467, 420, 477A, and 120B of the Indian Penal Code 1860 for
the alleged embezzlement of a sum of about two crore rupees in foreign exchange out
of the funds belonging to a corporate body of which the accused had been the
Chairman. Rejecting the bail application it was held by the Delhi High Court that
there was a well-founded reasonable apprehension about the accused escaping from
India and becoming fugitive from justice if he were released on bail.
4.8 CONCLUSION
So we may conclude that the efforts to contain white collar criminality in India
lay with the legislature and the courts only supplement the legislative efforts. Whether
it was the Indian Penal Code 1860 or some other special penal law, principles of strict
liability, mens-rea or vicarious liability etc. were incorporated specifically and spelt
out therein and thus the courts had to follow the letter of Law in this behalf and could
not travel beyond the enacted law. Nonetheless, the courts in Independent India had
not been slow to recognize the evil of white collar crimes and were not oblivious of

230
(2012) 7SCC 407.
231
1997 Cri LJ 2127 (mad), See also Lambert Kroger v. Enforcement Directorate 2000 Cri LJ 2125 (Del.),
Jasdeep Singh Bains v. State of Union Territory, Chandigarh 2004 Cri LJ 2318 (P&H),
DashrathbhaiBholidas Patel v. State of Gujrat 2004 Cri LJ 4369 (Guj.)
232
1972 Cri LJ 127 (Del.)

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the need to adopt themselves to meet the same within the framework of enacted law.
The Public Interest Litigation has proved to be a strong and potent weapon in the
hands of the Courts enabling it to unearth many scams and corruption in public life
and to punish the guilty involved in those scams. Hawala scam, fodder scam, St. Kits
scam, Coal scam, 2G Spectrum scam, Chopper scam, Ayurveda medicine scam and
Illegal allotment of Government houses and petrol pumps scam have come to light
through the help of Judiciary. So we may conclude that even though in India the
major efforts to contain, control and regulate the white collar crimes was on the
legislative plane, but it is heartening to know that the judiciary has also played quite a
significant role in this regard by properly interpreting the various provision of the
Prevention of Corruption Act 1988, the Prevention of Food Adulteration Act 1954,
the Narcotics Drugs and Psychotropic Substances Act 1985 etc. to achieve the desired
results and to save our economy and society from the clutches and bad effects of
white collar crimes.

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