Socio-Economic Offences (WCC)

Socio-Economic Offences
KRISHNA MURARI YADAV

Assistant Professor, LAW CENTRE – 1, FOL, University of Delhi
ii
by –
Krishna Murari Yadav

Assistant Professor
Faculty of Law, University of Delhi, Delhi
(Former Assistant Professor – Puducherry & Varanasi)
Krishna Murari Yadav, Assistant Professor, LAW CENTRE – 1, University of Delhi

iii
DEDICATED TO MY BROTHER & EARTHLY GOD

Mr. Kailash Nath Yadav
Contents

iv
S. Nos. Acts Pages

1 Socio-economic Offences [WCC] 1 -13
1 Immoral Traffic and Prevention Act, 1956 14 – 38
2 NDPS Act, 1985 39 – 81
3 Food Safety and Standard Act, 2006 82 – 111
4 Prevention of Corruption Act, 1988 112 – 144
5 Prevention of Money-Laundering Act, 2002 145 - 172

UNIT -1
INTRODUCTION TO THE SOCIO-ECONOMIC OFFENCES
Krishna Murari Yadav,

Assistant Professor,
LAW CENTRE – 1, FOL
University of Delhi, Delhi.
SYLLABUS
(A). Concept and Evolution of ‘Socio-Economic Offences.’
(B). Nature and Extent of Socio-Economic Offences.
(C). Mens Rea, Nature of Liability, Burden of Proof and Sentencing Policy.
(D). Concept of White Collar Crimes - Sutherland’s theory of ‘Differential Association.’
(E). Distinction among Socio-Economic Offences, White Collar Crimes and Traditional
Crimes.
(F). Socio-Economic Offences in India: The Santhanam Committee Report, 1964 and the
47th Report of the Law Commission of India, 1972.
Previous Years Question Papers
2015
Question 1- Discuss the concept and nature of ‘socio-economic offences’. Explain evolution
and reasons for development of the same in Indian context.
2016 (May be)
Question 1 (a) – Discuss the development in the concept of ‘Socio-Economic Offences in India
in view of Santhanam Committee Report of 1964 and 47th Report of the Law Commission of
India, 1972.
Question 3 (a) – Differentiate between the traditional crimes and socio-economic offences.
2017
Question 1 (a) Discuss the concept and evolution of ‘Socio-economic offences’ in India.
Question 1 (b) – How are the concept, viz., Mens Rea, Nature of liability, Burden of proof and
Sentencing applicable in Socio-Economic Offences statutes?
2018 (May be)
Question 1 (a) – Explain the concepts and nature of socio-economic offences in light of the
Question 4 (a) – Distinguish between Socio-Economic offences, White Collar Crimes and
Traditional Crimes.
2019
Question 1 (a) - “Every accused shall be presumed to be innocent till proved guilty”. How far
is this cardinal principle of criminal law relevant in socio-economic offences statutes? Discuss.
Question 3 (a) – Explain the concept of white collar crimes in the light of “Differential
Association Theory”.
2
2015
Question 1- Discuss the concept and nature of ‘socio-economic offences’. Explain evolution
and reasons for development of the same in Indian context.
2016 (May be)
Question 1 (a) – Discuss the development in the concept of ‘Socio-Economic Offences in
India in view of Santhanam Committee Report of 1964 and 47th Report of the Law
Commission of India, 1972.
2017
Question 1 (a) Discuss the concept and evolution of ‘Socio-economic offences’ in India.
2018 (May be)
2019
EVOLUTION OF SOCIO-ECONOMIC OFFENCES

There are following step of evolution of socio-economic offences –
First stage [29th Report, LCI]
Law Commission of India in its 29th Report at Para 13 observed, “The problem similar to white-
collar crimes had arisen as far back as the 18th Century. The “South Sea Bubble” led to the
Bubble Act of 1720, which may be cited as example of an effort by the Legislature to deal with
fraud on a big scale perpetrated by unscrupulous persons. But the varieties of such crimes and
their diverse manifestations were seen more acutely after the First World War.”
Second Stage [Second World War]
After the First World War, several scholars started to discuss on this topic. Among them, Edwin
H. Sutherland was prominent. He wrote “White Collar Criminality” which was published by
American Sociological Review in February 1940. In India, several labour laws were enacted.
During Second World War, there were scarcity of good especially grain. Hoarding of grains
and its supplies in market was big issue. Corruption was another problem.
Independence of India
There were several laws related to white collar crimes or socio-economic offences. But these
words had not been used anywhere. After independence several laws were enacted including
Prevention of Corruption of Act, 1947, Essential Commodities Act, 1955 etc. ITPA, 1956,
NDPS, 1985, Prevention of Corruption Act, 1988, Prevention of Money-laundering Act, 2002.
Courts - Several cases were decided in which mens rea was excluded as essential ingredient
of crime. One of them was State of Maharashtra v. M.G.George [August 24, 1964]. In the case
of Noormohmed Jamalbhai Latiwala v. State of Gujarat [25 March, 2004] Gujarat High Court
observed, “Unfortunately in the last few years, the country has seen an alarming rise in white-
collar crimes which has affected the fibre 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 is either deposited or whose livelihood is dependent on the income of
interest.
Committee and Commission

3
Santhanam Committee submitted its report in 1964. Law Commission of India submitted its
29th Report on “Proposal to include certain social and economic offences in the Indian Penal
Code”1 in 1966. Law Commission of India submitted its 47th Report on “The trial and
punishment of social and economic Offences” in 1972.
Technological and scientific development
Santhanam Committee observed emergence of socio-economic offences. The advance of
technological and scientific development is contributing to the emergence of ‘mass society’,
with a large rank and file and a small controlling elite, encouraging the growth of monopolies,
the rise of a managerial class and intricate institutional mechanisms. Strict adherence to a high
standard of ethical behaviour is necessary for the even and honest functioning of the new social,
political and economic processes. The inability of all sections of Society to appreciate in full
this need results in the emergence and growth of white-collar and economic crimes, renders
enforcement of the laws, themselves not sufficiently deterrent, more difficult. This type of
crime is more dangerous not only because the financial stakes are higher but also because they
cause irreparable damage to public morals.
DU LL.B 2016
Question 1 (a) – Discuss the development in the concept of ‘Socio-Economic Offence
s in India in view of Santhanam Committee Report of 1964 and 47th Report of the Law
Commission of India, 1972.
DU LL.B 2018
1
29th Report is available at: https://lawcommissionofindia.nic.in/1-50/Report29.pdf (Visited on November 29,
2020)

4
Introduction
Summary
 Santhanam Committee Report2 (Pages 53 and 54) [1964]
 29th Report (Proposal to include certain social and economic offences in the Indian
Penal Code)3 [1966]
 47th Report [1972]
Santhanam Committee Report
[Social Offences] [Pages 53 & 54]
Summary
 Categories of Socio-economic offences
 Emergence of socio-economic offences
 Examples of white-collar crime
Categories of Socio-economic offences
Santhanam Committee recommended to amend IPC, 1860. It was observed that in IPC, it is
dominated by the notion that almost all major crimes consist of offences against person,
property or State. However, the Penal Code does not deal in any satisfactory manner with acts
which may be described as social offences having regard to the special circumstances under
which they are committed, and which have now become a dominant feature of certain powerful
sections of modern society. Such offences may broadly be classified into:
(1) Offences calculated to prevent or obstruct the economic development of the country
and endanger its economic health;
(2) Evasion and avoidance of taxes lawfully imposed;
(3) Misuse of their position by public servants in making of contracts and disposal of public
property, issue of licences and permits and similar other matters;
(4) Delivery by individuals and industrial and commercial undertakings of goods not in
accordance with agreed specifications in fulfilment of contracts entered into with public
authorities;
(5) Profiteering, black-marketing and hoarding;
(6) Adulteration of foodstuffs and drugs;
(7) Theft and misappropriation of public property and funds; and
(8) Trafficking in licences, permits, etc.
Categories of Socio-economic offences
Categories of socio-economic offences made by Santhanam Committee was again and again
quoted in Reports of LCI.
[Para 2, Page no. 2, 29th Report, LCI]
[Para 1.6, 47th Report, LCI]
2
This Report is available at: https://cvc.gov.in/sites/default/files/scr_rpt_cvc.pdf (Visited on November 29,
2020)
3
29th Report is available at: https://lawcommissionofindia.nic.in/1-50/Report29.pdf (Visited on November 29,
2020)

5
Emergence of socio-economic offences

Santhanam Committee observed emergence of socio-economic offences. The advance of
technological and scientific development is contributing to the emergence of ‘mass
society’, with a large rank and file and a small controlling elite, encouraging the growth of
monopolies, the rise of a managerial class and intricate institutional mechanisms. Strict
adherence to a high standard of ethical behaviour is necessary for the even and honest
functioning of the new social, political and economic processes. The inability of all sections
of Society to appreciate in full this need results in the emergence and growth of white-collar
and economic crimes, renders enforcement of the laws, themselves not sufficiently
deterrent, more difficult. This type of crime is more dangerous not only because the
financial stakes are higher but also because they cause irreparable damage to public morals.
Examples of white-collar crime
Santhanam Committee observed, “
 Tax-evasion and avoidance,
 share-pushing, mal-practices in the share market and administration of companies,
 monopolistic controls,
 usury,
 under-invoicing or over-invoicing,
 hoarding,
 profiteering,
 sub-standard performance of contracts of constructions and supply,
 evasion of economic laws,
 bribery and corruption,
 election offences and malpractices
are some examples of white-collar crime”.
29th Report of Law Commission of India
Proposal to include certain social and economic offences in the Indian Penal Code
Summary
 Definition of White-collar Crime and Sutherland
 Definition of White-collar Crime and Arnold
 Kinds of crimes (White-collar crime and Blue collar crime)
 History of White Collar Crime
Definition of White-collar Crime and Sutherland

Earlier it was presumed that crime were being committed by lower class. Sutherland by his
studies established that crimes are also committed by upper class which is more dangerous than
crime committed by lower class. LCI quoted definition of Edwin Sutherland .Edwin Sutherland
defined white collar crime as “White Collar Crime means a crime committed by a person of
respectability and high social status in the course of his occupation”.4 The Commission
observed that the emphasis is on the connection with occupation. The commission of crime this
category is facilitated by the office, calling, profession or vocation of the individual connected.
WCCs excludes crimes like murder, adultery and intoxication, even if committed by people of
the upper class, since these have nothing to do with their occupation.
4
Edwin H. Sutherland, White Collar Crime. (1949), pp.9-10.

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White-collar crime
Two ingredients
Crime must be related to

Crime committed by upper class
his/her/their occupation
Definition of White-collar Crime and Arnold

White-collar criminals are persons of the socio-economic class who violates the criminal law
in the course of his occupational or professional activities.
He pointed out that white-collar crime was more dangerous to society than crimes committed
by the members of the lower class, because of the damage inflicted on the public morals.
Kinds of crimes (White-collar crime and Blue collar crime)
There are two types of crime. These are –
1. White-collar crime [It is upper or middle-class crime].
2. Blue-collar crime [It is the crime of the under-privileged].
History of White Collar Crime
[Para 13]
Law Commission of India in its 29th Report at Para 13 observed, “The problem similar to white-
collar crimes had arisen as far back as the 18th Century. The “South Sea Bubble” led to the
Bubble Act of 1720, which may be cited as example of an effort by the Legislature to deal with
fraud on a big scale perpetrated by unscrupulous persons. But the varieties of such crimes and
their diverse manifestations were seen more acutely after the First World War.”
47th Report of Law Commission of India [1972]

The trial and punishment of social and economic Offences
Summary
 Definition[Paras 1.8 & 1.9]
 Examples[Paras 1.8 & 1.9]
 Social Offences
 Economic Offences
 Intersecting circles
 Salient Features of Socio-economic offences [Paras 1.4 & 1.5, Page 2]
Definition - ‘White-collar crime’ may be describe as a crime committed in the course of one’s
occupation by a member of the upper class of the society.
Example (1) - A manufacturer of drugs who deliberately supplies sub-standard drug is a white
collar criminal.
Example (2) A big corporation who has committed evasion of tax fraudulently is ‘White-collar
criminal’.

7
Example (3) – A person who illegally smuggles (for his personal use) costly television sets, is
not ‘White-collar criminal in the above sense, there being no connection between his
occupation and the crime committed by him.
Example (4) – A pensioner who submits a false returns of income is not white collar criminal.
But all of them (Examples 1 to 4) are guilty of social or economic offences.
Social offences – Social offences are offences which affect health or material welfare of the
community as a whole and not merely of the individual victim.
Economic Offences - Economic Offences are those offences which affect the country’s
economy and not merely the wealth of an individual victim.
Intersecting circle – Socio-economic offences and white-collar crimes could be intersecting
circles. Socio-economic offences and crimes of strict liability could also be represented by
intersecting circles.
Salient Features of Socio-economic offences

[Para 1.4, 47th Report]
There are following salient features of the Socio-economic offences –
(1). Motive – Motive of the criminal is avarice5 or rapaciousness6 (not lust or hate).
(2). Background is non-emotional - Background of the crime is non-emotional (unlike
murder, rape, defamation etc.). There is no emotional reaction as between the victim
and the offender.
(3). Victims at large - The victim is usually the State or section of the public (i.e. that
portion of the which consumes goods or services, buys shares or securities or
intangibles). Even where there is an individual victims, the more important element of
the offence is harm to society.
(4). Fraud - Mode of operation of the offender is fraud, not force.
(5). Wilful - Usually, the act is deliberate and wilful.
(6). Interest protected is two-fold –
(a) Social interest in the preservation of –
(I) the property or wealth or health of its individual members, and national resources,
and
(II) the general economic system as a whole, from
(i) exploitation, or
(ii) waste by individuals or groups
(b) Social interest in the augmentation of the wealth of the country by enforcing the laws
relating to taxes and duties, foreign exchange, foreign commerce, industries and the like.
DU LL.B 2016
Question 3 (a) – Differentiate between the traditional crimes and socio-economic offences.
DU LL.B 2018
Question 4 (a) – Distinguish between Socio-Economic offences, White Collar Crimes and
Traditional Crimes.
Differences between Socio-economic offences and Traditional Offences
5
Avarice means extreme greed for wealth or material gain.
6
Rapaciousness means having or showing a strong or excessive desire to acquire money or possess things.

8
There are following differences between both –

Grounds Socio-economic offences Traditional Offences
History It is new concept. Its origin is It is old concept.
found in eighteenth century.
[29th Report, LCI]
Mens Rea Generally, persons are Actus non facit reum, nisi mens sit
convicted even without mens rea is strictly followed.
rea.
State of Maharashtra v. M.H.
George
Presumption Presumption of guilt. Presumption of innocence
1. Sections 35 & 54, NDPS Act, [Malimath Committee]
1988
2. Section 24, PML Act, 2002
Burden of proof Burden of proof on accused Burden of proof on prosecutor

1. Section 68J, NDPS Act, 1988
2. Section 35 deals rebuttable
presumption. Accused may
rebut this presumption.
3. Section 24, PML Act, 2002
Victim Here generally victim is whole Here generally victim is individual
State of Gujarat v. nation or at mass level. It or group
Mohanlal Jitamalji damages to the national
Porwal & Anr. economy and national interest
Heat of passion It is committed with cool mind It may be committed either with
State of Gujarat v. cool mind or heat of passion
Mohanlal Jitamalji
Porwal & Anr.
Mode of operation Mode of operation of the Mode of operation of the offender is
offender is fraud, not force. generally force.
[47th Report]
Motive Motive of the criminal is Here, generally, motive becomes
avarice7 or rapaciousness8 (not lust or hate.
lust or hate).
[47th Report]
Differences between Socio-economic offences and White-collar Crime
There are following differences between ‘Socio-economic Offences’ and ‘White–collar Crime’
-
Grounds Socio-economic offences White-collar Crime
Definition Socio-economic offences may be Edwin Sutherland defined white
committed by any person even if he collar crime as “White Collar
does not have a high social status in Crime means a crime committed by
his occupation. a person of respectability and high
Social offences – Social offences social status in the course of his
are offences which affect health or occupation”.9
7
Avarice means extreme greed for wealth or material gain.
8
Rapaciousness means having or showing a strong or excessive desire to acquire money or possess things.
9
Edwin H. Sutherland, White Collar Crime. (1949), pp.9-10.

9
material welfare of the community

as a whole and not merely of the
individual victim.
Economic Offences - Economic
Offences are those offences which
affect the country’s economy and
not merely the wealth of an
individual victim.
Socio-economic offences are
combination of Social offences and
economic offences.
Examples quoted by LCI in its Examples quoted by LCI in its
47th Report 47th Report
Examples 1 A person who illegally smuggles A manufacturer of drugs who
(for his personal use) costly deliberately supplies sub-standard
television sets, is not ‘White-collar drug is a white collar criminal.
criminal in the above sense, there Remark – This is also socio-
being no connection between his economic offences.
occupation and the crime
committed by him.
Examples 2 A pensioner who submits a false A big corporation who has
returns of income is not white collar
committed evasion of tax
criminal. fraudulently is ‘White-collar
criminal’.
Remark – This is also socio-
economic offences.
Relation Every Socio-economic offences are But every White-collar Crime is
between both not White-collar Crime. Socio-economic offence.
OFFENCE
Socio-
econom
ic
Offence
White
-collar
Crime
Intersecting Socio-economic offences and Socio-economic offences and

circle white-collar crimes could be white-collar crimes could be
intersecting circles. intersecting circles.
Scope It is wider It is narrower.
Criminal Criminals may be from high or Criminals are from high society.
lower society. Here both rich and Here only rich commit white-collar
poor can commit socio-economic crime.
offences.

10
DU LL.B 2019
Answer – “Differential Association” theory was propounded by Sutherland. He was searching

how a person becomes criminal. According to him, when a person associate with other
criminal, he learns values, attitude, techniques and motives for criminal behavior and become
criminal.
His main focus was on how a person become criminal. He did not discuss why a person become
criminal.
Prediction - Differential association predicts that an individual will choose the criminal path
when the balance of definitions for law-breaking exceeds those for law-abiding.
This is also known as “Learning Theory of Deviance”.
The principles of Sutherland’s Theory of Differential Association key points:
1. Criminal behavior is learned from other individuals.
2. Criminal behavior is learned in interaction with other persons in a process of
communication.
3. The principle part of the learning of criminal behavior occurs within intimate personal
groups.
4. When criminal behavior is learned, the learning includes
a. techniques of committing the crime, which are sometimes very complicated,
sometimes simple;
b. the specific direction of motives, drives, rationalizations, and attitudes.
5. The specific direction of motives and drives is learned from definitions of the legal
codes as favorable or unfavorable.
6. A person becomes delinquent because of an excess of definitions favorable to violation
of law over definitions unfavorable to violation of the law.
7. Differential associations may vary in frequency, duration, priority, and intensity.
8. The process of learning criminal behavior by association with criminal and anti-
criminal patterns involves all of the mechanisms that are involved in any other learning.
9. While criminal behavior is an expression of general needs and values, it is not
explained by those needs and values, since non-criminal behavior is an expression of
the same needs and values.
Criticism of theory – There are following criticism of this theory –
1. Ignorance of role of personality, biological and psychological factors.
2. He failed to explain origin of criminality, since criminality has to exist before it can
be learnt from someone else.
3. He explained systematic crimes but failed to discuss situational crime.
Contribution of this Theory – This theory is based on Hindi Poem i.e. “संगत से गुण
होत हैं संगत से गुण जात". Role of Peer Group in commission of crime has been emphasized.
This theory emphasized to consider activities of those persons in whose concert he is living.
Parents always take care of their children with whom babies are living and playing.

11
2017
Question 1 (b) – How are the concept, viz., Mens Rea, Nature of liability, Burden of proof
and Sentencing applicable in Socio-Economic Offences statutes?
2019
Question 1 (a) - “Every accused shall be presumed to be innocent till proved guilty”. How
far is this cardinal principle of criminal law relevant in socio-economic offences statutes?
Discuss.
Answer –
Summary
 Introduction
 Actus non Facit reum, Nisi Mens Sit Rea
 Liability for fault
 Strict liability
 47th Report of Law Commission of India (Para 3.17, Para 3.20)
 The Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Addl. (February 3, 1964)
 State of Maharashtra v. M.H. George
Introduction
Common law is based on Actus non Facit reum, Nisi Mens Sit Rea. According to this actus
reus (prohibited act) is not sufficient to constitute offence unless it is caused with guilty mind.
This is also known as “Fault Liability”. “Every accused shall be presumed to be innocent till
proved guilty”. This is cardinal principle of criminal law. ). In case of Sherras v. De Rutzen
(1895) Justice Wright said “In every statute mens rea is to be implied unless contrary is
shown”. There are certain circumstances in which deviation is possible. In Brend v. Wood
(1946) Justice Goddard10 observed, “It is…............. of the utmost importance for the
protection of the liberty of the subject that a court should always bear in mind that, unless the
statute, either clearly or by necessary implication rules out mens rea as a constituent part of a
crime, a defendant should not be found guilty of an offence against the criminal law unless he
has got a guilty mind”.
Just opposite of “Fault Liability”, there is “Strict Liability”. There are certain cases in which
there is no requirement of mens rea. In Halsbury’s Laws of England, 3rd Edn., Vol. 10, in
para 508, at p. 273, the following passage appears: A statutory crime may or may not contain
an express definition of the necessary state of mind. A statute may require a specific intention,
malice, knowledge, willfulness, or recklessness. On the other hand, it may be silent as to any
requirement of mens rea, and in such a case in order to determine whether or not mens rea, is
an essential element of the offence it is necessary to look at the objects and terms of the statute.
Archbold in his book on Criminal Pleading, Evidence and Practice, says “There is a
presumption that mens rea, is an essential ingredient in a statutory offence, but this presumption
10
He is known as ‘Revival of Mens rea’.

12
is liable to be displaced either by the words of the statute creating the offence or by the subject
matter with which it deals.
47th Report of Law Commission of India (Para 3.17, Para 3.20)
Law Commission of India suggested following two important points regarding mens rea –
1. It was suggested that socio-economic offences must be treated differently from
traditional crime. In such offences, mens rea should not be required. Socio-economic
offences represent greater harm.
2. Burden of disproving mens rea should lie over accused.
(1) SEA CUSTOMS ACT, 1878
The Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Addl. (February 3, 1964)
In this case interpretation of several provisions of Sea Customs Act, 1878 was involved. In this
case requirement of mens rea was rejected.
This case is related to smuggling of gold. Chief Justice Gajendragadkar said, “The intention of
the legislature in providing for the prohibition prescribed by section 52 A of the Sea Customs
Act is, inter alia, to put an end to illegal smuggling which has the effect of disturbing very
rudely the national economy of the country. It is well-known, for example, that smuggling of
gold has become a serious problem in this country and operations of smuggling are conducted
by operators who work on an international basis. The persons who actually carry out the
physical part of smuggling gold by one means or another are generally no more than agents
and presumably, behind them stands a well- knit Organisation which, for motives of profit
making, undertakes this activity.”
(2) FOREIGN EXCHANGE AND REGULATION ACT, 1947

State of Maharashtra v. M.H. George
Majority opinion of Supreme Court convicted accused even without mens rea.
(3) IMMORAL TRAFFIC PREVENTION ACT, 1956

Chitan J. Vaswani & Anr v. State of West Bengal & Anr.11
Section 1812 - For application of this Section, mens rea is not necessary. It was observed in
Chitan J. Vaswani & Anr v. State of West Bengal & Anr.
(4) PREVENTION OF MONEY-LAUNDERING ACT, 2002
Ramaraju v. Union of India
In Ramaraju v. Union of India, issue was ‘Whether Section 8 is invalid on the grounds of vague
& exclusion of mens rea’? Hon’ble A.P. High Court replied in negative.
Presumption [Section 23] and burden of prove [Section 24]
11
This judgment is available at: https://main.sci.gov.in/judgment/judis/5823.pdf (Visited on December 6, 2020 )
12
Section 18 – ‘Closure of brothel and eviction of offenders from the premises’

13
Section 24 inheres on a person accused/charged of having committed an offence under Section

3, the burden of proving that proceeds of crime are untainted property. Section 23 of the Act
enjoins a presumption in inter-connected transactions that where money-laundering involves
two or more inter-connected transactions and one or more of such transactions is or are proved
to be involving in money-laundering, then for the purposes of adjudication or confiscation
under Chapter III, the Act enjoins a rebuttable presumption that the remaining transactions
form part of such interconnected transactions.
(5) NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985
1. Presumption of guilty mind- Presumption of innocence has been rejected. Court shall
presume that the accused has committed offence with guilty mind. Burden of proof to
rebut presumption shall lies on accused.13&14
2. Beyond reasonable doubts - Fact must be proved beyond reasonable doubts.15
13
Section 35 (1), NDPS Act, 1985
14
Section 54, NDPS Act, 1985
15

14
TOPIC 2: THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956

DU LL.B. - 2015
Question 2 - “This devastating malady can be suppressed and eradicated only if the law
enforcing authorities in that regard take very severe and speedy legal action against all the
erring persons such as pimps, brokers and brothel keepers”. In the light of this statement
examine various legal provisions against illicit trafficking of women and girls.
Answer – Vishal Jeet v. Union of India & Ors.
DU LL.B. – 2016
I could not get question paper.
DU LL.B. – 2017
Question 2 (a) – What are the main guidelines issued by the Hon’ble Supreme Court in Vishal
Jeet and Gaurav Jain Case?
Question 2 (b) – What is the scope of sections 18 (1) and 18(2) of the Immoral Traffic
(Prevention) Act, 1956 in the light of decided cases?
DU LL.B. –Year is unknown
Question 2 (a) - Explain the provisions in the Constitution of India and the Indian Penal Code
relating to the prevention and punishment in immoral human trafficking cases.
DU LL.B. – 2018
Question 2 (b) – Y is a bar in a locality in Delhi. It is situated very near to a temple. One day
police raided the premises and arrested the proprietor and manager of the bar. They were
committed under section 7(2) (a) read with section 3(1) but acquitted under sections 7 (2) (b)
of the Immoral Traffic (Prevention) Act, 1956. Decide.
Answer –
Question 6 (a) – Explain the measures taken by the Central Government for protection of
children in the light of Gaurav Jain v. Union of India and Ors. 1997 (8) SCC 114.
Answer-
DU LL.B. – 2019
Question 1 (a) – What is the scope of sections 18 (1) and 18(2) of the Immoral Traffic
(Prevention) Act, 1956 in the light of decided cases? (Repeated – 2017 & 2019)
Question 5 (a) Explain the directions issued by the Hon’ble Supreme Court in the case of
Vishal Jeet v. Union of India & Ors. (1990) 3SCC 318.
DU LL.B. – 2020
I predict Gaurav Jain Case or question based on combined reading of Vishal Jeet case and
Gaurav Jain Case.
Leading Cases on this topic

S. No. Name of cases Year
1 Krishnamurthy @ Tailor Krishnan v. Public Prosecutor, Madras 1967
2 Chitan J. Vaswani & Anr v. State of West Bengal & Anr., 1975
3 Vishal Jeet v. Union of India & Ors, 1990
4 Gaurav Jain v. Union of India & Ors, 1997

15
Vishal Jeet v. Union of India & Ors.16

“Prostitution is not only social but also a socio-economic problem”
Hon’ble Justice S. R. Pandian
Summary –
Statutory Provisions
1. Constitution of India, 1949
 Article 23
 Article 32
 Article 35 (a) (ii)
 Article 39 (e) &
 Article 39 (f).
2. Indian Penal Code, 1860
 Section 366A
 Section 366B
 Section 372
 Section 373
3. The Juvenile Justice Act, 1986
 Section 13
 Section 15
4. The Immoral Traffic (Prevention) Act, 1956
 Object of the Act
5. Declaration of the Rights of the Child, 1959

 Principle 9
Leading Cases
1. Lakshmi Kant Pandey v. Union of India (1984)
 Justice Bhagwati – Welfare of children
2. Gaurav Jain v. Union of India and Others (1990)
 Rehabilitation of the children of prostitutes
Issues –
I. Whether CBI inquiry should be ordered to investigate such offences.
 Answer - No
II. Whether directions should be issued for betterment of prostitutes, Devdasis and Jogan.
 Answer – Yes.
III. Whether directions should be issued for rehabilitation of children of prostitutes.
 Answer – No need. For this purpose separate writ is pending (Gaurav Case).
IV. Whether ‘Traffic in Human beings’ used under Article 23 of the Constitution of India
includes prohibition of traffic in women for immoral or other purposes.
 Answer – Yes.
16
This judgment is available at: https://main.sci.gov.in/judgment/judis/7525.pdf (Last visited on August 29,
2020).

16
Introduction – Hon’ble Justice Bhagwati in Lakshmi Kant Pandey v. Union of India (1984)
while emphasizing the importance of children has expressed his view thus: “It is obvious that
in a civilized society the importance of child welfare cannot be over-emphasized, because the
welfare of the entire community, its growth and development, depend on the health and well-
being of its children. Children are a ‘supremely important national asset’ and the future well-
being of the nation depends on how its children grow and develop.”
Facts – Vishal Jeet was an advocate. He filed writ petition in Supreme Court under Article 32
of the Constitution of India. He also submitted nine affidavits of victims of forced prostitute.
This case is related to
 Forced Prostitute,
 Devdasi System &
 Jogin Traditions17
In this case petitioner was seeking directions
I. for the inquiry of Forced Prostitute, Devdasi & jogin. For inquiry, he requested CBI
inquiry against erring police officers under whose jurisdiction such flash trade was
going on.
II. rehabilitation of victims of this malady and their children. He also demanded proper
medical aid, shelter, education etc.
Division Bench - This case was decided by Division Bench of Supreme Court comprising of
Hon’ble Justice S.R. Pandian & Hon’ble Justice K. Jayachandra Reddy. Hon’ble Justice S.R.
Pandian wrote this judgment.
Observation of Supreme Court

Supreme Court observed following important points –
 Prostitution is not only social but also a socio-economic problem.
 Eradicating measures should be preventive rather than punitive.
 Demand for CBI inquiry was rejected.
 Directions were issued for setting up of Advisory Committees
 In-spite of the stringent and rehabilitative provisions of law contained in Constitution
of India, 1950, the Immoral Traffic (Prevention) Act, 1956, Indian Penal Code, 1860
and the Juvenile Justice Act, 1986, it cannot be said that the desired result has been
achieved.
 The matter is one of great importance warranting a comprehensive and searching
analysis and requiring a humanistic rather than a purely legalistic approach from
different angles.
 Its final solution is in hand of public at large.
Poverty
 Several girls were in forced prostitution due to acute poverty. In some cases parents
sold in hope of better life.
17
The Jogin system is based on the traditional belief in Andhra Pradesh that evil over the family or the village can
be avoided by dedicating a girl in the family to be a Jogin. As soon as she reaches puberty, she becomes the
exclusive concubine of the feudal gentry in the village.

17
 It is highly deplorable and heart-rending to note that many poverty stricken children
and girls in the prime of youth are taken to ’flesh market’ and forcibly pushed into the
’flesh trade’ which is being carried on in utter violation of all cannons of morality,
decency and dignity of humankind.
Jurisprudence
 Prostitution is cancer for society.
 No denying the fact that prostitution always remains as a running sore in the body of
civilisation and destroys all moral values. The causes and evil effects of prostitution
maligning the society are so notorious and frightful that none can gainsay it.
CONSTITUTION OF INDIA
Fundamental Rights
(1) Article 23(1) - Traffic in human beings and begar and other similar forms of forced labour
are prohibited and any contravention of this provision shall be an offence punishable in
accordance with law.
In this case Supreme Court observed that ‘Traffic in Human beings’ expression is very wide
including prohibition of traffic in women for immoral or other purposes.
(2) Article 35 (a) (ii) – Only Parliament is authorized to make punishment for violation of
fundamental rights. The power of legislation, under this article, is given to the Parliament
exclusively, for, otherwise the laws relating to fundamental rights would not have been uniform
throughout the country. The power is specifically denied to the state legislatures.
DPSP
(1) Article 39 (e)18 - One of the objectives under clause (e) of Article 39 is that the State should,
in particular, direct its policy towards securing that the tender age of children are not abused.
(2) Article 39 (f)19 - One of the objectives under clause (f) is that the State should, in particular,
direct its policy towards securing that childhood and youth are protected against exploitation
and against moral and material abandonment.
Remarks - These objectives reflect the great anxiety of the Constitution makers to protect and
safeguard the interests and welfare of the children of our country. The Government of India
has also, in pursuance of these constitutional provisions of clauses (e) and (f) of Article 39,
evolved a national policy for the welfare of the children.
18
The State shall, in particular, direct its policy towards securing that the health and strength of workers, men
and women, and the tender age of children are not abused and that citizens are not forced by economic necessity
to enter avocations unsuited to their age or strength;
19
The State shall, in particular, direct its policy towards securing that children are given opportunities and facilities
to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are
protected against exploitation and against moral and material abandonment.

18
SUPPRESSION OF IMMORAL TRAFFIC IN WOMEN & GIRLS ACT, 1956

SITA, 1956
Reason of
enactment
International To bring uniformity in

Article 23 r/w
Convention in New laws enacted by State
Article 35
York, 1950 Legistations.
The Suppression of Immoral Traffic in Women & Girls Act, 1956 (SITA) was enacted to make
uniform law all over country to prevent human trafficking. Preamble of this Act states that this
Act was enacted in pursuance of the International Convention signed at New York on the 9th
day of May, 1950, for the Prevention of Immoral Traffic. SITA was amended in 1976 & 1986.
In implementation of the principles underlying Article 23(1) the Suppression of Immoral
Traffic in Women & Girls Act, 1956 (SITA ) has been enacted under Article 35 with the object
of inhibiting or abolishing the immoral traffic in women and girls. This Act aims at suppressing
the evils of prostitution in women and girls and achieving a public purpose viz. to rescue the
fallen women and girls and to stamp out the evils of prostitution and also to provide an
opportunity to these fallen victims so that they could become decent members of the society.
INDIAN PENAL CODE, 1860
Various provisions in the Indian Penal Code such as Sections 366-A (dealing with procuration
of minor girl), 366-B (dealing with offence of importation of girl from foreign country), 372
(dealing with selling of minor for purposes of prostitution etc.) and 373 (dealing with the
offence of buying minor for purposes of prostitution etc.) are for protections women.
The Juvenile Justice Act, 198620
The Juvenile Justice Act, 1986 which provides for the care, protection, treatment, development
and rehabilitation of neglected or delinquent juveniles contains a specific provision namely
Section 13 which empowers a police officer or any other person or organization authorized by
the State Government in this behalf to take charge of any neglected juveniles and bring them
before the Board constituted under this Act which Board under section 15 has to hold an
enquiry and make such orders in relation to the neglected juveniles as it may deem fit.
Conclusion Regarding above laws - In-spite of the stringent and rehabilitative provisions of
law contained in Constitution of India, 1950, the Immoral Traffic (Prevention) Act, 1956,
Indian Penal Code, 1860 and the Juvenile Justice Act, 1986, it cannot be said that the desired
result has been achieved.
This malady is not only a social but also a socio-economic problem and, therefore, the measures
to be taken in that regard should be more preventive rather than punitive.
20
The Juvenile Justice (Care and Protection of Children) Act, 2015 replaced The Juvenile Justice (Care and
Protection of Children) Act, 2000 (56 of 2000). The Juvenile Justice (Care and Protection of Children) Act, 2000
replaced The Juvenile Justice Act, 1986.

19
Rejection of demand of CBI - Supreme Court observed, “It is neither practicable and possible
nor desirable to make a roving enquiry through the CBI throughout the length and breadth of
this country and no useful purpose will be served by issuing any such direction, as requested
by the petitioner”.
Branding or punishment of victim is not solution -
This malignity cannot be eradicated either by banishing, branding, scourging or inflicting
severe punishment on these helpless and hapless victims most of whom are unwilling
participants and involuntary victims of compelled circumstances and who, finding no way to
escape, are weeping or wailing throughout.
Solution of Malady – There are following way of solution of this malady –
1. Role of Law Enforcing Authorities- This devastating malady can be suppressed and
eradicated only if the law enforcing authorities in that regard take very severe and
speedy legal action against all the erring persons such as pimps, brokers and brothel
keepers.
2. Role of Court - The Courts in such cases have to always take a serious view of this
matter and inflict consign punishment on proof of such offences.
3. Role of Government - Apart from legal action, both the Central and the State
Government who have got an obligation to safeguard the interest and welfare of the
children and girls of this country have to evaluate various measures and implement
them in the right directions.
4. Role of public – Public at large must also be conscious and play vital role to eradicate
this malady.
Solution
Enforcing
Government Court Public
Authority
Directions of Supreme Court –
Supreme Court issued following directions –
1. Directions for implementation of existing law without discrimination - All the State
Governments and the Governments of Union Territories should direct their concerned
law enforcing authorities to take appropriate and speedy action under the existing laws
in eradicating child prostitution without giving room for any complaint of remissness
or culpable indifference.
2. Constitution of separate ‘Advisory Committee’ by State and UT Governments-
The State Governments and the Governments of Union Territories should set up a
separate Advisory Committee within their respective zones consisting of the secretary
of the Social Welfare Department or Board, the Secretary of the Law Department,
sociologists, criminologists, members of the women’s organisations, members of
Indian Council of Child Welfare and Indian Council of Social Welfare as well the
members of various voluntary social organisations and associations etc.,
3. Functions of ‘Advisory Committee’ constituted by State and UT Governments- -
the main objects of the Advisory Committee being to make suggestions of:

20
(a) the measures to be taken in eradicating the child prostitution, and

(b) the social welfare programmes to be implemented for the care, protection, treatment,
development and rehabilitation of the young fallen victims namely the children and
girls rescued either from the brothel houses or from the vices of prostitution.
4. Constitution of separate ‘Advisory Committee’ by Central Government – Similar
‘Advisory Committee’ will also be constituted by Central Government at national level.
5. Functions of ‘Advisory Committee’ constituted by Central Government - the main
object of which is to evolve welfare programmes to be implemented on the national
level for the care, protection, rehabilitation etc. etc. of the young fallen victims namely
the children and girls and to make suggestions of amendments to the existing laws or
for enactment of any new law, if so warranted for the prevention of sexual exploitation
of children.
Advisory
Committee
Constituted
by
Central State UT
Government Government Government
6. Adequate rehabilitative homes with well-trained doctors etc. - All the State
Governments and the Governments of Union Territories should take steps in providing
adequate rehabilitative homes manned by well-qualified trained social workers,
psychiatarists and doctors.
7. Directions for implementation of suggestion of ‘Advisory Committee’ - The Central
Government and the Governments of States and Union Territories should devise a
machinery of its own for ensuring the proper implementation of the suggestions that
would be made by the respective committees.
8. Devadasi system and Jogin tradition - The Advisory Committee can also go deep
into devadasi system and Jogin tradition and give their valuable advice and suggestions
as to what best the Government could do in that regard.
9. Remedy for nine victims - The copies of the affidavits and the list containing the
names of 9 girls are directed to be forwarded to the Commissioner of Police, Delhi for
necessary action.
No directions for rehabilitation of children of prostitutes
Supreme Court did not issue directions for rehabilitation of children of prostitutes. Reason was
that for this issue separate writ petition was pending. Name of that writ petition was Gaurav
Jain v. Union of India.
Remarks
In this case Hon’ble Supreme Court did not discuss preamble, Articles 14, 15 (3) & 21 of the
Constitution of India. In this case sections 375 & 376 of IPC were also not discussed. Bare
provisions of SITA was also not discussed. Only object of this Act was discussed.

21
LEGAL STATUS OF PROSTITUTION IN INDIA21
PROSTITUTION IN
INDIA
Minor Women/ Girl Major Woman
Illegal/ Offence
Reason - Her Without consent
Illegal/ Offence With consent
consent is
immaterial
With her consent, With her consent

she is doing such and she is
business with independent
other person
Illegal/ Offence Legal/ No offence
21
It is not final. If somebody is doing it for their livelihood then it is not an offence. It becomes illegal when
somebody coerces someone into this business. For example, brothel owners, premise owners, pimps, etc. are
offenders,” Dr. Pawaskar said.

22
Gaurav Jain v. Union of India and Ors.22

Single Bench – Justice K. Ramaswamy
Date of Judgment- July 09, 1997.
Fact – Mr. Gaurav Jain was advocate of Supreme Court. He had a read a report appearing in
the ‘India Today.’ a national magazine of July 11, 1988. Name of the Article was “A Red light
trap: Society gives no chance to prostitutes’ offspring”. He filed writ petition under Article 32
of the Constitution of India seeking mandamus, directions, orders as the case may be for
betterment of life of children of prostitutes
Issues-
1. Is separate educational institutions for the children of the fallen women feasible?
 Answer of Supreme Court -NO. Segregating children of prostitutes by
locating separate schools and providing separate hostels would not be in the
interest of the children and the society at large. They should be segregated from
their mothers and be allowed to mingle with others and become a part of the
society.
2. What are the rights of the children of fallen women?
Judgment
Introduction – In earlier time women were treated frailty. But that was wrong notion. Several
women lead world. For example Indira Gandhi, Margaret Thatcher, Srimovo Bhandarnaike
and Golda Meir. Amidst them, still, a class of women is trapped as victims of circumstances,
unfounded social sanctions, handicaps and coercive forms in the flesh trade, optimised as
‘prostitutes’, (for short, ‘fallen women’).
Constitution of Committee -
Supreme Court constituted a Committee comprising S/Shri
 V.C. Mahajan,
 R.K. Jain,
 M.N. Shroff, and
 other individuals.
The report was submitted by the Committee.
In this case Supreme Court observed following important points -
History of Prostitution - Prostitution in society has not been an unknown phenomenon; it is
of ancient origin and has its manifestation in various forms with varied degrees unfounded on
so-called social sanctions etc. The prostitute has always been an object and was never seen as
complete human being with dignity of person; as if she has had no needs and aspirations of her
own, individually or collectively. Their problems are compounded by coercion laid around
them and torturous treatment meted out to them.
Reasons of prostitutions
 Poverty - The victims of the trap are the poor, illiterate and ignorant sections of
the society and are the target group in the flesh trade; rich communities exploit
them and harvest at their misery and ignominy in an organised gangsterism, in
particular, with police nexus.
22
1997 (8) SCC 114.

23
 Illiteracy
 Coercive trapping
 Scare of social stigma. Prostitution is primarily due to ignorance illiteracy,
coercive trapping or scare of social stigma.
 Luxurious style of life- Recent trend is that ladies from higher levels of income
are initiated into the prostitution to sustain sufficient day-to-day luxurious style
of life so as to ensure continuous economic support for their well-being.
In India, they enter into the prostitution between the ages of 16 to 19 years and lose market by
the time they became 35 years of age. Thereafter such persons either manage brothels or
develop contact with high leads.
Problems of Children of Prostitutes – The children face the problems mainly due to (i) lack
of father figure to provide security, care and guidance; (ii) increased responsibilities of mother;
(iii) economic hardships; (iv) lack of facilities to meet basic needs; (v) unhealthy social
environment; (vi) mal-nutrition; (vii) coercive attempts by managers of brothels; (viii)
tauntings, due to dislike, by surrounders; (ix) lack of proper counselling and guidance;
motivation and opportunity gaps, and (x) they are deprived of their right to live normal life for
no fault of their own.
65.5% of the fallen women have children.
Human rights for all - They need to be treated with humanity and compassion so as to
integrate them into the social mainstream. If given equal opportunity, they would be able to
play their own part for peaceful rehabilitation, live a life with happiness purposefully, with
meaningful right to life, culturally, socially and economically with equality of status and
dignity of person. These constitutional and human rights to the victims of fallen track of flesh
trade, need care and consideration of the society.
Preamble of Constitution - Prostitute is equally a human being. The Preamble, an integral
part of the Constitution, pledges to secure ‘socio-economic justice’ to all its citizens with stated
liberties, ‘equality of status and of opportunity’, assuring ‘fraternity’ and ‘dignity’ of the
individual in a united and integrated Bharat. The fallen women too are part of citizenry.
Part 3& Part 4 of Indian Constitution & International Conventions
The Convention on the Right of the Child, the fundamental Rights in Part III of the
Constitution, Universal Declaration of Human Rights, the Directive Principles of the State
Policy are equally made available and made meaningful instruments and means to ameliorate
their conditions - social, educational, economical and cultural, and to bring them into the social
stream by giving the same opportunities as had by other children.
Fundamental Rights -
Hon’ble Supreme Court said that all fundamental are also available to prostitutes and their
children. For examples –
1. Article 14
2. Article 15 (3)
3. Article 16 (1)
4. Article 21
5. Article 23
6. Article 24

24
DPSPs -
1. Article 38
2. Article 39 (f)
3. Article 45
4. Article 46
Fundamental Duties –
Article
Universal Declaration on Human Rights (UDHR), 1948 –
1. Article 1 – Article 1 of the Universal Declaration of Human Rights provides that all
human beings are born free and equal in dignity and rights. They are endowed with
reason and conscience and should act towards one another in a spirit of brotherhood.
2. Article 2 - Article 2 provides that everyone, which includes fallen women and their
children, is entitled to all the rights and freedoms set forth in the Declaration without
any distinction of any kind such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
3. Article 3 - Article 3 provides that everyone has the right to life, liberty and security of
person.
4. Article 4 - Article 4 enjoins that no one shall be held in slavery or servitude; slavery
and the slave trade shall be prohibited in all their forms. The fallen victims in the flesh
trade is no less than a slave trade.
5. Article 5 - Article 5 provides that no one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. The fallen/trapped victims of flesh
trade are subjected to cruel, inhuman and degrading treatment which are obnoxious,
abominable and an affront to Article 5 of the Universal Declaration and Article 21 of
the Indian Constitution.
6. Article 6 - Equally, Article 6 declares that everyone has the right to recognition
everywhere as a person before the law. The victims of flesh trade are equally entitled
before the law to the recognition as equal citizens with equal status and dignity in the
society.
7. Article 7– Article 7 postulates that all are equal before the law and are entitled, without
discrimination, to equal protection of the law. So, denial of equality of the rights and
opportunities and of dimity and of the right to equal protection against any
discrimination of fallen women is violation of the Universal Declaration under Article
7 and Article 14 of the Indian Constitution.
8. Article 8- Article 8 of the Universal Declaration provides that everyone has the right
to an effective remedy by the competent national tribunals for acts violating the
fundamental rights granted by the Constitution or the law. The Supreme Court of India,
which is the sentinel in the qui vive, is enjoined to protect equally the rights of the poor,
the deprived, the degraded women and children trapped in the flesh trade, kept in
inhumane and degrading conditions, and to grant them the constitutional right to
freedoms, protection, rehabilitation and treatment by the social engineering.
Declaration of the Rights of the Child, 1959 –

The Convention on the Elimination of All Forms of Discrimination Against Women, 1979

25
Question - What action is to be taken to rescue, rehabilitate and bring the children of fallen
women into the mainstream of the society?
Answer - As stated earlier, three Cs (CCC) are necessary for successful implementation, rescue
and rehabilitate the children of the fallen woman living in the red light area. Counselling,
Cajoling by persuasion and Coercion, as the last resort, are the three Cs for successful
implementation of them.
Kind of action (CCC)
To rehabilitate
Cajoling by
Counselling Coercion
persuasion
Importance of Children - Children of the world are innocent, vulnerable and dependent. They
are all curious, active and full of hope. Their life should be full of joy and peace, playing,
learning and growing. Their future should be shaped in harmony and co-operation. Their
childhood should mature, as they broaden their perspectives and gain new experience.
Abandoning the children, excluding good foundation of life for them, is a crime against
humanity. The children cannot wait till tomorrow; they grow every day; along with them grows
their sense of awareness about the surroundings. Tomorrows is no answer; the goal of their
present care, protection and rehabilitation is the need of the hour.
Guidelines and Directions –
Guidlines &
Directions
For protection of Article 142 - Power to do

prostitutes & their complete justice (Delay defeats
offsrings justice)
NGOs Child Development Advisory and

(They can give & Care Centres Monitoring Government
better result) (CDCC) Committee
Central Level State Level Local Level

26
ROLE OF NGOs & NEED OF CO-ORDINATION WITH GOVERNMENT AGENCIES

Supreme Court applauded works of NGOs in the field of rehabilitation of prostitutes and their
offspring. What needs to be done is proper, efficient and effective coordination and
management in particular entrustment to the NGOs which would yield better results than the
management solely by the Governmental agencies. The motivation by the NGOs makes a
deeper dent into the mind of the prostitute mothers or child prostitutes to retrieve them from
the flesh trade and rehabilitate the children as useful citizens in the mainstream of the society.
CHILD DEVELOPMENT & CARE CENTRES (CDCC) –
Child Development & Care Centres (CDCC) should be established Development and Care
Centres are envisaged to provide Localised services through which the larger interests of these
children can be attended to.
(1) Situation of CDCC - Such Centres are to be situated in
I. the vicinity of red light areas
II. the vicinity of other areas identified as having a concentration of prostitutes
III. those areas where there is a concentration of communities among whom prostitution
is the traditional occupation of the women and girls.
(2) Funding & running authority - These Centres will be run by voluntary organisation with
government fund and have Advisory and Monitering Committees at Central, State and Local
levels.
OBJECTIVES
(MCD)
There are following objectives of CDCC -
I. try to reach out to mothers (through their children) and counsel them on different issues
related to their personal lives, their occupational lives and their children ;
II. provide welfare and developmental services for children of prostitutes and other
children associating with prostitutes and prostitution by making them socially
productive beings ;
III. try to wean them away from their surroundings by referring them to suitable residential
institutions as and when necessary; and
IV. operate as an information dissemination and conscientious point, particularly for the
higher age group (12 - 18 years).
PROVIDING OF SERVICES/FACILITIES

27
SERVICES/
FACILITIES
Poor Mother Rich Mother
Accommodati Economic
Health Education Entertainment
on support
Library/Coach
Before after comming Support for
ing/ Skilled
sending school from school homework
knowledge
Keeping in view the total care and development of the child, the following services/facilities
would be provided –
Accommodation -
 Creche (day and night)
Health –
 Nutrional inputs
 health care
Education
 Pre-school education. The objective of pre-school education, besides the physical
emotional and social development of the children, is to prepare them mentally to attend
formal schools in future. This, it is hoped will increase the enrolment in schools.
 After school educational help the children help - help the children help complete
their homework and prepare lessons for schools. Teachers would also help them with
any difficulties faced in school. By this measure, the rate of school dropout can be
checked.
 Special coaching should be arranged for these children.
 Non-formal education/ functional literacy
 Counselling (personal and career)
 library
 skill development
Economic Support
 Financial support to mother – 100 rs. per month – (‘Save for the child’ )Mothers are
anticipated scheme to be spending Rs.100/- (at least) per child per month when the child
stays with her. When the child is placed in the custody of a residential institution, she
no longer has to spend on the child. She should, therefore, start an account in the name
of the child in any nationalised bank and deposit Rs.100/- every month. If at the end of

28
one year it is found that she has been regular in depositing the amount, the CDCC will
start contributing an equal share. By the time the child is out of the institution he/she
will have some immediate financial support.
Thirft
Scheme
The Government of India should extend the Thrift Scheme of

Women for these fallen women as well.
Entertainment -
 toy-bank
 recreation
Rich Mother -
 De-institutionalised help - Some of the mothers may be agreeable to part with their
children or have different priorities for the children. Money may not be their problem.
In such cases the CDCC may enlist their children as recipients of de- institutionalised
care services. It would ensure that the minimum needs of the child are met by the mother
and his/her development is in no way impeded. It would be binding on the mother to
provide the child with the basic minimum facilities for the child's overall growth and
development.
 Funding - All necessary funds should be provided by the appropriate Government, i.e.,
either the Central Government or the State Government, as the case may be.
Funding
Central State
Government Government
 CDCC is Nodal Agency - The CDCC would function as a nodal agency in the field
and would co-ordinate with government departments to bring as many programmes to
its group of beneficiaries as possible.
 Responsibilities of Centres - The Centre must follow up cases of women who are
placed in Protective Homes. Their children must be immediately enlisted in the list of
beneficiaries at the Centre.
ADVISORY AND MONITORING COMMITTEES
To ensure effective implementation of the scheme Advisory and Monitoring Committees will
be set up at various levels. There would be a Central Committee with State and Local
Committees under it. While there will be a State Committee in every state, there may be as
many Local Committees as the number of CDCCs operative in the respective state. A single
Committee may be adequate in case there are more than one CDCC in the same city/town.

29
Advisory & Monitoring Committee
Central Committee State Committee Local Committee

(7 Members) (Court is silent) (7 Members)
Central Committee - Members of the Committees Central Committee (Seven Members)

1. Chairperson, Central Social Welfare Board
2. Representative of the Department of Women and Child Development.
3. Representative of the Department of Social Welfare
4. Retired Police Officer.
5. Three Social Workers.
State Committee – Court is silent.
Local Committee - (Seven Members)
1. Programme Co-ordinator, CDCC.
2. Representative of mothers
3. Representative of community
4. Representative of local club, if any
5. Secretary or representative of the voluntary organisation implementing the scheme
6. Two Social Worker.
Meeting of Committee - Meeting of the committee can be organised by the respective
organisations. There must be quarterly (three months) meeting of the Central and State
Committees. The Local Committees must, however, met once in every month. The Local
committee is to send its minutes of meeting held and reports of activities to the State and
Central committees. Besides regular meetings, the Committee may call emergent meetings to
discuss any urgent matter.
Functions of Committee -
The Central Committee will function as the central Co- ordinating body, with regular feedback
from the State and Local Committees. These Committees will co-ordinate the functioning of
any ICDS Centres being run in lieu of CDCC (in case a voluntary organisation is not available
to run and manage a CDCC) and execute the same functions as it does in the case of CDCC.”
GOVERNMENTS
The rescue and rehabilitation of the child prostitutes and children should be kept under the
nodal Department, namely, Department of Women and Child.
Functions of Governments- It would devise suitable schemes for proper and effective
implementation. The institutional care, thus, would function as an effective rehabilitation of
fallen women even if they have crossed the age prescribed under the JJ Act. They should not
be left to themselves, but should be rehabilitated through self-employment schemes or such
measures as are indicated hereinbefore.
Central Government, State Governments and Union Territory Administrators, should take
adequate steps to rescue the prostitutes, child prostitutes and the neglected juveniles as
indicated hereinabove.
Committee constituted by Government of India

30
Committee
By Ministerof Welfare
(Central Govt.)
Secretary Three or four

Secretaries (State
(Central Govt.) Govt.)
The Minister of Welfare, Government of India will constitute a Committee consisting of the
Secretary in charge of Department of Women the Child Development as the chairperson and
three or four Secretaries from the concerned State Governments, to be nominated by the
Minister of Welfare.
Time limit to constitute Committee (One Month)- The Committee should be constituted
within one month from the date of the receipt of this judgment.
Submission of report within three months - The Committee should finalise the report within
three months thereafter.
Communication to States - As soon as the report is submitted, the same may be communicated
to all the State Governments and the concerned Ministries for their examination.
Meeting of Government within two months - Within two month from date of the
communication, the Minister of Welfare, Government of India, in coordination with the Prime
Minister Office should convene a meeting
 presided over by the Prime Minister,
 with Minister of Welfare,
 Home Minister,
 Human Resource Minister,
 the concerned Ministers of the State Governments and their Secretaries as well to
discuss the problem and take decision.
Enforcement and Review of progress - The nodal Department would enforce and regularly
be supervised by the Ministry of Welfare, Government of India. A permanent Committee of
Secretaries should be constituted to review the progress of the implementation on annual basis,
and to take such other steps as may be expedient in the effective implementation of the
schemes.
Submission of Periodical progress in Supreme Court - Periodical progress as to funding and
enforcement of the scheme should be submitted to the Registry of this Court. If further
directions would be needed, liberty is given to the parties to approach this Court.
CONCLUSION
In that view of the matter, it is believed and hoped that the above law and directions would
relieve the human problem by rehabilitation of the unfortunate fallen women caught in the trap
of prostitution; their children would be brought into the mainstream of the social order ; these
directions would enable them to avail the equality of opportunity and of status, with dignity of
person which are the arch of the Constitution.

31
Krishnamurthy @ Tailor Krishnan v. Public Prosecutor, Madras23
Krishnamurthy
Case
Two Points
Meaning of Meaning of Second/

Brothel subsequent conviction
Full Bench –
 Hon’ble Justice Raghubar Dayal
 Hon’ble Justice V. Ramaswami
 Hon’ble Justice Vishishtha Bhargava
Author of Judgment - Hon’ble Justice Raghubar Dayal
Date of Decision – September 26, 1966.
Relevant Statutes –
1. Suppression of Immoral Traffic in Women and Girls Act, 1956
 Section 2 (a) – Definition of brothel
 Section 3 (1) - Punishment for keeping a brothel or allowing premises to be
used as a brothel.
 Section 4 (1) - Punishment for living on the earnings of prostitution.
 Section 25 (1) – Repealing of States’ Laws
 Section 25 (2) – Saving of States’ Laws
2. Madras Suppression of Immoral Traffic Act, 1930 (This Act was repealed by SITA,
1956).
 Sections 5 (1) & 8 (1)
Facts - Krishnamurthy Krishnan (Appellant) was prosecuted for running brothel. He had
already been convicted under Madras Suppression of Immoral Traffic Act, 1930.
Assistant Commissioner of Police (ACP) (Vigilance) having information that the house
occupied by Krishnamurthy Krishnan was being used as a brothel with three girls, Saroja,
Ambika and Lakshmi. He deputed Shanmugham as a decoy on August 22, 1962. Shanmugham
was given three marked 10-rupee currency notes by ACP.
23
1967 AIR 567; 1967 SCR (1) 586

32
Investigating
Agency
Assistant Commissioner
of Police (PW -4)
Shanmugham (PW - 2)
Shanmugham went to Krishnamurthy Krishnan’s place and was shown the three girls. He
selected Ambika and paid Rs. 30/- in those marked currency notes to Krishnamurthy Krishnan.
He and Ambika then went inside a room.
Krishnamurthy
Krishnan
Shanmugham Shanmugham
visited brothel chose Ambika
Saroja Ambika Lakshmi
Thereafter, the police party raided the house and found the decoy Shanmugham and Ambika
in a dishevelled condition in that room. ACP recovered the marked currency notes from the
possession of Krishnamurthy Krishnan.
Charge - Krishnamurthy Krishnan was charged for committing offence under section 3 (1) of
SITA, 1956.
Presidency Magistrate (Court) –The Court convicted him under section 4(1) of SITA.
High Court – High Court altered his conviction from section 4 (1) to Section 3 (1), SITA,
1956.
Supreme Court - Krishnamurthy Krishnan filed appeal to Supreme Court against judgment of
High Court. Supreme Court dismissed appeal.
Charge -
Section 3(1)
Conviction
Presidency Court - High Court - Supreme Court

Section 4(1) Section 3 (1) Appeal Dismissed - Section 3(1)

33
Issues – There were two issues-

1. First Issue (Meaning of ‘Brothel’24) - Whether solitary instance of use of house is
sufficient to declare house as a brothel.
Answer – No. But it is defend upon facts. It may be true that a place used once for the
purpose of prostitution may not be a brothel, but it is a question of fact as to what
conclusion should be drawn about the use of a place about which information had been
received that it was being used as a brothel, to which a person goes and freely asks for
girls, where the person is shown girls to select from and where he does engage a girl
for the purpose of prostitution.
The conclusion to be derived from these circumstances about the place and the person
‘keeping it’ can be nothing else than that the place was being used as a brothel and the
person - in charge was so keeping it.
It is not necessary that there should be evidence of repeated visits by persons to the
place for the purpose of prostitution. A single instance coupled with the surrounding
circumstances is sufficient to establish both that the place was being used as a brothel
and that the person alleged was so keeping it.
Meaning of Brothel -Sec. 2(a)
Inclusive
Definition
Place Purpose
Any portion of which is used for for the gain of

House, Room or
House, Room or purposes of another person or
place
place prostitution for the mutual
gain of two or
more prostitutes.
2. Second Issue – (Previous Conviction25) – Whether conviction under the Madras

Suppression of Immoral Traffic Act, 1930 should be treated second or subsequent
convictions for the purpose of section 3 (1), SITA, 1956.
24
Meaning of Brothel – ‘Brothel’ is defined in cl. (a) of s. 2. It includes any house, room or place or any portion
of any house, room or place which is used for purposes of prostitution for the gain of another person or for the
mutual gain of two or more prostitutes.
25
Section 3. Punishment for keeping a brothel or allowing premises to be used as a brothel.—(1) Any person who
keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first
conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also
with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with

34
 Answer – Yes. Section 25 (1), SITA, 1956 repealed all laws related to prostitutions.
Purpose was to unify all laws. But section 25 saved some points of earlier laws of States.
So his conviction under the Madras Suppression of Immoral Traffic Act, 1930 shall be
treated second / subsequent convictions.
Section 3(1)
Punishment
First Time Second or subsiquent

Conviction conviction
(1) RI (Min. 1 yr - Max. 3 Yrs.) (1) RI (Min. 2Yrs - Max. 5 Yrs)

(2) Fine - up to 2000 rs. (2) Fine - up to 2000 rs.
Convictions
Two convictions
His first conviction was Argument of appeallant

under ss. 5(1) and 8(1) - His conviction under
Second Conviction was
of the Madras MSATA, 1930 should
under SITA.
Suppression of Immoral not be treated second
Traffic Act, 1930 conviction under Sec. 3,
SITA, 1956
Supreme Court rejected

this contention on the
ground of section 25 (1)
& (2)
Conclusion – Appeal was dismissed and his conviction was upheld.
rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which
may extend to two thousand rupees.

35

.
DU LL.B. – 2017
Question 2 (b) – What is the scope of sections 18 (1) and 18(2) of the Immoral Traffic
(Prevention) Act, 1956 in the light of decided cases?
Answer - Chitan J. Vaswani Case.
DU LL.B. – 2018
Question 2 (b) – Y is a bar in a locality in Delhi. It is situated very near to a temple. One day
police raided the premises and arrested the proprietor and manager of the bar. They were
committed under section 7(2) (a) read with section 3(1) but acquitted under sections 7 (2) (b)
of the Immoral Traffic (Prevention) Act, 1956. Decide.
Answer – Chitan J. Vaswani Case.
DU LL.B. – 2019
Question 1 (a) – What is the scope of sections 18 (1) and 18(2) of the Immoral Traffic
(Prevention) Act, 1956 in the light of decided cases? (Repeated – 2017 & 2019)
Answer - Chitan J. Vaswani Case.
For Knowledge
Difference between Section 7 and Section 18
Section 7 Section 18
Punitive Preventive
Person. In this case mens rea or Premises. In this case there is no need to
knowledge must be proved prove mens rea or knowledge.
Both deals different offences

Division Bench –
 Hon’ble Justice V.R. Krishnaiyer,
 Hon’ble Justice A.C. Gupta
Author of Judgment - Hon’ble Justice V.R. Krishnaiyer.
Date of Judgment – 10/10/1975
Statutory Provisions –
SITA, 1956
 Section 3
 Section 7 (1) & (2) (a) & (b)
 Section 18 (1) & (2)
Facts of Case - The appellants were keepers of a public place namely, a Isias bar. Such types
bars are patronised by even prestigious dignitaries and opulent businessman. Manager and
Proprietor of Bar were convicted under section 7(2) (a) & Section 3(1) but acquitted under
section 7(2)(b).
An order was made under s. 18(1) read with sec. 18(2) directing
“the occupiers of portion of premises Nos. 15 and 15/A, Free School Street commonly
26
1975 AIR 2473; 1976 SCR (2) 300
27
https://main.sci.gov.in/judgment/judis/5823.pdf

36
known as ‘Isias Bar’ to be evicted therefrom within a period of seven days from
the date of this order and restore possession thereof to the owner landlord or his agent.
Supreme Court had granted special leave limited to the attack on this order for eviction under
s. 18(2) read with s. 18(1). The area of discussion in these arguments is thus confined to the
power to throw out the occupier of the guilty premises on conviction for offences under ss. 3(1)
and 7(2)(a) on top of the sentence imposed.
 Section 3 - They were convicted under s. 3(1) of the Suppression of Immoral Traffic in
Women and Girls Act. 1956, for keeping or managing a brothel in the bar, and
 Section 7- under s. 7(2) (a) for knowingly permitting prostitutes for the purpose of their
trade to resort to or remain in the bar.
 Section 18 - There was also a direction under s. 18(1) read with s. 18(2) of the Act
evicting, the appellants from the bar.
Arguments of Appellants - It was contended that the order of eviction was bad, because the
bar was not within 200 metres of any public institution of the type referred to in s. 18(1).
Main controversy is regarding application of Section 18 (2).
Section 18 (1) & Section 18 (2)
Section 18 (1) Section 18 (2)
1 It is applicable only in case of clause (1) of It is applicable in case of all clauses
Section 7. of Sections 3 & 7.
2 Information from Police or otherwise Here conviction either under section
regarding use of house as brothel is 3 or section 7 is necessary.
sufficient.
3 House (brothel) must be within a distance There is no necessary existence of
of two hundred metres of any public place brothel within a distance of two
referred to in sub-section (1) of section 7. hundred metres of any public place.
4 Show cause notice is mandatory. Accused Show cause notice is not necessary.
had not been convicted by any court. So Eviction order can be passed. Reason
prior notice must be given for compliance of this is that accused had already
of audi alteram partem. been convicted.
5 This is narrower. It is wider.
6 In Chitan Case, Bar was not situated within He had been convicted. So section 18
a distance of two hundred metres of any (2) was applicable.
public place referred to in sub-section (1) of
section 7. So section 18 (1) was not
applicable.
Section 7 - Prostitution in or in the vicinity of public places.

Section 7 (1) - Section 7 (1) deals punishment for carrying on prostitution within 200 metres
of any public place. For example public religious worship, educational institution, hostel,
hospital, nursing home.
Section 7 (2) - Any person who –
(a) being the keeper of any public place knowingly permits prostitutes for purposes of their
trade to resort to or remain in such place; or
(b) being the tenant, lessee, occupier or person in charge of any premises referred to in sub-
section (1)28 knowingly permits the same or any part thereof to be used for prostitution; …
28
Public place.

37
Section 7 (1) & Section 7 (2) (b) Section 7 (2) (a)

Similarity Public Place Public Place
Differences Within 200 metres Here there is no such restrictions
Differences Within 200 metres Here there is no such restrictions. Beyond

200 metres.
 Section 7 (1),  Section 7 (2) (a) &
 Section 7 (2) (b) &  Section 18 (2)
 Section 18 (1)

Differences It is general. It does not deal It deals specific persons.
specific persons.
Distance of brothel
Distance of
Brothel
Within 200 Beyond 200

Metres Metres

Section 7 (1), Section 18 (1) Section 18 (2)
(b) & (a) &
Ratio of Judgment –
 Section 3 & Section 18 (2) - The consequence of a conviction under s. 3 is the
invalidation of any lease of the premises where the brothel is run. The logical
consequence must be that the occupier must be thrown out of such premises. This is
achieved by the exercise of the power under s. 18(2).
 Section 7 (1) & Section 7 (2) (b) - Section 7(1) punishes prostitution in premises within
a distance of 200 yds. of specified places. Section 7(2) (b) punishes the person who
permits the use of premises in his occupation for prostitution, and it is an ingredient of
the offence that the premises must be within 200 yards distance of the specified places.

38
 Section 7(2) (a) - Section 7(2) (a) punishes the keeper of any public place who
knowingly permits prostitutes to resort to such place for their trade. No question of
distance arises with respect to such a conviction.
 Section 18(2) - Section 18(2) empowers the court to pass orders under s. 18(1) if there
is a conviction under Section 7 regardless of whether it falls under s. 7(2) (a) or (b).
Therefore, Section 18(2) operates not merely on places within the offending distance
of 200 yds. but in all places where the activity of prostitution had been conducted.
 Interpretation - To dispel the ambiguity in Section 18(2) it must be interpreted in such
a way as to advance the remedy and suppress the evil. If the purpose of extirpating the
commercial vice from a place were to be successful the occupier must be expelled from
there.
 Criticism of Drafting - SITA, 1956 was enacted by Parliament in a mood of high
morality but with such drafting inefficiency that it has pathetically failed to produce
any decline in the malady.
Decision –
We dismiss the appeal, upholding the power of the magistrate to order eviction when there is a
conviction under s. 3 or s. 7 confident that public power vested in a public functionary for
public benefit shall be used whenever conditions necessary for the exercise are present, so that
a comprehensive social purpose of moral clean-up of public places is accomplished.

39
NDPS Act, 1985

Law Centre – 1, FOL, DU
LL.B. DU - Paper No. 9121
Question 1 (b) - P has been convicted by the trial Court under Section 19 of the NDPS Act,
1985. As it was his second conviction, the Trial Court awarded death penalty on him. P
challenged it as unconstitutional being violative of Articles 14 & 21 of the Constitution of
India. Decide.
Answer – Indian Harm Reduction Network v. Union of India.
Question 2 (b) – Inspector of Police got information that the accused, M was trying to transport
Ganja in a car to neighbouring city. Immediately thereafter, inspector left the police station and
reached the spot where after some time M came in car. Inspector stopped M searched the Car
which had many bundles of Ganja. M was arrested and put on trial. M took defence of non-
compliance of Section 42 of NDPS Act, 1985. Decide.
Ans. Karnail Singh Case – Section 42
Question 3 (b) – What measures does the Central Government have to take for preventing
combating abuse of and illicit traffic in narcotic drugs, etc.?
Question 5 (b) – A police party was proceeding from Gokulpuri to Bhajanpura on patrol duty
in a jeep. On the way, they spotted T who was coming on foot carrying a plastic being in his
hand. T Police Party apprehended T being suspicious of him. Immediately, Police Inspector
searched T without saying anything and recovered large quantity of opium from the bag. T was
arrested and put on trial where he took the defence of non-compliance of section 50 of NDPS
Act, 1985. Decide.
Answer – Vijaysinh Chandubha Case – Section 50
LL.B. DU – Paper No. 2071

Question 1 (b) – Discuss the provisions relating procedure to be followed by the Central
Government and State Governments for disposal of seized drugs & psychotropic substances
under the NDPS Act, 1985 referring the law laid down in Union of India v. Mohanlal &
Another (2016) 3 (SCC) 379.
Answer - Union of India v. Mohanlal & Another
Question 3 (b) - X, a constable get information with reference to a person Y selling vegetable
narcotic drugs. On his way to the Police Station for furnishing the said information to Su-
Inspector of Police found Sub-Inspector on Patrol Duty. On communication of the said
information, the Sub-Inspector along with Police Party immediately proceeded to the place and
apprehended the accused. In the light of the above facts, discuss the procedure for search,
service and arrest under the NDPS, 1985 along with decided case laws.
Question 6 (b) – The provisions contained in Section 31A of the NDPS Act, 1985 makes the
send provision mandatory and provide for standardized death penalty. In the light of this
statement discuss with relevant case law whether section 31A of NDPS, Act, 1985 is violative
of Article 14 and Article 21 of the Constitution of India.
Answer- Indian Harm Reduction Network v. Union of India

40
LL.B. DU – 2019
Question 2 (b) – Discuss the law laid down in Karnail Singh v. State of Haryana (2009) 7 SCC
539.
Question 5 (b) – What are the measures taken by the Central Government for preventing and
combating abuse of illicit traffic in narcotic drugs etc.?
Discuss with reference to the provisions of the NDPS, Act 1985.
Question 8 (d) – Write short note on provisions related to offences triable by Special Courts
under the NDPS Act, 1985.
Leading Cases
Karnail Singh v. State of Haryana29 July 29, 2009 SC

Sections 21, 42, 43 & 50, History, Object & Statement Constitutional
of NDPS, Bench
Vijaysinh Chandubha Jadeja v. State of Gujarat Oct. 29, 2010 SC
Sections 41, 42, & 50, Constitutional
Object – Para 12 Bench
Harjit Singh v. State of Punjab March 30, SC
Section 18 & Definition 2011 Division Bench
Indian Harm Reduction Network v. Union of India June 16, Bombay High
Constitutional Validity of Section 31A (Petition u/Art. 2011 Court
226 The Statement of Objects and Reasons for
introducing Section 31-A in 1989.
Union of India v. Mohanlal & Anr January 28, SC
Procedure to be followed for seizure, sampling, safe 2016 Division Bench
keeping and disposal of the seized Drugs, Narcotics and
Psychotropic substances
Rhea Chakraborty v. Union of India September Special Court
Bail was rejected on the ground that section 27A, NDPS 14, 2020 (NDPS)
Act, 1985 does not require quantity of prohibited drugs.
Rhea Chakraborty v. Union of India October Bombay High
Bail was granted 7, 2020 Court
INTRODUCTION
 Article 47, Constitution of India
 Single Convention on Narcotic Drugs, 1961
 Convention on Psychotropic Substances, 1971
 The Narcotic Drugs and Psychotropic Substances, Act, 1985
 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, 1988
 The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,
1988
 Narcotics Control Bureau (NCB)
 IPC
 Death Sentence
 Salient Features
29
The Judgment is available at: https://main.sci.gov.in/judgment/judis/35186.pdf (Last visited on September 14,
2020).

41
Article 47 of the Constitution of India says, “The State shall regard the raising of the level of
nutrition and the standard of living of its people and the improvement of public health as among
its primary duties and, in particular, the State shall endeavour to bring about prohibition of the
consumption except for medicinal purposes of intoxicating drinks and of drugs which are
injurious to health”.
Article 47
In respect of NDPS
Rule Exception
Allowing drugs for

Prohibition of drugs
medical purposes
India is signatory of ‘Single Convention on Narcotic Drugs, 1961’ & ‘Convention on
Psychotropic Substances, 1971’. The Narcotic Drugs and Psychotropic Substances, Act, 198530
was enacted by Parliament. It came into force on November 14, 1985. Certain provisions were
subsequently amended in 1989 and in 2001. There are total sections 83. There is one schedule.
There are six chapters. Section 82 of this Act repealed
 The Opium Act, 1857 (13 of 1857),
 The Opium Act, 1878 (1 of 1878) and
 The Dangerous Drugs Act, 1930 (2 of 1930).
India is a signatory to the United Nations Convention against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances, 1988. The Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 was enacted by Parliament. It came into force on July 4,
198831. This Act was enacted under Article 253 of the Constitution of India.
Government of India constituted the Narcotics Control Bureau (NCB) on the 17th of March,
1986 by using power conferred under Section 4 (3) of NDPS Act, 1985.
Sections 272 to 276, IPC were not sufficient. So special law was enacted. NDPS Act, 1985 is
special law and it comes under classification of Criminal Law.
30
The Narcotic Drugs and Psychotropic Substances, Act, 1985 is available at:
https://www.indiacode.nic.in/bitstream/123456789/1791/1/198561.pdf (Last visited on September 14, 2020).
31
The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 is available at:
https://www.indiacode.nic.in/bitstream/123456789/1887/1/a1988-46.pdf (Last visited on September 14, 2020).

42
Reason of Enactment of NDPS Act, 1947
Reasons of
enactement o NDPS
Act, 1985
Insufficient previous laws

International
Article 47, 1. Opium Act, 1857
Conventions (1961
Constitution of India
& 1971) 2. IPC, 1860
3. Opium Act, 1878
4. The Dangerous Drugs Act,
1930
SALIENT FEATURES OF NDPS ACT, 1985

There are following salient features of this Act –
3. Two parts of the Act, 1985 – There are two parts of NDPS Act, 1985 namely
 Narcotic drugs
 Psychotropic Substances
The Narcotic Drugs and Psychotropic Substances, Act,

1985
Narcotic Drug Psychotropic

Sec. 2 (xiv) Effect - Sec. 2 (xxiii) Effect -
Sleeping Mental condition (Mood,
Thought, Emotion,
Behaviour & Perception
Coca leaf,
Natural
Cannabis
Synthetic
Opium
Poppy straw
Manufactured
drugs
4. Narcotic Drugs – Narcotic drugs are prepared with the help of three plants. These
are
 Cannabis

43
 Coca
 Opium
Section 2 (xiv)
Narcotic Drug
Three Plants & its

derivatives
Sec. 2 (iii)Cannabis
Section 2 (v) Section 2 (xvii)
1.Bhang - UP/Bihar
Coca Opium Poppy
2. Sukha - Punjab
1. Cocaine 1. Morphine
3. Charas
5. Reformative Theory - This Act provides opportunities to addict to be reform. Section

64A is based on ‘Reformative Theory’. It gives immunity from prosecution to addicts
volunteering for treatment.
6. Restriction on cultivation, sell, and purchase etc. – Section 8 deals restriction on
cultivation, sell, purchase etc. It imposes restriction on cultivation of coca plant or
opium poppy or any cannabis plant except for medical or scientific purposes and in the
manner and to the extent provided by the provisions of this Act or the rules or orders
made thereunder. Central Government (Section 9) and State Government (Section 10)
may permit and regulate cultivation etc.

44
Sections 8
Rule Exceptions
Medical Purpose - Sec.

No cultivation, 8 & Art. 47 of the Const.
sale, purchase,
manufacturing
scientific purposes -
import and
export etc. Section 8
Permission with Central Govt. -

Section 9
Permission with State Govt. - Section 10
7. Deterrent Theory - Section 31A provides ‘Death Sentence’ in certain circumstances.

8. Division of punishment - Punishment has been divided into three categories on the
basis of quantities of narcotic drugs and psychotropic substance. In case previous
conviction, there is provision for enhance punishment32.
Punishment u/NDPS
Punishment depends
Three kinds
upon quantity
More than small and less

Commercial
Small Quantity than commercial
Quantity
quantity (Middle)
9. Presumption of guilty mind- Presumption of innocence has been rejected. Court shall
presume that the accused has committed offence with guilty mind. Burden of proof to
rebut presumption shall lies on accused.33&34
10. Beyond reasonable doubts - Fact must be proved beyond reasonable doubts.35
32
33
34
35

45
Comparison between IPC & NDPS

Grounds IPC NDPS
Presumption Presumption of innocence Presumption of commission of
crime - Section 35 (1).
Proof 1. Prosecutor must prove Accused must prove beyond
beyond reasonable doubts reasonable doubts. Preponderance
2. Accused must prove of probability is not sufficient -
preponderance of probabilities Section 35 (2).
11. Special Court - There is provision for establishment of Special Court for speedy trial.36
12. Cognizable and non-bailable offence- All offences are cognizable under this Act.
There are certain circumstances in which bail may be granted.37
13. Publication of name & residence - In certain cases, in case of conviction name and
residence of accused may be published.38 NDPS Act is special law. So only those
provisions of Cr.P.C. will be applicable which are not inconsistent of NDPS Act, 1985.
14. Arrest and production before Magistrate -The provisions of the Code of Criminal
Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions
of this Act, to all warrants issued and arrests, searches and seizures made under this
Act.39 Several provisions of CrPC & Article 22 (2) of the Constitution of India provides
that arrested persons must be produced within 24 hours. Arrested person under NDPS
must also be produced before Magistrate within 24 hours.
15. Report of arrest & seizure must be submitted within 48 hours. - Report of arrest &
seizure must be sent to immediate official superior within forty-eight hours. There is
provisions for confiscation of properties.
Production of Accused Within 24 hours CrPC, Constitution & section 51,
NDPS Act
Submission of Report Within 48 hours Section 57, NDPS Act, 1957
16. Power to tender immunity from prosecution.— Section 64 provides, ‘The Central
Government or the State Government may, if it is of opinion (the reasons for such
opinion being recorded in writing) that with a view to obtaining the evidence of any
person appearing to have been directly or indirectly concerned in or privy to the
contravention of any of provisions of this Act or of any rule or order made thereunder
it is necessary or expedient so to do, tender to such person immunity from prosecution
for any offence under this Act or under the Indian Penal Code (45 of 1860) or under
any other Central Act or State Act, as the case may be, for the time being in force, on
condition of his making a full and true disclosure of the whole circumstances relating
to such contravention’.
Tendering of Pardon Provisions
CrPC Sections 306 to 308
NDPS Section 64
36
37
38
39

46
OBJECTS OF NDPS ACT, 1985

Main objective of this Act is to fulfill the purpose of Article 47 of the Constitution of India.
Purpose of this Act is to regulate use of some substance. Objects pf this Act may be inferred
from section 4 of the Act. These are -
 preventing and combating abuse of narcotic drugs and psychotropic substances and the
illicit traffic therein and
 for ensuring their medical and scientific use.
Karnail Singh v. State of Haryana - In Karnail Singh Case, Supreme Court observed. “The
statement of objects and reasons of the NDPS Act makes it clear that to make the scheme of
penalties sufficiently deterrent to meet the challenge of well organized gangs of smugglers, and
to provide the officers of a number of important Central enforcement agencies like Narcotics,
Customs, Central Excise, etc. with the power of investigation of offences with regard to new
drugs of addiction which have come to be known as psychotropic substances posing serious
problems to national governments, this comprehensive law was enacted by Parliament enabling
exercise of control over psychotropic substances in India in the manner as envisaged in the
Convention on Psychotropic Substances, 1971.
The Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment for
various offences relating to illicit trafficking in narcotic drugs and psychotropic substances.
Narcotic crimes heinous than murder and anti-social in nature”.
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES
NDPS
Use (Medicine) Misuse

(Pain killer) (Addict)
Narcotic word derives from Greek word ‘Narkos’. It means sleep. Narcotic Drugs increases
sleeping. Psychotropic Substances effects brain. These are taken for medicine. But excess of
these affects body. There are two parts –
 It makes habitual
 Quantity of doses started to increase.

47
Harjit Singh v. State of Punjab40&41

(How to decide quantum of punishment)
Summary
 Section 2 (xv) (a)
 Section 2 (xv) (b)
 Section 8
 Section 18 (b)
 Quality of opium
 Entries 56, 77, 92 & 93
Division Bench
Hon’ble Justice P. Sathasivam
Hon’ble Justice Dr. B.S. Chauhan
Date of Judgment
March 30, 2011
Author of Judgment
Hon’ble Justice Dr. B.S. Chauhan
Facts –
 On 4.7.2003, a police party was proceeding from Focal Point, Mandi Gobindgarh to
G.T. Road on patrol duty in a government vehicle.
 When the police party reached near the culvert of minor in the area of village Ambe
Majra, the police party spotted Harjit Singh who was coming on foot, from the side of
Ambe Majra carrying a plastic bag in his right hand.
 On seeing the police, the appellant turned to the left side of the road. The police party
apprehended the appellant, being suspicious of him.
 In the meantime, Ashok Kumar, an independent witness also came to the spot and
joined the police party.
 The appellant was apprised (Informed) of his right of being searched in the presence of
a Gazetted Officer and in that respect his statement was recorded.
 Shri Dinesh Partap Singh, Assistant Superintendent of Police, was summoned to the
spot by the Investigating Officer and in his presence, Amarjit Singh, Inspector (P.W.3)
searched the plastic bag of the appellant and the substance contained therein was found
to be opium.
 Two samples of 10 gms. each of the opium were taken. The remaining opium was found
to be 7.10 Kgs. The samples and the remaining opium were sealed and taken into
possession by the police party.
 A formal FIR was registered against the appellant; on personal search, an amount of
Rs. 510/- was found with the appellant; the arrest memo of the accused was prepared
and he was formally arrested.
 After completion of investigation and on receipt of the report from the Forensic Science
Laboratory, confirming the contents of the sample to be of opium, a charge-sheet was
filed against him for the offence punishable under Section 18 of the NDPS Act.
 He did not plead guilty to the charges and claimed trial. Trial started.
Trial
40
(2011) 4 SCC 441
41
This judgment is available at: https://main.sci.gov.in/judgment/judis/37802.pdf (Visited on September 18,
2020).

48
 Hostile witness - Ashok Kumar, an independent witness was not examined by the
prosecution, as he had been won over by the appellant.
 Section 313, CrPC – In his statement under Section 313 of the Code of Criminal
Procedure, 1973, the appellant stated that the prosecution case was false; he had been
taken by the police from his house and Rs.6,000/- had been snatched from him; he was
not physically fit even to walk as he had met with an accident in 1999. The appellant
also examined 6 witnesses in his defence.
Decision
(1) Special Judge, Fatehgarh Sahib (2.9.2005) - Harjit Singh was convicted for the offence
punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and
was sentenced to undergo RI for 10 years and to pay a fine of Rs.1,00,000/- in default whereof,
to undergo further RI for 6 months.
Decision of Special Court Imprisonment Fine

Punishment under Section 18, NDPS Act, RI for 10 Years Fine 1,00,000 Rs.
1985
In case of default of payment
of fine, further RI for 6
months.
(2) High Court (19.5.2010) – High Court confirmed decision of Special Judge.
(3) Supreme Court (March 30, 2011) – Supreme Court dismissed appeal and confirmed
decision of High Court.
Court Decision Date of Decision
Special Court (NDPS) Conviction 02.09.2005
High Court Conviction 19.05.2010
Supreme Court Conviction 30.03. 2011
Issues before Supreme Court – There was concurrent finding of facts in decision of Special
Court and High Court. So main issue was regarding quantum of punishment.
 Whether RI for ten years and one lakh fine is justified.
 What should be considered at the time of imposing of sentence?
Argument of appellant - Appellant primarily submitted that as the opium recovered from the
appellant weighing 7.10 kgs. contained 0.8% morphine, i.e. 56.96 gms., the quantity was
below the commercial quantity, however, more than the minimum quantity prescribed under
the Notification issued in this respect, the maximum sentence awarded by the court was
unwarranted.
Argument of appellant
Opium Morphine
7.10 kgs. 0.8% morphine, i.e. 56.96 More than minimum less
gms., than commercial

49
Morphine 56.96 gm
Opium 7.10 kg
Argument of State – There are following two arguments -

(1) Section 2(xv) (a) - There are two parts of definition. First part deals pure opium and second
part deals mixture opium. Facts of this case covered under pure opium i.e. Section 2(xv) (a)
Opium recovered from the accused is natural rather than mixture. Punishment must be decided
on the basis of opium rather than morphine. Question of morphine arose when opium is
mixture.
In easy words we can say that the entire substance recovered from the appellant was opium and
not any kind of mixture, the question of determining the quantity or percentage of morphine in
the substance could not arise.
(2) Entry 92 – Entry number 77 specifically deals morphine while Entry number 92
exclusively deals opium. So no question arise regarding application of entry no. 77.
The opium itself is an offending material under the NDPS Act. Therefore, the court has to
proceed in view of Entry No.92 in the Notification in this regard which deals with opium and
any preparation containing opium and specifies that a small quantity is only 25 gms., whilst a
commercial quantity is 2.5 kgs.
In the instant case as it was 7.10 kgs, i.e. the appellant was carrying about three times the
minimum amount required for a commercial quantity.
Observation of Supreme Court –
 Opium is essentially derived from the opium poppy plant. The opium poppy gives out
a juice which is opium. The secreted juice contains several alkaloid substances like
morphine, codeine, thebaine etc. Morphine is the primary alkaloid in opium.
Opium Poppy
Opium
Morphine Codeine Thebaine
Property of opium –
 Opium is a substance which once seen and smelt can never be forgotten because opium
possesses a characteristic appearance and a very strong and characteristic scent.
 It can be identified without subjecting it to any chemical analysis.
 It is only when opium is in a mixture so diluted that its essential characteristics are not
easily visible or capable of being apprehended by the senses that a chemical analysis
may be necessary.

50
 In case opium is not mixed up with any other material, its chemical analysis is not
required at all. Of course, an analysis will always be necessary if there is a mixture and
the quantity of morphine contained in mixture has to be established for the purpose of
definition of opium.
Pure Opium Mixed Opium
Mode of identification It can be identified without A chemical analysis may be
chemical analysis necessary.
Commercial Quantity - In the instant case, the material recovered from the appellant was
opium. It was of a commercial quantity and could not have been for personal consumption of
the appellant.
Thus the appellant being in possession of the contraband substance had violated the provisions
of Section 842 of the NDPS Act and was rightly convicted under Section 18(b) of the NDPS
Act.
Violation of Section 8 –
In the instant case, the material recovered from the appellant was opium. It was of a commercial
quantity and could not have been for personal consumption of the appellant. Thus the appellant
being in possession of the contraband substance had violated the provisions of Section 8 of the
NDPS Act.
Section 18 Punishment for contravention in relation to opium poppy and opium
Sec. 18
(Punishment in case of opium & Opium Poppy)
Three Clases
Section 18 (b) - Section 18 (c) -

Section 18 (a) -
Commercial More than small & less
SmallQuantity
Quantity than commercial
Maximum Minimum - Max. Maximum

1. RI - One Year 1. 10 Yrs - 20 Yrs 1. RI - Ten Yrs
2. Fine - 10,000 Rs. 2. Fine - One lakh - 2. Fine - One Lakh
3. Both Two Lakh
42
Section 8 (c) -No person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use,
consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug
or psychotropic substance,

51
Relation between Section 2 (XV) (a) & Section 2 (XV) (b) -

In case the offending material falls in clause (a) then the proviso to
Section 2(xv) would not apply. The proviso would apply only in case the contraband
recovered is in the form of a mixture which falls in clause (b) thereof.
The instant case squarely falls under clause (a) of Section 2(xv) of the NDPS Act and Clause
(b) thereof is not attracted for the simple reason that the substance recovered was opium in the
form of the coagulated juice of the opium poppy. It was not a mixture of opium with any other
neutral substance. There was no preparation to produce any new substance from the said
coagulated juice.
For the purpose of imposition of punishment if the quantity of morphine in opium is taken as
a decisive factor, Entry No.92 becomes totally redundant.
Definition of opium
 The NDPS Act defines ‘opium’ under Section 2(xv) as under:
 (a) the coagulated juice of the opium poppy; and
 (b) any mixture, with or without any neutral material, of the coagulated juice of the
opium poppy, but does not include any preparation containing not more than 0.2 per
cent of morphine.
Opium
Section2 (xv)
Two parts of
definition
(a) The coagulated juice of the (b) Mixture

opium poppy
But does not include in case of less than 0.2
per cent. of morphine;
Quantity of morphine is irrelevant - The material so recovered from the appellant is opium
in terms of Section 2(xv) of the NDPS Act. In such a fact-situation, determination of the
contents of morphine in the opium becomes totally irrelevant for the purpose of deciding
whether the substance would be a small or commercial quantity.
The entire substance has to be considered to be opium as the material recovered was not a
mixture and the case falls squarely under Entry 92. The percentage of morphine is not a
decisive factor for determination of quantum of punishment, as the opium is to be dealt with
under a distinct and separate entry from that of morphine.
Entry No.92 is exclusively applicable for ascertaining whether the quantity of opium falls
within the category of small quantity or commercial quantity.
Entry 56 deals with Heroin, Entry 77 deals with Morphine, Entry 92 deals with Opium, Entry
93 deals with Opium Derivatives
S.no. Entry Substance
1 Entry 56 Heroin
2 Entry 77 Morphine
3 Entry 92 Opium
4 Entry 93 Opium Derivatives

52
Conclusion
Hon’ble Supreme Court observed, “In view of the above, we do not find any substance in the
appeal. It is devoid of any merit and, accordingly, dismissed”. There are following crux of the
judgment -
1. There was contravention of section 8.
2. Quantity of opium was commercial quantity. So there was conviction under section 18
(b)
3. It was pure opium. So it comes under section 2 (xv) (a).
4. There are separate Entries for opium and morphine. So Entry 92 is applicable.
5. In this facts, punishment was decided on the basis of opium rather than morphine.
6. Conviction and punishment were same in decision of Special Court, High Court and
Supreme Court.

53
Indian Harm Reduction Network and Another v. Union of India & Other

Question 1 (b) - P has been convicted by the trial Court under Section 19 of the NDPS Act,
1985. As it was his second conviction, the Trial Court awarded death penalty on him. P
challenged it as unconstitutional being violative of Articles 14 & 21 of the Constitution of
India. Decide.
Question 6 (b) – The provisions contained in Section 31A of the NDPS Act, 1985 makes the
send provision mandatory and provide for standardized death penalty. In the light of this
statement discuss with relevant case law whether section 31A of NDPS, Act, 1985 is violative
of Article 14 and Article 21 of the Constitution of India.
Summary
Statutory Provisions
 Section 31, NDPS Act, 1985
 Section 31A, NDPS Act, 1985
 Section 27A, NDPS Act, 1985
 Section 235 (2), CrPC, 1973
 Section 354 (3), CrPC, 1973
 Section 303, IPC, 1860
 Article 6, International Conventions on Civil & Political Rights, 1966
Leading cases
 Maneka Gandhi v. Union of India (January 25, 1978)
 Bachan Singh v. State of Punjab (May 09, 1980)
 Mithu Singh v. State of Punajb (July 07, 1983).
Division Bench –
 Hon’ble Justice A.M. Khanwilkar
 Hon’ble Justice A.P. Bhangale
Author of Judgment - Hon’ble Justice A.M. Khanwilkar
Date of Judgment: June 16, 2011.

54
Facts –
Facts
Two PILs u/A 226

challenging 31A, NDPS &
One appeal
PIL by Indian Harm PIL and Appeal by

Reduction Network and Gulam Mohemmad
Another Malik
Convicted by Ahmedabad &

NGO
Mumbai Special Judge (NDPS)
He was awarded death sentence in

second conviction
.
Journey of Section 31A,

NDPS Act, 1985
It was narrowed Indian Harm

Inserted in 1989 down Amendment in
Reduction 2014 for
2001 Network Case. compliance of
Section 31A was ratio of Indian
modified (2011) Harm Reduction
Network case
Issues – There are following issues
1. Is Section 31A, NDPS violates Article 14, Constitution of India?

Answer of Court – No. It does not violates.
2. Is Section 31A, NDPS violates Article 21, Constitution of India?
Answer of Court – Yes. It violates.
3. Whether Section 31A is void ab initio?
Answer of Court – No.
4. Whether ‘Shall’ may be converted into ‘May’? Whether mandatory death
sentence may be converted into ‘Optional death sentence’?
Answer of Court – Yes. Answers of both questions are yes.

55
Abstract
Narcotic crimes are more heinous than murder and it is anti-social in nature. Section 31A was
inserted in 1989. It was modified in 2001. By this Section death sentence was made mandatory
in certain cases. Constitutional validity of this Section was challenged in Indian Harm
Reduction Network and Another v. Union of India & Other. It was challenged by NGO i.e.
Indian Harm Reduction Network and by Gulam Mohemmad Malik who had been punished by
death sentence under Section 31A, NDPS Act. He had been convicted by Special Judge
(NDPS), Ahmedabad in 2004 and Special Judge (NDPS), Mumbai in 2008. This Act was
challenged on the basis of violation of constitutional norms imbedded in Article 14 and Article
21 of the Constitution of India.
To decide Constitutional validity of this case, Bombay High Court thoroughly discussed
several cases for example Maneka Gandhi v. Union of India (January 25, 1978), Bachan Singh
v. State of Punjab (May 09, 1980), Mithu Singh v. State of Punajb (July 07, 1983).
In this case Section 303 (Mandatory Death) of IPC was also discussed. Section 354 (3), CrPC,
which prescribes writing of ‘Reason’ & ‘Special Reasons’, was also discussed. Some
International Conventions were basis of arguments of petitioners. Bombay High Court
concluded following important points –
1. Article 21 – Section 31 A violates Article 21 of the Constitution of India. Article 21
prescribes procedure must be just, fair & reasonable. Bombay High Court held that
NDPS Act, 1985 does not prescribe just, fair & reasonable procedure for taking death.
2. Article 14 – Section 31 A does not violate Article 14 of the Constitution of India. There
is reasonable classification. This classification is –
 First Time offender and
 Repeat offender.
3. Section 31A is not void ab initio - Section 31-A was declared unconstitutional but it
was not declared unconstitutional void ab initio. Provision of Section 31A was
modified.
4. ‘Shall’ converted into ‘May’ – The expression “shall be punishable with death” must
be read as “may be punishable with death” in relation to the offences covered under
Section 31-A of the Act.
5. Relation between Section 31 & 31A – ‘Shall’ was substituted by ‘May’. Effect of this
is that the Court will have discretion to impose punishment specified in Section 31 of
the Act for offences covered by Section 31-A of the Act.
But, in appropriate cases, the Court can award death penalty for the offences covered
by Section 31-A, upon recording of special reasons therefor.
Conclusion
After this decision, mandatory death sentence converted into optional death sentence. NDPS
Act, 1985 was again amended for compliance of judgment of Bombay High Court in 2014
which came into force in May 01, 2014. Effect of this judgment and Amendment is that now
imposing death sentence is discretionary power of Court. Court may or may not grant on the
basis of facts and circumstances of the case.

56
Section 31A
Before 2014 Amendment After 2014 Amendment
Death sentence was mandatory Death sentence is optional
Section 31A (Before Amendment)

Section 31A. Death penalty for certain offences after previous conviction. –
(1)
I. Notwithstanding anything contained in section 31,
II. First Conviction -if any person who has been convicted of
A. the commission of, or
B. attempt to commit, or
C. abetment of, or
D. criminal conspiracy to commit,
any of the offences punishable under
 section 19,
 section 24,
 section 27A and
 for offences involving commercial quantity of any narcotic drug or psychotropic
substance,
Second or subsequent conviction - is subsequently convicted of
A. the commission of, or
B. attempt to commit, or
C. abetment of, or
D. criminal conspiracy to commit, an offence relating to, -
(a) engaging in the
 production,
 manufacture,
 possession,
 transportation,
 import into India,
 export from India or
 transhipment,
of the narcotic drugs or psychotropic substances specified under column (1) of the Table
below and involving the quantity which is equal to or more than the quantity indicated
against each such drug or substance, as specified in column (2) of the said Table:
TABLE
Particulars of narcotic
drugs/psychotropic substances Quantity
(1) (2)
(i) Opium . . . . . . . . . . 10 kgs.
(ii) Morphine . . . . . . . . . . 1 kg.
(iii) Heroin . . . . . . . . . . 1 kg.
(iv) Codeine . . . . . . . . . . 1 kg.
(v) Thebaine . . . . . . . . . . 1 kg.
(vi) Cocaine . . . . . . . . . . 500 grams
(vii) Hashish . . . . . . . . . . 20 kgs.

57
(vii ) Any mixture with or without any neutral material of lesser of the quantity
any of the above drugs between the quantities given
against the respective
narcotic drugs or
psychotropic substances
mentioned above forming
part of the mixture]
(ix) LSD, LSD-25 (+) - N, N-Diethyllyser gamide (d- 500 grams
lysergic acid diethylamide)
(x) THC (Tetrahydrocannabinols, the following 500 grams
Isomers: 6a (10a), 6a (7),7,8,9,10,9 (11) and their
stereochemical variants)
(xi) Methamphetamine(+ )-2-Methylamine-l- 1,500 gram
Phenylpropane
(xii) Methaqualone(2-Methyl-3-0-tolyl-4- 1,500 gram
(3h)quinazolinone)
(xii) Amphetamine (+)-2-amino-1-phenylpropane 1,500 gram
(xi) Salts and preparations of the psychotropic substances 1,500 gram;
mentioned in (ix) to (xiii)
(b) financing, directly or indirectly, any of the activities specified in clause (a),
“shall be punishable with death”43

(2) Offence committed outside India - Where any person is convicted by a competent court
of criminal jurisdiction outside India under any law corresponding to the provisions of section
19, section 24 or section 27A and for offences involving commercial quality of any narcotic
drug or psychotropic substance, such person, in respect of such conviction, shall be dealt with
for the purposes of sub-section (1) as if he had been convicted by a court in India.
43
After 2014, “shall be punished with punishment which shall not be less than the punishment specified in section
31 or with death”.

58
Section 31A (Before 2014 Amendment)

(At least two convictions)
Offence committed within India

Death sentence was mandatory
or outside India
First Conviction Second or subsiquent conviction
Offence prescribed
Section 19 u/ colum 1
Section 24
Quanty of NDPS
prescribed in
Section 27A column 2
Conviction for
commercial
quantity
Conditions for application of Section 31A – There are following conditions for application
of Section 31A –
There must be two or more convictions under prescribed provisions and circumstances. These
are -
1. First Conviction – He must have been convicted either Section 19,44 Section 24,45
Section 27A46 or for commercial quantity47. Sections 19, 24 & 27A is independent of
any quantity of drugs.
2. Second Conviction – Second conviction must be for prescribed quantity of contraband
NDPS. Under section 31A quantity has been prescribed.
 First and second convictions must be according to abovementioned conditions.
If either is missing section 31A will not be applicable.
 Example – Parth was convicted two times. First time he was convicted under
section 19 by Special Judge, Ahmedabad in 2004. Second time he was convicted
for possession of 20 kg opium (while section 31 A prescribes minimum quantity
10 kg) by Special Judge, Bombay in 2008. His matter will come under Section
31A.
44
Section 19 - Punishment for embezzlement of opium by cultivator.
45
Section 24 - Punishment for external dealings in narcotic drugs and psychotropic substances in contravention
of section 12.
46
Section 27A - Punishment for financing illicit traffic and harbouring offenders.
47
There are three types of quantities have been discussed under NDPS Act, 1985. These are – (1) small quantity
(for example Section 18 (a)), (2) Commercial Quantity (for example Section 18 (b)), (3) More than small and less
than commercial quantity (for example Section 18 (c)).

59
 Example – Shivani was convicted two times. First time she was convicted under
section 18 (a) by Special Judge, Ahmedabad in 2004. Section 18 (a) deals
conviction for small quantity rather than commercial quantity. Second time she
was convicted for possession of 20 kg opium (while section 31 A prescribes
minimum quantity 10 kg) by Special Judge, Bombay in 2008. Her matter will
not come under Section 31A. Reason of this is that her first conviction was
neither for Section 19, 24, 27A nor for commercial quantity.
Arguments of Petitioners
There are following arguments of petitioners against mandatory death sentence (Section 31A,
NDPS Act, 1985) –
1. Inhumane - Mandatory death penalty for drug offences is excessive, unscientific and
inhumane.
2. Article 21 & Maneka Gandhi Case – Procedure must be just, fair & reasonable.
According to the petitioners, breach of such safeguards guaranteed to the accused
renders the procedure for capital sentencing under Section 31-A unfair, unjust and
arbitrary.
3. Denial of right of pre-sentence hearing [Section 235 (2)] - The petitioners assert that
Section 31-A is violative of Article 21 of the Constitution, more particularly on account
of denial of procedural safeguards, amongst others, right of pre-sentence hearing on
the question of sentence. Further, the imposition of standardised or mandatory death
penalty betrays the well-established principle that sentencing must be individualised,
and ought to depend on the circumstances of the offence as well as the offender.
4. Violation of Section 354 (3) – Section 354 (3), CrPC says that special reasons must be
written for imposing death sentence. In the case of Bachan Singh v. State of Punjab
(May 09, 1980), Supreme Court observed that death sentence must be awarded in
‘Rarest of rare Cases”.
The requirement of recording special reasons by the Court for imposing death penalty
under Section 31A is completely done away with and the exercise of judicial discretion
on well-recognised principles, which is the highest safeguard for the accused, and is at
the core of administration of criminal justice, is impaired.
5. Violation of Separation of power - According to the petitioners, taking away the
judicial discretion in the matter of sentencing inevitably impinges upon the doctrine of
separation of powers and the rule of law; for, sentencing is judicial function, centered
on administration of justice. Section 31-A completely eliminates judicial discretion in
sentencing. That violates the constitutional norms of separation of powers and rule of
law, for which reason, the provision is violative of Article 21 of the Constitution.
6. Violation of Article 14 - The petitioners have also attacked the validity of Section 31-
A on the touchstone of Article 14 of the Constitution of India, which postulates that
classification for the purpose of legislation must be reasonable. According to the
petitioners, the distinction between persons covered by law and those left out of it
should be based on an intelligible differentia; and that differentia must have a rational
nexus to the object sought to be achieved by law. Whereas, the repeat offenders can be
sentenced under Section 31 or Section 31-A, as the case may be. Section 31 already
provides for enhanced punishment for offences after previous conviction.
7. Disproportionate penalty - According to the petitioners, the death penalty for drug
crimes is disproportionate, for which reason, it is opposed to the tenets of Articles 14
and 21 of the Constitution. Mandatory death penalty is opposed to the constitutional
obligation to protect the right to life of persons accused of drug crimes. According to

60
the petitioners, the narcotic drugs and psychotropic substances are not abhorrent, per
se. They serve genuine medical and scientific needs of the community, and, as such,
are beneficial to society. Engaging in the production, manufacture, possession,
transportation, import and export or transshipment of narcotic drugs and psychotropic
substances, even in the quantities specified in the table to Section 31-A, is not, per se,
illegal. Those activities are penalised, when they are carried out without a licence, or in
contravention of the terms and conditions prescribed in the licence. According to the
petitioners, the mere absence of, or derogation from a licence, cannot warrant the
extreme penalty of capital sentence.
8. ICCPR (Article 6)48 -Reliance has been placed on Article 6 of the ICCPR which,
according to the petitioners, grants protection against the arbitrary extinction of the right
to life. It provides that every human being has the inherent right to life. That right shall
be protected by law. Further, no one shall be arbitrarily deprived of his right.
Arguments of Respondents
1. Death penalty is not cruel - Relying on the decisions of the Apex Court, it was argued
that the death penalty cannot be considered as "cruel and unusual punishment".
2. Death penalty for Heinous Crimes - The Apex Court has, time and again, held that
narcotic crimes are more heinous than murder. Murder affects only individual while
narcotic drugs affects society and economy of nation.
3. No violation of Article 21- In matters covered by Section 31-A, death penalty does not
violate Article 21 of the Constitution. There are sufficient procedural safeguards which
are observed before pronouncing the mandatory death penalty.
4. No violation of Article 14 - The classification made by Section 31-A is between
 first-time offender and
 repeat offender
engaged in dealing with huge quantity of drugs. It is reasonable and is based on intelligible
differentia. It has nexus with the objects of the Act, viz., stricter control and deterrence in
relation to narcotic crimes - more heinous than murder and anti-social in nature.
5. Comparison between Section 31 & Section 31A - The classification between Section
31 and 31-A is also rational, given the nature of repeat offences set out in Section 31A.
6. Legislature’s prerogative (Privilege) - The sentencing is, essentially, a legislative
policy. Whether to grant the Courts any discretion in sentencing is also Legislature’s
prerogative. The mandatory death penalty provided in Section 31-A is in the nature of
minimum sentence in respect of repeat offences by the same offenders of specified
activities and for offences involving drugs quantity specified in column 2 of the table.
It is not open to the Court to reduce the minimum sentence, when provided for by the
Legislature.
Ratio of Bombay High Court
48
Article 6, ICCPR, 1966 - Every human being has the inherent right to life. This right shall be protected by law.
No one shall be arbitrarily deprived of his life.

61
Crux of judgment has been mentioned above. Bombay High Court observed following
important points –
 Violation of Article 21 - Section 31-A of the NDPS Act is violative of Article 21 of
the Constitution of India, as it provides for mandatory death penalty.
 No violation of Article 14 – The Court rejected the challenge to Section 31A on the
stated grounds, being violative of Article 14 of the Constitution of India.
 ‘Section 31A is not void ab initio & ‘Shall’ converted into ‘May’- Instead of
declaring Section 31-A as unconstitutional, and void ab initio, the Court acceded to the
alternative argument of the respondents that the said provision be construed as directory
by reading down the expression "shall be punishable with death" as "may be punishable
with death" in relation to the offences covered under Section 31-A of the Act.
 Relation between Section 31 & 31A - Thus, the Court will have discretion to impose
punishment specified in Section 31 of the Act for offences covered by Section 31-A of
the Act. But, in appropriate cases, the Court can award death penalty for the offences
covered by Section 31-A, upon recording special reasons therefor.
Effect of the Judgment
In pursuance of this Judgment, NDPS Act was amended in 2014 and alternative death
sentence was provided under section 31A of the Act

62
LL.B. DU - Paper No. 9121 (2017 or 2018)

Question 2 (b) – Inspector of Police got information that the accused, M was trying to transport
Ganja in a car to neighbouring city. Immediately thereafter, inspector left the police station
and reached the spot where after some time M came in car. Inspector stopped M searched the
Car which had many bundles of Ganja. M was arrested and put on trial. M took defence of non-
compliance of Section 42 of NDPS Act, 1985. Decide.
Answer –
Section 42
Two parts of this section
Section 42 (1) - Noting Section 42 (2) - Sending report

down information to Superior Officer
Fourthwith 72 Hours
Before 02.10.2001 On & after 02.10.2001
Objects of Section 42 – Section 42 was enacted to control whimsy and capricious mind of
police. Recording of information and sending of report to senior officer is also makes aware
about action of police officer. It favours innocent person.
There are three answers of this question on the basis of three judgments. These are –
1. Abdul Rashid – Section 42 is mandatory. In this problem, there is violation of section
42. There are two reasons –
 Inspector of Police got information but he did not write down. Without writing
he moved, stopped car and searched accused.
 He did not send report forthwith to his immediate official superior.
2. Sajan Abraham – Substantial compliance of section 42 is sufficient if the facts require
urgent situation. In this case accused was in car. Inspector left Police Station
immediately. After some time accused reached. It denotes that it was urgent situation.
So non-writing of information shall not vitiate proceeding. Regarding sending of report
problem is silent. It can be presumed that report was sent later on.
3. Forthwith was replaced by seventy two hours in 2001 – Regarding sending of report
to immediate official superior dispute was resolved in 2001.Section 42 (2) was amended
and ‘Forthwith’ was replaced by ‘Seventy two hours’ in 2001.
4. Karnail Singh v. State of Haryana – In this case, Constitutional Bench, at the time of
deciding questions on reference, said that ratio of both the cases i.e. Abdul Rashid Case
& Sajan Abraham Case revolve on facts of the cases. In this cases Supreme Court
divided its ratio on two parts. These are –
 If there is no urgency. For example if Police Officer is in police station and there is no
immediate urgency, in such cases, the officer is bound to follow section 42 in letter and
spirit.
 If there is no urgency. For example Police Officer is in ‘Patrolling Car’ and he got
information which requires immediate action, in that case substantial compliance will be
sufficient. For example even though he did action without noting down information but
later on he submitted report forthwith to his immediate official superior, it will be sufficient.
 In this problem, taking immediate action was need of time. So proceeding will not vitiate.
Conclusion – In this problem M will not succeed.

63
LL.B. DU – 2019
Question 2 (b) – Discuss the law laid down in Karnail Singh v. State of Haryana (2009) 7
SCC 539.
Answer- Karnail Singh v. State of Haryana
(July 29, 2009)
Summary
1. Statutory Provisions
 Amendment in NDPS Act, October 02, 2001

2. Leading Cases
 Abdul Rashid Ibrahim Mansuri v. State of Gujarat49 ( February 01, 2000) (Full Bench)
 Sajan Abraham v. State of Kerala50 (August 07, 2001) (Full Bench).
 Karnail Singh v. State of Haryana (July 29, 2009) (Constitutional Bench)
Issue – Whether compliance of Section 42 is mandatory?
ABSTRACT
It is well established that search and seizure are essential steps in the armoury of an
investigator in the investigation of a criminal case. There was pending an appeal. In that
appeal, conflicting ratio of two judgments namely Abdul Rashid Ibrahim Mansuri v. State of
Gujarat and Sajan Abraham v. State of Kerala, were cited. Both the cases have been decided
by full bench of Supreme Court. Both the cases were regarding interpretation of Section 42,
NDPS Act. In former case, Full Bench held that compliance of section 42 is mandatory
otherwise matter will be interpreted in favour of accused, while in later case Full Bench held
that section 42 is not mandatory and substantial compliance will be sufficient. Question was
referred to Constitutional Bench to resolve this conflicting opinion. Constitutional Bench
observed that both cases were decided in context of facts. The Bench observed that if there are
sufficient time for taking action, in that case compliance of Section 42 in toto is mandatory.
But police officer is not in police station or immediate action is necessary, substantial
compliance of section 42 will be sufficient.
49
This judgment is available at: https://main.sci.gov.in/judgment/judis/20280.pdf (Last visited on September 23,
2020).
50
This judgment is available at: https://main.sci.gov.in/judgment/judis/17902.pdf (Last visited on September 24,
2020).

64
Section 42
(Search & Arrest without
warrant)
Abdul Rashid Ibrahim Sajan Abraham v. Karnail Singh v.

Mansuri v. State of State of Kerala State of Haryana
Gujarat (2000) (2001) (2009)
Compliance of Compliance of
Compliance of Section 42 is
Section 42 is Section 42 depends
NOT
MANDATORY upon urgency and
MANDATORY(Convicted)
(Acquittal) expediency
Substantial
Write information Sending report to compliance is
& Officicial Superior sufficient
Abdul Rashid Ibrahim Mansuri v. State of Gujarat

Inspector of Police at Dariapur Police Station, got information on 12-1-1988 that one Iqbal
Syed Husen was trying to transport charas up to Shahpur in an autorickshaw.
At about 4.00 p.m. they sighted the autorickshaw which was then driven by Abdul Rashid
Ibrahim Mansuri (the appellant). They stopped and checked it and found four gunny bags
placed inside the vehicle. The police took the vehicle to the police station and when the gunny
bags were opened ten packets of charas were found concealed therein. The value of the said
contraband was estimated to be Rs. 5.29 lakhs.
When appellant/accused was questioned by the trial court under Section 313 of the Code of
Criminal Procedure he did not dispute the fact that he rode the autorickshaw and that the same
was intercepted by the police party and the gunny bags kept in the vehicle were taken out and
examined by them at the police station. His defence was that those four gunny bags were
brought in a truck at Chokha Bazar by two persons who unloaded them into his vehicle and
directed him to transport the same to the destination mentioned by them. He carried out the
assignment without knowing what were the contents of the load in the gunny bags.
Trial Court - The Trial Court acquitted the accused. But, State of Gujarat preferred an appeal
before the High Court.
High Court – The Division Bench of the High Court set aside the order of acquittal and
convicted the accused of the offences charged.
Supreme Court - The convicted accused filed SLP before this Court.
Issue – What would be effect of non-compliance of Section 42?
Arguments of appellant - He contended that there was non-compliance of Section 42 of the
Act which was enough to vitiate the search as a whole.
After referring Section 42 of the Act, Supreme Court held that
(1) Police Officer should have taken down the information in writing; and
(2) he should have sent forthwith a copy thereof to his immediate official superior.

65
Police officer admitted that he proceeded to the spot only on getting the information that
somebody was trying to transport a narcotic substance.
Compliance of Section 42 is mandatory. Finally, the court held that non-recording of the vital
information collected by the police at the first instance can be counted as a circumstance in
favour of the accused.
Remarks – In this case there were total failure of section 42 without any reason. Police officer
got information when he was in police station.
Amendment after Abdul Rashid Case
Abdul Rashid Case has been decided on 01.02.2000 but thereafter Section 42 has been
amended with effect from 02.10.2001 and the time of sending such report of the required
information has been specified to be within 72 hours of writing down the same. The relaxation
by the legislature is evidently only to uphold the object of the Act.
Sajan Abraham v. State of Kerala

Sajan Abraham was put on trial for an offence punishable under Section 21 of the Act. As per
the prosecution case, on 10.10.1993 at about 7.45 p.m. Sajan Abraham was in possession of a
manufactured drug by the name of “Tidigesic” and three syringes for injecting the same near
Blue Tronics Junction at Palluruthy.
The Head Constable and two other Constables of the Special Squad got information at about
7.00 p.m. on the said date that a person was selling injectable narcotic drugs near Blue Tronics
Junction at Palluruthy.
They informed this to Sub-Inspector of Police, Palluruthy Cusba Police Station, who was
coming in a jeep along with his police party.
Thereafter Sub-Inspector of Police along with his police party including The Head Constable
and other members of the Special Squad went to the scene of occurrence found the accused
standing on the road with a packet in his hand. He was identified by The Head Constable and
apprehended by Sub-Inspector of Police.
On search, the packet possessed by the appellant revealed that it contained 5 strips of 5
ampoules each of Tidigesic and three injection syringes and a purse containing currency note
of Rs. 10. At the spot, one ampoule was taken as a sample for chemical analysis and the said
contraband articles were seized as per Ext. P-1 and seizure mahazar was prepared at the spot.
The appellant was also arrested. The charge-sheet was submitted, the appellant pleaded not
guilty.
Trial Court – Trial Court acquitted him.
High Court – High Court convicted him.
Issue – Violation of Sections 42, 50 and 57.
Argument of appellant – (1) With regard to Section 42, the submission is that Sub-Inspector
of Police has not recorded the information given by The Head Constable with respect to the
appellant’s involvement before proceeding to arrest him in his case. This constitutes violation
of Section 42 of the Act.
(2) Submission is that Sub-Inspector of Police after receiving the said information has not
communicated it to his immediate superior which constitutes violation of Section 42.
Decision of Supreme Court – Supreme Court rejected these Arguments and conviction was
upheld.

66
Comparison between Abdul Rashid Case and Sajan Abraham Case
A careful examination of the facts in Abdul Rashid Case and Sajan Abraham Case shows that
the decisions revolved on the facts and do not really lay down different prepositions of law.
1. Abdul Rashid Case - In Abdul Rashid Case, there was total non-compliance with the
provision of section 42. The police officer
 neither took down the information as required under section 42(1)
 nor informed his immediate official superior, as required by Section 42(2).
It is in that context this Court expressed the view that it was imperative that the police officer
should take down the information and forthwith send a copy thereof to his immediate superior
officer and the action of the police officer on the basis of the unrecorded information would
become suspect though the trial may not be vitiated on that score alone.
2. Sajan Abraham Case - On the other hand, in Sajan Abraham, the facts were different. In
that case, it was very difficult, if not impossible for the Sub- Inspector of police
 to record in writing the information given by The Head Constable and
 send a copy thereof forthwith to his official superior, as the information was given to
him when he was on patrol duty while he was moving in a jeep and unless he acted on
the information immediately, the accused would have escaped.
The Sub-Inspector of Police therefore acted, without recording the information into writing,
but however, sent a copy of the FIR along with other records regarding arrest of the
accused immediately to his superior officer. It is in these circumstances that this Court held
that the omission to record in writing the information received was not a violation of
Section 42.
Comparison between Sections 42 & 43
The material difference between the provisions of Sections 42 and 43 is that Section 42
requires recording of reasons for belief and for taking down of information received in
writing with regard to the commission of an offence before conducting search and seizure,
Section 43 does not contain any such provision and as such while acting under Section 43 of
the Act, the empowered officer has the power of seizure of the article etc. and arrest of a
person who is found to be in possession of any narcotic drug or psychotropic substance in a
public place where such possession appears to him to be unlawful.
Section 50
(Safeguards for accused)
Section 50 prescribes the conditions under which search of a person shall be conducted. Sub-
section (1) provides that when the empowered officer is about to search any suspected person,
he shall, if the person to be searched so requires, take him to the nearest gazetted officer or the
Magistrate for the purpose. Under sub-section (2) it is laid down that if such request is made
by the suspected person, the officer who is to take the search, may detain the suspect until he
can be brought before such gazetted officer or the Magistrate. Sub-section (3) lays down that
when the person to be searched is brought before such a gazetted officer or the Magistrate and
such gazetted officer or the Magistrate finds that there are no reasonable grounds for search,
he shall forthwith discharge the person to be searched, otherwise, he shall direct that the search
be made. Sub-section (4) lays down that no female shall be searched by anyone excepting a
female.

67
Conclusion of Karnail Singh Case

Constitutional Bench decided referred question and returned so that pending case can be
decided. Ratios of the Constitutional Bench are following -
(a) When Police Officer is in the Police Station - The officer on receiving the information
(of the nature referred to in Sub-section (1) of section 42) from any person had to record it in
writing in the concerned Register and forthwith send a copy to his immediate official superior,
before proceeding to take action in terms of clauses (a) to (d) of section 42(1).
(b) When Police Officer is not in the Police Station –
 If the information was received when the officer was not in the police station,
 but while he was on the move either on patrol duty or otherwise, either by mobile phone,
or other means, and
 the information calls for immediate action and any delay would have resulted in the
goods or evidence being removed or destroyed,
 it would not be feasible or practical to take down in writing the information given to
him,
in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter,
as soon as it is practical, record the information in writing and forthwith inform the same to
the official superior .
Normal Circumstances Special Circumstances
The compliance with the requirements In special circumstances involving emergent
of Sections 42 (1) and 42(2) in regard to situations, the recording of the information
(a) writing down the information received in writing and sending a copy thereof to the
and official superior may get postponed by a
(b) sending a copy thereof to the superior reasonable period, that is after the search,
officer, entry and seizure. The question is one of
should normally precede the entry, search urgency and expediency.
and seizure by the officer.
Total Non-compliance Delayed Compliance
While total non-compliance of requirements Delayed compliance with satisfactory
of sub-sections (1) and (2) of section 42 is explanation about the delay will be
impermissible, acceptable compliance of section 42.
Example of Delayed Compliance

Justified Delay - To illustrate, if any delay may result in the accused escaping or the goods or
evidence being destroyed or removed, not recording in writing the information received, before
initiating action, or non-sending a copy of such information to the official superior forthwith,
may not be treated as violation of section 42.
Unjustified Delay –
1. If the information was received when the police officer was in the police station with
sufficient time to take action, and if the police officer fails to record in writing the
information received, or fails to send a copy thereof, to the official superior, then it will
be a suspicious circumstance being a clear violation of section 42 of the Act.
2. Similarly, where the police officer does not record the information at all, and does not
inform the official superior at all, then also it will be a clear violation of section 42 of
the Act.
Whether there is adequate or substantial compliance with section 42 or not is a question of fact
to be decided in each case. The above position got strengthened with the amendment to section
42 by Act 9 of 2001.

68
Vijaysinh Chandubha Jadeja & Another v. State of Gujarat & Other51
Summary -
Statute
Leading Cases
 The State of Punjab v. Baldev Singh (Constitutional Bench) (July 21, 1999).
 Joseph Fernandez v. State of Goa (Full Bench) (Oct.05, 1999)
 Prabha Shankar Dubey v. State of M.P. (Division Bench) (Dec. 02, 2003)
 Smt. Krishna Kanwar v. State of Rajasthan (Division Bench) (Jan. 27. 2004)
 Remarks–In all the above three cases, ratio of Baldev Case was discussed thoroughly.
 Vijaysinh Chandubha Jadeja v. State of Gujarat (Constitutional Bench)(Oct. 29, 2010)
 Arif Khan @ Agha Khan v. The State of Uttarakhand (Single Bench) (27 April, 2018)

Question 5 (b) – A police party was proceeding from Gokulpuri to Bhajanpura on patrol duty
in a jeep. On the way, they spotted T who was coming on foot carrying a plastic bag in his
hand. The Police Party apprehended T being suspicious of him. Immediately, Police Inspector
searched T without saying anything and recovered large quantity of opium from the bag. T was
arrested and put on trial where he took the defence of non-compliance of section 50 of NDPS
Act, 1985. Decide.
Answer –In this problem, several provisions & cases are involved. But at least
 Section 50, NDPS Act, 1985,
 The State of Punjab v. Baldev Singh (Constitutional Bench)
 Vijaysinh Chandubha Jadeja v. State of Gujarat (Constitutional Bench)
 Arif Khan @ Agha Khan v. The State of Uttarakhand
must be discussed thoroughly.
Baldev Singh & Jadeja cases were discussed on the basis of ‘Referred Orders’. In case of Arif
Khan @ Agha Khan v. The State of Uttarakhand, accused was acquitted on the basis of non-
compliance of Section 50.
Conclusion - T will be acquitted. Reason of this is non-compliance of Section 50 which
compliance were declared mandatory in above mentioned cases.
Introduction
The NDPS Act was enacted in the year 1985, with a view to consolidate and amend the law
relating to narcotic drugs, incorporating stringent provisions for control and regulation of
operations relating to narcotic drugs and psychotropic substances. In order to prevent abuse of
the provisions of the NDPS Act, which confer wide powers on the empowered officers, the
safeguards provided by the Legislature have to be observed strictly. Section 50 of the NDPS
Act prescribes the conditions under which personal search of a person is required to be
conducted. Sub-section (1) of the said Section provides that when the empowered officer is
about to search any suspected person, he shall, if the person to be searched so requires, take
him to the nearest gazetted officer or the Magistrate for the purpose.
51
This judgment is available at: https://main.sci.gov.in/judgment/judis/37060.pdf (Visited on September 30,
2020).

69
Section 50
Conditions under which search of

persons shall be conducted.
Original Clauses (1- 4) Inserted clauses in 2001 (5 & 6)
Section 50. Conditions under which search of persons shall be conducted.
(1) Duties of Authorised Officers to inform suspected accused -

 When any officer duly authorised under section 42
 is about to search any person under the provisions of section 41, section 42 or section
43,
 he shall, if such person so requires, take such person without unnecessary delay
 to nearest Gazetted Officer of any of the departments mentioned in section 4252 or to
the nearest Magistrate.
(2) Option used by suspected accused - If such requisition is made, the officer may detain the
person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-
section (1).
(3) Duties of The Gazetted Officer or the Magistrate - The Gazetted Officer or the
Magistrate before whom any such person is brought shall, if he sees no reasonable ground for
search, forthwith discharge the person but otherwise shall direct that search be made.
(4) Arrest of female by female - No female shall be searched by anyone excepting a female.
Inserted in 2001
(5) Relaxation in Clauses 1 to 3 & Search under Section 100 - When an officer duly
authorised under section 42 has reason to believe that it is not possible to take the person to be
searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to
be searched parting with possession of any narcotic drug or psychotropic substance, or
controlled substance or article or document, he may, instead of taking such person to the nearest
Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of
the Code of Criminal Procedure, 1973.
(6) Recording of reasons - After a search is conducted under sub-section (5), the officer shall
record the reasons for such belief which necessitated such search and within seventy-two hours
send a copy thereof to his immediate official superior.
Comparision
Section 50, NDPS Act Section 100 CrPC
Search before Search before two or more

Gagetted Officer or independent and respectable
Magistrate inhabitants of the locality
52
The departments of central excise, narcotics, customs, revenue intellegence or any other department of the
Central Government including para-military forces or armed forces as is empowered in this behalf by general or
special order by the Central Government,

70
Comment - Flexibility in procedural requirements in terms of the two newly inserted sub-
sections can be resorted to only in emergent and urgent situations, contemplated in the
provision, and not as a matter of course.
State of Punjab v. Baldev Singh

Facts- This case was decided by Constitutional Bench on July 21, 1999. In this case,
Constitutional Bench decided questions which have been referred to it. It means this case was
decided to clarify provisions regarding section 50, NDPS Act, 1985.
Ratio of Decision - On the basis of the reasoning and discussion, the following conclusions
were drawn by Supreme Court –
Duties of Authorised Police Officer to inform suspected person
1. That when an empowered officer or a duly authorised 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 gazetted officer or
the nearest Magistrate for making the search. However, such information may not
necessarily be in writing.
Effect of failure to inform & Produce
2. 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.
3. 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 the illicit
article suspect and vitiate the conviction and sentence of an accused, where the
conviction has been recorded ONLY on the basis of the possession of the illicit
article, recovered from his person, during a search conducted in violation of the
provisions of Section 50 of the Act.
Effect of 'Search' without
(1). prior information or (2). producing b4 authorised officer
May not vitiate trial
Recovery of illicit
Conviction
Articles
Vitiate - Conviction will vitiate Not vitiate - If conviction is

if it is based solely on illicit based on some independent
articles evidence and illicit articles
4. xxxxxxxxxxxxxxxxxxxx
How to decide observation of Section 50?
5. That whether or not the safeguards provided in Section 50 have been duly observed would
have to be determined by the court on the basis of the evidence led at the trial. Finding
on that issue, one way or the other, would be relevant for recording an order of conviction
or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that

71
the provisions of Section 50 and, particularly, the safeguards provided therein were duly
complied with, it would not be permissible to cut short a criminal trial.
Effect of Search in violation of Section 50
6. That in the context in which the protection has been incorporated in Section 50 for the
benefit of the person intended to be searched, we do not express any opinion whether the
provisions of Section 50 are mandatory or directory, but hold that failure to inform the
person concerned of his right as emanating from sub-section (1) of Section 50, may render
the recovery of the contraband suspect and the conviction and sentence of an accused
bad and unsustainable in law.
Section 50
Opinion was not given whether sec.

50 is mandatory or directory
Effect of violation of Section 50
Conviction and sentence of an

Recovery of the contraband suspect
accused bad and unsustainable in law.
It cannot be used as evidence of proof of

unlawful possession
7. That an illicit article seized from the person of an accused during search conducted in
violation of the safeguards provided in Section 50 of the Act cannot be used as evidence
of proof of unlawful possession of the contraband on 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.”
Joseph Fernandez v. State of Goa
(Full Bench)
A Bench of three Hon’ble Judges held that even when the searching officer informed him that
“if you wish you may be searched in the presence of a gazetted officer or a Magistrate”, it was
held that it was in substantial compliance with the requirement of Section 50 of the NDPS
Act, 1985. It is ‘Substantial Compliance’ of Section 50.
Prabha Shankar Dubey v. State of M.P.
The following information was conveyed to the accused: “By way of this notice, you are
informed that we have received information that you are illegally carrying opium with you,
therefore, we are required to search your scooter and you for this purpose. You would like to
give me search or you would like to be searched by a gazetted officer or by a Magistrate”.
It is ‘Substantial Compliance’ of Section 50.
Krishna Kanwar v. State of Rajasthan
“What is necessary is that the accused (suspect) should be made aware of the existence of his
right to be searched in the presence of one of the officers named in the section itself. Since no
specific mode or manner is prescribed or intended, the court has to see the substance and not
the form of intimation. Whether the requirement of Section 50 have been met is a question

72
which is to be decided on the facts of each case and there cannot be any sweeping
generalization and/or a straitjacket formula.
S. No. State of Punjab v. Baldev Singh State of Punjab v. Baldev Singh

1. Joseph Fernandez v. State of Goa Krishna Kanwar v. State of Rajasthan
(Full Bench)
2. Prabha Shankar Dubey v. State of M.P.
(2004)
3. Substantial compliance is sufficient. It is mandatory
Vijaysinh Chandubha Jadeja v. State of Gujarat

(Constitutional Bench) (Oct. 29, 2010)
Questions through ‘Reference’ before Constitutional Bench
1. Whether Section 50 of the NDPS Act, 1985 casts a duty on the empowered officer to
‘inform’ the suspect of his right to be searched in the presence of a Gazetted Officer or
a Magistrate, if he so desires? or
2. Whether a mere enquiry by the said officer as to whether the suspect would like to be
searched in the presence of a Magistrate or a Gazetted Officer can be said to be due
compliance with the mandate of the said Section?
Reasons of ‘Reference’ - When these appeals came up for consideration before a bench of
three Judges, it was noticed that there was a divergence of opinion between the decisions of
Supreme Court in the case of Joseph Fernandez v. State of Goa, Prabha Shankar Dubey v.
State of M.P. on the one hand and Krishna Kanwar v. State of Rajasthan on the other, with
regard to the dictum laid down by the Constitution Bench of this Court in State of Punjab v.
Baldev Singh, in particular regarding the question whether before conducting search, the
concerned police officer is merely required to ask the suspect whether he would like to be
produced before the Magistrate or a Gazetted Officer for the purpose of search or is the suspect
required to be made aware of the existence of his right in that behalf under the law.
Decision of Supreme Court

In this case Constitutional Bench observed following important points -
1. Summarisation of ratio of Baldev Singh Case - In this Case Supreme Court summarised
ratio of State of Punjab v. Baldev Singh in following words -
 “Although the Constitution Bench did not decide in absolute terms the question whether
or not Section 50 of the NDPS Act was directory or mandatory yet it was held that
provisions of sub-section (1) of Section 50 make it imperative for the empowered
officer to “inform” the person concerned (suspect) about the existence of his right that
if he so requires, he shall be searched before a gazetted officer or a Magistrate;
 failure to “inform” the suspect about the existence of his said right would cause
prejudice to him, 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 the illicit article suspect and
vitiate the conviction and sentence of an accused, where the conviction has been
recorded only on the basis of the possession of the illicit article, recovered from the

73
person during a search conducted in violation of the provisions of Section 50 of the

NDPS Act.
 The Court also noted that it was not necessary that the information required to be given
under Section 50 should be in a prescribed form or in writing but it was mandatory that
the suspect was made aware of the existence of his right to be searched before a gazetted
officer or a Magistrate, if so required by him.
We respectfully concur with these conclusions. Any other interpretation of the provision would
make the valuable right conferred on the suspect illusory and a farce”.
2. Objects of Section 50 – Supreme Court observed, “In view of the foregoing discussion,
we are of the firm opinion that the object with which right under Section 50(1) of the NDPS
Act, by way of a safeguard, has been conferred on the suspect, viz.
 to check the misuse of power,
 to avoid harm to innocent persons and
 to minimise the allegations of planting or
 foisting of false cases by the law enforcement agencies,
it would be imperative on the part of the empowered officer to apprise the person intended to
be searched of his right to be searched before a gazetted officer or a Magistrate.
3. Object of Clauses (5) & (6) – Clauses 5 & 6 are applicable only in exceptional cases.
Flexibility in procedural requirements in terms of the two newly inserted sub-sections can
be resorted to only in emergent and urgent situations, contemplated in the provision, and
not as a matter of course.
4. Rejection of Substantial Compliance – Supreme Court observed, “We are of the opinion
that the concept of “substantial compliance” with the requirement of Section 50 of the
NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez
(supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-
section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh’s
case”.
5. Presence before Magistrate is better option - Supreme Court observed, “We also feel
that though Section 50 gives an option to the empowered officer to take such person
(suspect) either before the nearest gazetted officer or the Magistrate but in order to impart
authenticity, transparency and creditworthiness to the entire proceedings, in the first
instance, an endeavour should be to produce the suspect before the nearest Magistrate, who
 enjoys more confidence of the common man compared to any other officer.
 It would not only add legitimacy to the search proceedings,
 it may verily strengthen the prosecution as well”.
6. Decision of compliance of Section 50 depends upon facts - Needless to add that the
question whether or not the procedure prescribed has been followed and the requirement
of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to
lay down any absolute formula in that behalf.
7. Section 50 is mandatory - The requirements of Section 50 of the NDPS Act are mandatory
and, therefore, the provisions of Section 50 must be strictly complied with.
Arif Khan @ Agha Khan v. The State of Uttarakhand

(Single Bench) (27 April, 2018)
In this case personal search was conducted after compliance of Section 50. In this case
searching Police Authorities conducted search after getting written consent. Other conditions
of Section 50 were not being fulfilled.

74

1. Settled law now - What is the true scope and object of Section 50 of the NDPS Act,
what are the duties, obligation and the powers conferred on the authorities
under Section 50 and whether the compliance of requirements of Section 50 are
mandatory or directory, remains no more res integra and are now settled by the two
decisions of the Constitution Bench of this Court in State of Punjab v. Baldev Singh and
Vijaysinh Chandubha Jadeja v. State of Gujarat.
2. Their Lordships have held in Vijaysinh Chandubha Jadeja Case that
 Section 50 is mandatory - the requirements of Section 50 of the NDPS Act are
mandatory and, therefore, the provisions of Section 50 must be strictly complied
with.
 Right to be informed by Police is mandatory - It is held that it is imperative on
the part of the Police Officer to apprise the person intended to be searched of his
right under Section 50 to be searched only before a Gazetted officer or a
Magistrate.
Since the non-compliance of the mandatory procedure prescribed under Section 50 of the
NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution
has failed to prove the compliance as required in law, the appellant is entitled to claim its benefit
to seek his acquittal.

75
Union of India v. Mohanlal & Anr.53

Question 1 (b) – Discuss the provisions relating procedure to be followed by the Central
Government and State Governments for disposal of seized drugs & psychotropic substances
under the NDPS Act, 1985 referring the law laid down in Union of India v. Mohanlal &
Another (2016) 3 (SCC) 379.
Answer –
Summary
Statute & Notifications
 Section 52A, NDPS Act, 1985 (Ins. in 1989 & amended in 2014)
 Notification No. 1/8954.
 Notification 2007
 Notification55 (January 16, 2015)
Leading Cases
 Union of India v. Mohanlal & Another56 (2012)
 Union of India v. Mohanlal & Another57 (2016)
Abstract
Section 52A was inserted in 1989 for disposal of seized drugs. Central Government by using
powers conferred under section 52A (1) issued certain notifications. These notifications were
issued in 1989, 2007 & 2015. The section & the notifications lay down complete procedure for
seizure, sampling, storing and disposal of seized drugs. Notification of 200758 contains three
annexures. These annexures deal format for writing of inventory, applications its reply.
Notification 2007
Application Reply
Annexure 1 Inventory of seized NDPS – Certificate by Magistrate –
Section 52A (2). Section 52A (3)
Annexure 2 Application for disposal of -do-
seized NDPS–Section 52A (2).
Annexure 3 Certificate of destruction Drugs Disposal Committee
Supreme Court decided Union of India v. Mohanlal & Another (2012) & Union of India v.
Mohanlal & Another (2016). Supreme Court discussed ground reality of disposal storing of
contrabands NDPS. In this case Supreme Court laid down guidelines for disposal of contraband
drugs. Hyderabad High Court issued Circular on 15/07/ 2019 and expressed un-satisfaction
regarding activities Magistrate empowered under Section 52A (3). Magistrates were certifying
53
(2016) 3 SCC 379.
54
This notification is available at: file:///C:/Users/abc/Downloads/e-nl-1989-18-19-e.pdf (Visited on October 6,
2020)
55
This notification is available at: https://dor.gov.in/sites/default/files/52a_0.pdf (Visited on October 6, 2020).
56
This judgment is available at: https://main.sci.gov.in/judgment/judis/39375.pdf (Visited on October 7, 2020)
57
58
Notification is available at: http://mahacid.com/NARCO-
notification%20dated%2010th%20May%202007.pdf (Last visited on October 9, 2020)

76
inventory without observing entirety of substances.59 In Circular High Court also observed that
Magistrates were acting in violation of ratio of violation of Union of India v. Mohanlal &
Another (2016) particularly paras 13 and 14.
Section 52A
Section 52A. Disposal of seized narcotic drugs and psychotropic substances –
Section 52A
Four Clauses
Power of Central Preparation of Duty of Primary

Govt. inventory & application Magistrate Evidence
to Magistrate to certify to certify
(1) How to dispose?

The Central Government may,
 having regard to the hazardous nature,
 vulnerability to theft, substitution,
 constraint of proper storage space or
 any other relevant consideration,
in respect of any
 narcotic drugs,
 psychotropic substances,
 controlled substances or
 conveyances,
by notification in the Official Gazette, specify such
 narcotic drugs,
 psychotropic substances,
 controlled substances or
 conveyance or
 class of narcotic drugs,
 class of psychotropic substances,
 class of controlled substances or conveyances,
which shall, as soon as may be after their seizure, be disposed of by such officer and in such
manner as that Government may, from time to time, determine after following the procedure
hereinafter specified.
(2) Preparation of inventory & certified by Magistrate -

 Where any narcotic drugs, psychotropic substances, controlled substances or
conveyances60 has been seized and forwarded
a. to the officer-in-charge of the nearest police station or
59
This circular is available at: http://tshc.gov.in/documents/admin_2_2019_09_23_12_26_14.pdf (Visited on
October 9, 2020).
60
Section 2 (viii) “conveyance” means a conveyance of any description whatsoever and includes any aircraft,
vehicle or vessel.

77
b. to the officer empowered under section 5361,

 the officer referred to in sub-section (1) shall prepare an inventory of such narcotic
drugs, psychotropic substances, controlled substances or conveyances
 Contents of inventory - containing such details relating to their
a. description,
b. quality,
c. quantity,
d. mode of packing,
e. marks,
f. numbers or
g. such other identifying particulars of the narcotic drugs, psychotropic
substances, controlled substances or conveyances or the packing in which they
are packed,
h. country of origin and
i. other particulars as the officer referred to in sub-section (1) may consider
relevant to the identity of the narcotic drugs, psychotropic substances,
controlled substances or conveyances in any proceedings under this Act and
 make an application, to any Magistrate for the purpose of -
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such magistrate, photographs of such drugs, substances
or conveyances and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the
presence of such magistrate and certifying the correctness of any list of samples so drawn.
(3) Duty of Magistrate - Where an application is made under sub-section (2), the Magistrate
shall, as soon as may be, allow the application.
(4) Primary Evidence - Notwithstanding anything contained in the Indian Evidence Act, 1872
or the Code of Criminal Procedure, 1973, every court trying an offence under this Act, shall
treat the innventory, the photographs of narcotic drugs, psychotropic substances, controlled
substances or conveyances and any list of samples drawn under sub-section (2) and certified
by the Magistrate, as primary evidence in respect of such offence.
Remarks - The process of drawing of samples has to be in the presence and under the
supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
61
Section 53. Power to invest officers of certain departments with powers of an officer-in-charge of a police
station. - (1) The Central Government, after consultation with the State Government, may, by notification
published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs,
revenue intelligence 2[or any other department of the Central Government including para-military forces or armed
forces] or any class of such officers with the powers of an officer-in-charge of a police station for the investigation
of the offences under this Act.
(2) The State Government may, by notification published in the Official Gazette, invest any officer of the
department of drugs control, revenue or excise 3[or any other department] or any class of such officers with the
powers of an officer-in-charge of a police station for the investigation of offences under this Act.

78
Union of India v. Mohanlal & Another62 (2012)
Facts –This case is related to seizure, sampling, safe keeping and disposal of the seized drugs.
In this Case Supreme Court discussed facts of this case.
Appeal from MP High Court - This appeal has been filed by the Union of India against the
judgment and order of the High Court of Madhya Pradesh whereby the High Court has
acquitted the respondents of the charges framed against them under Section 8/18(b) read with
Section 29 of the NDPS Act, 1985, primarily for the reason that no evidence regarding the
destruction of the 3.36 Kgs. of opium allegedly seized from the respondents had been
provided by the prosecution. In the absence of any evidence to show that the seized contraband
was destroyed as per the prevalent procedure, the contraband should have been, according to
the High Court, produced before the Trial Court. The failure of the prosecution to do so,
therefore, implies a failure to prove the seizure of the contraband from the possession of the
respondents.
Framing of Questions - Supreme Court discussed in brief and framed questions and notices
were issued to all States and Union Territory. Order was passed. Finally Supreme Court
discussed these guidelines thoroughly in case of Union of India v. Mohanlal & Another (2016).
Union of India v. Mohanlal & Another63 (2016)
This case is continuation of Union of India v. Mohanlal & Another (2012). In this case Supreme
Court discussed all responses with the help of ‘Tables’. Supreme Court discussed following
three issues –
 Seizure and sampling
 Their storage
 Their destruction
It is indeed unfortunate that even after a lapse of 26 years since Standing Order No. 1/89 was
issued, the Central Government or its agencies and the State Governments have paid little or
no attention to the need for providing adequate storage facilities of the kind stipulated in
Standing Order No. 1/89 with the necessary supervisory and other controls prescribed in
Section III of the said order.
Cumulative effect of the reports submitted by the States and the Central agencies is that only
16% of the contrabands seized between 2002 to 2012 have been actually disposed of. What
happened to the remaining 84% of such seizures is anybody’s guess and if it is still lying in the
police maalkhana, why has nobody ever bothered to apply for their disposal according to the
procedure established by law is hard to fathom.
The fact that the States and the Central Government agencies have accepted that no specific
register is maintained by the State Police and that general maalkhana register alone is being
maintained for the seized drugs shows the neglect of all concerned towards this important
62
63

79
aspect and the cavalier manner in which the issue regarding storage of ceased drugs is
approached by them.
Reason of Menace-
The menace of drugs in this country, as observed earlier has alarming dimensions and
proportions. Studies based on conferences and seminars have very often shown that the menace
is deep rooted not only because drug lords have the money power and transnational links but
also because the enforcement agencies like the Police and at times politicians in power help
them in carrying on what is known to be a money spinning and flourishing trade.
Guidelines for disposal of seized drugs

Supreme Court observed, “In order to avoid any confusion arising out of the continued presence
of notifications on the same subject we make it clear that disposal of Narcotic Drugs and
Psychotropic and controlled Substances and Conveyances shall be carried out in the following
manner till such time the Government prescribes a different procedure for the same:
S. No. Conditions Manners for disposal
1. B4 1989 &  Cases where the trial is Drugs Disposal Committees were
decided cases concluded and directed to dispose seized
 proceedings in contrabands without any further
appeal/revision have all verification, testing or sampling
concluded finally: whatsoever
2. After 1989  Drugs that are seized after The Drugs Disposal Committees
& decided May, 1989 and (DDCs) shall then take steps to have
cases  where the trial, appeal and such stock also destroyed under the
revision have also been finally direct supervision of the head of the
disposed of: Department concerned.
3. After 1989  Cases in which the The heads of the Department shall
& Pending proceedings are still pending ensure that appropriate applications
cases before the Courts at the level are moved by the officers
of trial court, appellate court competent to do so under
or before the Supreme Court Notification dated 16th January,
2015 before the DDCs.
(1) Cases where the trial is concluded and proceedings in appeal/revision have all
concluded finally:
 In cases that stood finally concluded at the trial, appeal, revision and further appeals, if
any, before 29th May, 1989 the continued storage of drugs and Narcotic Drugs and
Psychotropic and controlled Substances and Conveyances is of no consequence
a. not only because of the considerable lapse of time since the conclusion of the
proceedings
b. but also because the process of certification and disposal after verification and
testing may be an idle formality.
c. There is chance of theft replacement or pilferage at this distant point in time and
it is difficult to fix responsibility for such theft, replacement or pilferage

80
d. To the extent the seized Drugs continue to choke the storage facilities and tempt
the unscrupulous to indulge in pilferage and theft for sale or circulation in the
market, the disposal of the stocks will reduce the hazards that go with their
continued storage and availability in the market.
It would, therefore, be just and proper to direct that the Drugs Disposal Committees of the
States and the Central agencies shall take stock of all such seized contrabands and take steps
for their disposal without any further verification, testing or sampling whatsoever. The
concerned heads of the Department shall personally supervise the process of destruction of
drugs so identified for disposal.
(2) Drugs that are seized after May, 1989 and where the trial and appeal and revision
have also been finally disposed of:
In this category of cases while the seizure may have taken place after the introduction of Section
52A in the Statute book the non-disposal of the drugs over a long period of time would also
make it difficult to identify individuals who are responsible for pilferage, theft, replacement
or such other mischief in connection with such seized contraband.
Due to distant period of time and overloading maalkhanas and the so called godowns and
storage facilities, it is need of time to dispose immediately.
The DDCs shall take stock of all such Narcotic Drugs and Psychotropic and controlled
Substances and Conveyances in relation to which the trial of the accused persons has finally
concluded and the proceedings have attained finality at all levels in the judicial hierarchy. The
DDCs shall then take steps to have such stock also destroyed under the direct supervision of
the head of the Department concerned.
(3) Cases in which the proceedings are still pending before the Courts at the level of trial
court, appellate court or before the Supreme Court:
In such cases the heads of the Department concerned shall ensure that appropriate applications
are moved by the officers competent to do so under Notification dated 16th January, 2015
before the Drugs Disposal Committees concerned and steps for disposal of such Narcotic Drugs
and Psychotropic and controlled Substances and Conveyances taken without any further loss
of time.
Conclusion
To sum up we direct as under:
(1) Sampling - No sooner the seizure of any Narcotic Drugs and Psychotropic and controlled
Substances and Conveyances is effected, the same shall be forwarded to the officer in-charge
of the nearest police station or to the officer empowered under Section 53 of the Act. The
officer concerned shall then approach the Magistrate with an application under Section 52A
(ii) of the Act, which shall be allowed by the Magistrate as soon as may be required under Sub-
Section 3 of Section 52A. The sampling shall be done under the supervision of the magistrate
as discussed in paras 13 and 14 of this order.

81
Para 13.
The process of drawing of samples has to be in the presence and under the supervision of the
Magistrate and the entire exercise has to be certified by him to be correct. The question of
drawing of samples at the time of seizure which, more often than not, takes in the absence of
the Magistrate does not in the above scheme of things arise. This is so especially when
according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in
compliance with sub-section (2) and (3) of Section 52-A above constitute primary evidence for
the purpose of the trial.
Para14
There is in our opinion no manner of doubt that the seizure of the contraband must be followed
by an application for drawing of samples and certification as contemplated under the Act. We
hope and trust that the High Courts will keep a close watch on the performance of the
Magistrates in this regard and through the Magistrates on the agencies that are dealing with the
menace of drugs which has taken alarming dimensions in this country partly because of the
ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in
which the agencies and at times Magistracy in this country addresses a problem of such serious
dimensions.
(2) Arrangement for storage facilities within six months - The Central Government and its
agencies and so also the State Governments shall within six months from today take
appropriate steps to set up storage facilities for the exclusive storage of seized Narcotic Drugs
and Psychotropic and controlled Substances and Conveyances duly equipped with vaults and
double locking system to prevent theft, pilferage or replacement of the seized drugs.
(3) Storage facilities in each districts - The Central Government and the State Governments
shall be free to set up a storage facility for each district in the States and depending upon the
extent of seizure and store required, one storage facility for more than one districts.
(4) Disposal of the seized drugs - Disposal of the seized drugs currently lying in the police
maalkhans and other places used for storage shall be carried out by the DDCs.
(5) Direction for High Courts to appoint a Committee – Supreme Court said, “Keeping in
view the importance of the subject we request the Chief Justices of the High Courts concerned
to appoint a Committee of Judges on the administrative side to supervise and monitor progress
made by the respective States in regard to the compliance with the above directions and
wherever necessary, to issue appropriate directions for a speedy action on the administrative
and even on the judicial side in public interest wherever considered necessary.
List the appeal for final hearing now on an early date.
……………..The End……………

82
THE FOOD SAFETY AND STANDARDS ACT, 2006
SYLLABUS OF DU – LL.B
 The Food Safety and Standards Act, 2006.
 Definitions of ‘food’, ‘Adulterant’, ‘contaminant’, ‘food business’, ‘misbranded food’
 Food Safety and Standards Authorities of India & State Food Safety and Standards
Authorities: Establishment and functions
 Food Safety Officer- Power, Function and liabilities
 Food Analyst
 General Principles to be followed for food safety under the Act (Section 18)
 Licensing and Registration of food business (Section 31)
 Purchaser may have food analyzed (Section 40)
 Provisions related to offence and penalties (Sections 48 to 67)
 Adjudication and Appeal procedures (Sections 68 & 76)
Leading Cases
 M. Mohammed v. Union of India, (Madras High Court) W.A.No.1491 of 2014.
 M/S Nestle India Limited v. The Food Safety and Standards Authority of India,
(Bombay High Court) W. P (L) No. 1688 of 2015
 Swami Achyutanand Tirth and Ors. v. Union of India and Ors. (Supreme Court)
AIR 2016 SC 3626
 The Association of the Traders and Ors. v. Union of India
Constitution of India (Food & Nutrition)

 Article 21
 Article 39 (a)
 Article 47
 Concurrent List (List III) – Entry 18.
International Declaration/Convention
 UDHR, 1948 (Article 25)
 International Covenant on Economic, Social and Cultural Rights, 1966 (Article 11)
 Convention on the Rights of the Child, 1989 (Article 24).
Reports
 Law Commission of India, Report 264 (2017)64. This Report was submitted in the light
of Swami Achyutanand Tirth and Ors. v. Union of India and Ors.
 Summary of CAG
Indian Penal Code & LIC, Report 264
 Section 272
 Section 273
64
This Report is available at: http://lawcommissionofindia.nic.in/reports/Report264.pdf (Last visited on October
17, 2020).

83
PREVIOUS YEARS QUESTIONS PAPERS (DU –LL.B)
2015
Question 5 (a) – What are the principles to be followed for food safety under the Food Safety
and Standards Act, 2006?
Question 5 (b) – Define ‘food’. Whether it can be analysed by the purchaser?
Question 8 – Write short notes on any two
(a) – Food Safety and Standard Authority.
2017
Question 5 (a) – Discuss in detail the definition of ‘Food’ under the Food Safety and Standards
Act, 2006 in the context of decided cases.
Question 5 (b) – What are the duties and functions of Food Authority under the Food Safety
Question 8 – Attempt any two of the following:
(b) - The power, functions and liabilities of Food Safety Officer under the Food Safety and
Standards Act, 2006.
Unknown Year
Question 4 (a) – Discuss in detail the defininition of ‘mis-branded food’ and penalty for the
same under the Food Safety and Standards Act, 2006 in the context of decided cases.
Question 7 (b) – N was engaged in the business of import, processing and wholesale of raw
areca nut, commonaly called as ‘Betal Nuts’ in ungarbled form. N imported 700 bags of
Srilankan Betal Nuts as per ‘Bill of Entry’ dated 10-09-17. The concerned authorities passsed
an ‘Examination Order’ in which a direction was issued to obtain custom clearance for the
consignment, obtain a test report and a no objection certificate from Authorised Officer. N
objected to these directions. Decide.
Question 8 (a) – Explain the process of licensing and registration of food business under the
Food Safety and Standards Act, 2006.
Unknown Year
Question 2 (a) – Define ‘food’. What are the principles to be followed for food safety under
the Food Safety and Standards Act, 2006.
Question 5 (b) – Discuss the powers and functions of the Designated Officer under the Food
Safety and Standards Act, 2006.
Question 8 (a) – In the light of M/s Nestle India Limited v. The Food Safety and Standards
Authority of India, W.P. (L) No. 1688 of 2015 discuss the procedure of food analysis prescribed
by the Food Safety and Standards Act, 2006.
2019
Question 3 (b) Define ‘Food’under the Food Safety and Standards Act, 2006 in the light of
decide cases law.
Question 4 (b) What are the powers and liabilities of Food Safety Officer under the Food
Safety and Standards Act, 2006? Explain with relevant provisions.
Question 8 – Write short notes on
(a) Definition of ‘misbrand food’

84
Introduction
Article 47. Duty of the State to raise the level of nutrition

and the standard of living and to improve public health. -
The State shall regard the raising of the level of nutrition
and the standard of living of its people and the
improvement of public health as among its primary duties
and, in particular, the State shall endeavour to bring about
prohibition of the consumption except for medicinal
purposes of intoxicating drinks and of drugs which are
injurious to health.
October 16, is celebrated as ‘World Food Day’. Food Safety and Standards Act, 2006 was
published in Gazette on August 23, 2006. Its several provisions came into force on different
dates. So there is no any particular date of enforcement of the Act. It is applicable to whole
India including Union Territory of Jammu and Kashmir and Union Territory of Ladakh. The
Act contains 101 Sections and two Schedules. First Schedule related to Section 5 (1) (e). This
Schedule divides States and Union territories in five Zones. Second Schedule is related to
Section 97 which deals ‘Repeal & Saving’. This Schedule contains name of certain laws which
were repealed by FSS Act, 2006. By this seven orders and one Act were repealed. Name of the
repealed Act was The Prevention of Food Adulteration Act, 1954. By using powers conferred
under various provisions, Central Government issued Notification in Gazette. Name of the
Notification is Food Safety and Standards Rule, 2011.
Object
I. Preamble
II. Swami Achyutanand Tirth & Ors. v. Union of India & Ors.
III. Report 264 of Law Commission of India (December 2017).
(I) Preamble - Preamble of this Act denotes objects of the statute. These are
1. to consolidate the laws relating to food65,
2. to establish the Food Safety and Standards Authority of India for laying down science
based standards for articles of food and
3. to regulate their manufacture, storage, distribution, sale and import,
4. to ensure availability of safe and wholesome food for human consumption
(II) Swami Achyutanand Tirth & Ors. v. Union of India & Ors. - In the case of Swami
Achyutanand Tirth & Ors. v. Union of India & Ors.66 Hon’ble Supreme Court observed “Some
of the objectives of the Food Safety and Standards Act, 2006 are as follows:
1) To consolidate the laws relating to Food.
2) To establish Food Safety and Standards Authority of India for laying down science
based standards for articles of Food.
3) To regulate their manufacture, storage, distribution, sale and import.
4) To ensure availability of safe and wholesome food for human consumption.”
(III) Report 264 (Para 4.2) –
65
Earlier there were several laws related to food. Sometimes they conflicting to each other.
66
This judgment is related to adulteration of milk in several States. This Judgment is available at :
http://www.wbja.nic.in/wbja_adm/files/Directions%20given%20by%20Apex%20Court%20for%20proper%20i
mplementation%20of%20Food%20Safety%20and%20Standards%20Act,%202006_1.pdf (October 13, 2020).

85
 With the aim to consolidate all the previous existing laws, the Food Act was enacted
by Parliament which establishes a single reference point for all matters relating to food
safety and standards, by moving from multi- level, multi-departmental control to a
single line of command.
 To this effect, the Food Act establishes an independent statutory Authority – the Food
Safety and Standards Authority of India (Food Authority), which has been created for
laying down science based standards for articles of food and to regulate their
manufacture, storage, distribution, sale and import to ensure availability of safe and
wholesome food for human consumption.
Reasons of Enactment of FSS Act, 2006

Reason of enactment was thoroughly discussed in beautiful manner in LCI Report 264. I am
putting exact words of the Report -
“4.1 In our country, there were a number of pre-constitutional and post-constitutional laws,
orders, rules that aim at the protection of the consumer interests with special reference to
safeguard food safety and the health of the consumer. They were introduced to complement
and supplement each other in achieving total food safety and quality.
 However due to multiplicity in the specifications/standards in different Acts/Orders,
and administration by different Departments and agencies, there were implementation
problems and a lack of importance given to safety standards over a period of time.
 The food industries were facing problems as different products were governed by
different orders, rules and regulations in the Country which needed consolidation.
4.2 With the aim to consolidate all the previous existing laws, the Food Act was enacted by
Parliament which establishes a single reference point for all matters relating to food safety and
standards, by moving from multi- level, multi-departmental control to a single line of
command. To this effect, the Food Act establishes an independent statutory Authority – the
Food Safety and Standards Authority of India (Food Authority), which has been created for
laying down science based standards for articles of food and to regulate their manufacture,
storage, distribution, sale and import to ensure availability of safe and wholesome food for
human consumption.
Salient Features of the Act

The main features of the Bill (Later on Food Safety & Standards Act, 2006) as enumerated in
paragraph (5) and (6) of the Statement of Objects and Reasons are as follows:-
“5. The Bill, inter alia, incorporates the salient provisions of the Prevention of Food
Adulteration Act, 1954 (37 of 1954) and is based on international legislations, instrumentalities
and Codex Alimentaries Commission (which related to food safety norms). In a nutshell, the
Bill takes care of International practices and envisages on overarching policy framework and
provision of single window to guide and regulate persons engaged in manufacture, marketing,
processing, handling, transportation, import and sale of food. The main features of the Bill are:
(a) movement from multi-level and multi-departmental control to integrated line of command;
(b) integrated response to strategic issues like noval/genetically modified foods, international
trade;
(c) licensing for manufacture of food products, which is presently granted by the Central
Agencies under various Acts and Orders, would stand decentralized to the Commissioner of
Food Safety and his officer;

86
(d) single reference point for all matters relating to Food Safety and Standards, regulations and
enforcement;
(e) shift from mere regulatory regime to self compliance through Food Safety Management
Systems;
(f) responsibility on food business operators to ensure that food processed, manufactured,
imported or distributed is in compliance with the domestic food laws; and
(g) provision for graded penalties depending on the gravity of offence and accordingly, civil
penalties for minor offences and punishment for serious violations.
The above said Bill is contemporary, comprehensive and intends to ensure better consumer
safety through Food Safety Management Systems and setting standards based on science and
transparency as also to meet the dynamic requirements of Indian Food Trade and Industry and
International trade.”
Authorities
Food Authority (Food Safety & Standards
Authority of India) -Section 4
Commissioner of Food
Safety for each States &
UTs- Section 30
Designated Food Safety

Officer Officer Food Analyst
Secion 45

87
‘FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA’ (FSSAI)

2015
Question 5 (a) – What are the principles to be followed for food safety under the Food Safety
Answer – 18
Question 8 – Write short notes on any two
(a) – Food Safety and Standard Authority.
2017
Question 5 (b) – What are the duties and functions of Food Authority under the Food Safety
Answer – Section 16, FSS Act, 2006
ANSWER
Summary –
 Introdcution
 Object
 Establishment of FSSAI
 Duties & Functions
 Principles to be followed
 Conclusion
Introduction
FSSAI is highest body to implement provisions of FSS Act, 2006. It performs its works with
the help of other bodies and units. It is playing vital role to maitain quality of goods. There
shall be a Chief Executive Officer of the Food Authority (Section 9). The Chief Executive
Officer shall be the legal representative of the Food Authority (Section 10). Functions of The
Chief Executive Officer have been mentioned under Section 10. Sections 16 deals duties &
functions of food authority. Section 18 lays down certain principles which must be fulfilled at
the time of performing duties under this Act.
Objects
Preamble of the Act says that FSSAI would be constituted
 To lay down science based standards for articles of Food.
 To regulate their manufacture, storage, distribution, sale and import.
 To ensure availability of safe and wholesome food for human consumption

88
Establishment of FSSAI
FSSAI (1+22=23) Members
Chairperson (Appointment on
recommendation of Selecation Committee)
Ex officio Members Appointment on recommendation of

(7 Members) Selecation Committee (15 Members)
By FSS Act, 2006 ‘Food Safety and Standards Authority of India’ (FSSAI) was established 67.
It is statutory body which perform under Ministry of Health and Family Welfare.
Preamble of the Act says that this Act was enacted to establish Food Safety and Standards
Authority of India (FSSAI). According to Section 3 (m) “Food Authority” means the Food
Safety and Standards Authority of India established under section 4. According to Section 4,
Central Government shall, by notification, establish FSSAI. As per Section 5 of the FSS
Act, The Food Authority shall consist of a Chairperson and twenty-two members out of which
one-third shall be women.
Selection Committee – Members of FSSAI are appointed on the recommendation of Selection
Committee by Central Government. This Committee is constituted according to Section 6 of
FSS Act, 2006.
Bare Provisions
Preamble
An Act to consolidate the laws relating to food and to establish the Food Safety and Standards
Authority of India …….
Section 3(m)
“Food Authority” means the Food Safety and Standards Authority of India established under
section 4.
Section 4 - Establishment of Food Safety and Standards Authority of India.–
(1) The Central Government shall, by notification, establish a body to be known as the Food
Safety and Standards Authority of India to exercise the powers conferred on, and to perform
the functions assigned to, it under this Act.
(2) The Food Authority
 shall be a body corporate by the name aforesaid,
 having perpetual succession and
 a common seal with power to acquire, hold and dispose of property, both movable and
immovable, and to contract and shall, by the said name, sue or be sued.
(3) The head office of the Food Authority shall be at Delhi.
(4) The Food Authority may establish its offices at any other place in India.
Section 5. Composition of Food Authority and qualifications for appointment of its

Chairperson and other Members.–(1) The Food Authority shall consist of a Chairperson
and the following twenty-two members out of which one-third shall be women, namely:–
67
Details about this statutory body is available at: https://www.fssai.gov.in/ (Visited on October 12, 2020).

89
(a) seven Members, not below the rank of a Joint Secretary to the Government of India, to be
appointed by the Central Government, to respectively represent the Ministries or Departments
of the Central Government dealing with –
(i) Agriculture,
(ii) Commerce,
(iii) Consumer Affairs,
(iv) Food Processing,
(v) Health,
(vi) Legislative Affairs,
(vii) Small Scale Industries,
who shall be Members ex officio;
(b) two representatives from food industry of which one shall be from small scale industries;
(c) two representatives from consumer organisations;
(d) three eminent food technologists or scientists;
(e) five members to be appointed by rotation every three years, one each in seriatim from the
Zones as specified in the First Schedule to represent the States and the Union territories;
(f) two persons to represent farmers’ organisations;
(g) one person to represent retailers’ organisations.
(2) The Chairperson and other Members of the Food Authority shall be appointed in such a
manner so as to secure
 the highest standards of competence,
 broad range of relevant expertise, and shall represent,
 the broadest possible geographic distribution within the country.
(3) The Chairperson shall be appointed by the Central Government from amongst the persons
of eminence in the field of food science or from amongst the persons from the administration
who have been associated with the subject and is either holding or has held the position of not
below the rank of Secretary to the Government of India.
(4) The Chairperson and the Members including part-time Members other than the ex officio
Members of the Food Authority may be appointed by the Central Government on the
recommendations of the Selection Committee.
(5) The Chairperson of the Food Authority shall not hold any other office.
Current Authority Members

Table (Source)68
1 Ms Rita Teaotia Chairperson FSSAI
Chief Executive FSSAI. The Chief Executive Officer
Shri Arun Singhal,
Officer, Member shall be the legal representative of
IAS
Secretary – Section 9 the Food Authority (Section 10).
Appointed under clause (a) of sub-section (1) of Section 5 of the Act
Ministry of Agriculture, Deptt. of
1 Dr. B. Rajender Joint Secretary
Agriculture & Cooperation
Sh. Santosh Kumar Ministry of Commerce, Department
2 Joint Secretary
Sarangi of Commerce
Ministry of Consumer Affairs, Food
3 Sh. Amit Mehta Joint Secretary
and Public Distribution
68
https://www.fssai.gov.in/cms/food-authority.php

90
Ministry of Food Processing

4 Sh. Minhaj Alam Joint Secretary
Industries
Ministry of Health and Family
5 Sh. Sudhir Kumar Joint Secretary Welfare, Dept. of Health and Family
Welfare
Ministry of Law and Justice,
6 Dr. Reeta Vasishta Additional Secretary
Legislative Department
Ministry of Micro, Small and
7 Sh. Manoj Joshi Joint Secretary
Medium
No appointments have been made under other clauses of sub-section (1) of Section 5 of the
Act
DUTIES AND FUNCTIONS OF FOOD AUTHORITY

Section 16 of the FSS Act, 2006 deals duties and functions of Food Authority.
Section 16. Duties and functions of Food Authority.
(1) Regulation & Monitoring - It shall be the duty of the Food Authority to regulate and
monitor the manufacture, processing, distribution, sale and import of food so as to ensure safe
and wholesome food.
(2) Without prejudice to the provisions of sub-section (1), the Food Authority may by
regulations specify –
(a)
 the standards and guidelines in relation to articles of food and
 specifying an appropriate system for enforcing various standards notified under this
Act;
(b) the limits for use of
 food additives,
 crop contaminants,
 pesticide residues,
 residues of veterinary drugs,
 heavy metals,
 processing aids,
 myco-toxins,
 antibiotics and
 pharmacological active substances and
 irradiation of food;
(c) the mechanisms and guidelines for accreditation of certification bodies engaged in
certification of food safety management systems for food businesses;
(d) Import in India - the procedure and the enforcement of quality control in relation to any
article of food imported into India;
(e) Accreditation of laboratories - the procedure and guidelines for accreditation of
laboratories and notification of the accredited laboratories;
(f) Exchange information - the method of sampling, analysis and exchange of information
among enforcement authorities;
(g) Survey of enforcement - conduct survey of enforcement and administration of this Act in
the country;
(h) Food labelling - food labelling standards including claims on health, nutrition, special
dietary uses and food category systems for foods; and
91
(i) Risk - the manner in which and the procedure subject to which risk analysis, risk assessment,
risk communication and risk management shall be undertaken.
(3) The Food Authority shall also–

(a) Advice to Central & State Government - provide scientific advice and technical support to
the Central Government and the State Governments in matters of framing the policy and rules
in areas which have a direct or indirect bearing on food safety and nutrition;
(b) Scientific and technical data - search, collect, collate, analyse and summarise relevant
scientific and technical data particularly relating to–
(i) food consumption and the exposure of individuals to risks related to the consumption of
food;
(ii) incidence and prevalence of biological risk;
(iii) contaminants in food;
(iv) residues of various contaminants;
(v) identification of emerging risks; and
(vi) introduction of rapid alert system;
(c) Messages on the health and nutritional risks of food- promote, co-ordinate and issue
guidelines for the development of risk assessment methodologies and monitor and conduct and
forward messages on the health and nutritional risks of food to the Central Government, State
Governments and Commissioners of Food Safety;
(d) Assistance in implementation of crisis management and to draw up a general plan for
crisis management - provide scientific and technical advice and assistance to the Central
Government and the State Governments in implementation of crisis management procedures
with regard to food safety and to draw up a general plan for crisis management and work in
close co-operation with the crisis unit set up by the Central Government in this regard;
(e) Network of organisations - establish a system of network of organisations with the aim to
facilitate a scientific cooperation framework by the co-ordination of activities, the exchange of
information, the development and implementation of joint projects, the exchange of expertise
and best practices in the fields within the Food Authority’s responsibility;
(f) International organisations - provide scientific and technical assistance to the Central
Government and the State Governments for improving co-operation with international
organisations;
(g) Information to public, consumers, Panchayats etc. - take all such steps to ensure that
the public, consumers, interested parties and all levels of panchayats receive rapid, reliable,
objective and comprehensive information through appropriate methods and means;
(h) Training programmes - provide, whether within or outside their area, training
programmes in food safety and standards for persons who are or intend to become involved in
food businesses, whether as food business operators or employees or otherwise;
(i) Works assigned by Central Government - undertake any other task assigned to it by the
Central Government to carry out the objects of this Act;
(j) International technical standards - contribute to the development of international
technical standards for food, sanitary and phytosanitary standards;
(k) contribute, where relevant and appropriate to the development of agreement on recognition
of the equivalence of specific food related measures;
(l) promote co-ordination of work on food standards undertaken by international
governmental and non-governmental organisations;
(m) promote consistency between international technical standards and domestic food
standards while ensuring that the level of protection adopted in the country is not reduced; and
(n) promote general awareness as to food safety and food standards.
(4) The Food Authority shall make it public without undue delay–

92
(a) the opinions of the Scientific Committee and the Scientific Panel immediately after
adoption;
(b) the annual declarations of interest made by members of the Food Authority, the Chief
Executive Officer, members of the Advisory Committee and members of the Scientific
Committee and Scientific Panel, as well as the declarations of interest if any, made in relation
to items on the agendas of meetings;
(c) the results of its scientific studies; and
(d) the annual report of its activities.
(5) Directions to Commissioners - The Food Authority may, from time to time give such
directions, on matters relating to food safety and standards, to the Commissioner of Food
Safety, who shall be bound by such directions while exercising his powers under this Act.
(6) No disclosure of confidential information - The Food Authority shall not disclose or cause
to be disclosed to third parties confidential information that it receives for which confidential
treatment has been requested and has been acceded, except for information which must be made
public if circumstances so require, in order to protect public health.
Power of FSSAI
Central Advisory Committee - The Food Authority shall, by notification, establish a
Committee to be known as the Central Advisory Committee.69 Section 12 deals functions of
Central Advisory Committee.
Scientific Panels – Section 13 says that The Food Authority shall establish scientific panels,
which shall consist of independent scientific experts.
Food Safety and Standards Authority of India
(Establishment, duties & functions)
Central Government shall establish
FSSAI - Section 4
Selection
Committee -
Section 6
Food Authority (Food

Safety & Standards
Authority of India
Duties & Functions Principles to be

of FSSAI - Section followed by FSSAI -
16 Section 18
FSSAI will
establish CAC &
SP
Central Advisory Scientific

Committee (CAC) - Panels (SP) -
Sections 11 & 12 Section 13
69
Section 11.

93
Section 18
The Association of the Traders and Ors. v. Union of India70

(Date of Judgement – Sept.16, 2015)
In this Case Bombay High Court observed, “
 A perusal of Section 18 reveals that the foundation is preservation of human life and
health while protecting the consumer’s interest and by having fair practices in all kinds
of food and trade and maintenance of food safety and standards and practices. A
significant feature to be noted in this provision is that the entire endeavour is to take
care of the harmful effects of food on the basis of scientific studies and taking
appropriate measures to ensure availability of safe food for human consumption
 This provision is also of significance and reflects the legislative intent and the object
which is sought to be achieved at the hands of the Central Government and the State
Government and the other agencies under the Act. The principles are laid down in sub-
sections (1) and (2) of Section 18. This provision plays pivotal role in the
implementation of the Provisions of the Act, Rules and Regulations.
 The Parliament in exercise of its legislative powers as conferred in entry 18 of List III71
has enacted the FSS Act in the interest of Public Health and to safeguard the
constitutional guarantee to the citizens as conferred under the provisions of
Article 21 of the Constitution, from the perspective of human health and consumption
of food being a necessary concomitant of this fundamental right.
 It is clear that the authorities entrusted with the duty of implementing the Food Safety
Act, 2006 are not merely to perform the negative duty of preventing food adulteration,
but are required to play a very pro-active role for ensuring safe and wholesome food
and to prevent and eliminate risk to health caused by unsafe food. It is, therefore, clear
that Food Safety and Standards Act, 2006 is the comprehensive single special
legislation for all food products on the subject of safety and standards”.
M/S Nestle India Limited v. The Food Safety and Standards Authority of India
In this Case, Bombay High Court observed, “Sub-section (1) of section 18 enumerates the
guiding principles which are to be followed while implementing the provisions of the Act. Sub-
section (2) of section 18 lays down guiding principles which are to be kept in mind by the Food
Authority while framing regulations and specifying standards under the Act. This section
cannot be said to be a source of power since it only lays down the guidelines”.
Principles to be followed (Section 18)
Section 18 (Total Three

Clauses)
During During framing Non-application of

implementation regulations and specifying the Act in certain
(Clause 1) standards (Clause 2) cases (Clause)
70
This judgment is available at:
http://roundup.manupatra.in/trans/viewdoc.aspx?i=ptiDy4oUEz7W4RhahAaT6h93RFUeTV40hI1vo81W7g5uC
fRP5tL0pktJVchar(43)F5g3qk&id=zwKDa4S8QbBCBSkXPhUPwUGx0XQZUjQckuvzI6ju5aMEt1K/2d/LiOC
BSyG5XI1eRvqJNRizZp9YipiBGXHaJA== (Visited on October 16, 2020).
71
Concurrent List, Entry 18. Adulteration of foodstuffs and other goods.

94
Section 18. General principles to be followed in administration of Act.–

 The Central Government,
 the State Governments,
 the Food Authority and
 other agencies, as the case may be,
while implementing the provisions of this Act shall be guided by the following principles
namely:–
(1) (a) endeavour to achieve an appropriate level of
 protection of human life and health and
 the protection of consumer’s interests,
 including fair practices in all kinds of food trade with reference to food safety standards
and practices;
(b) carry out risk management which shall include taking into account the results of risk
assessment and other factors which in the opinion of the Food Authority are relevant to the
matter under consideration and where the conditions are relevant, in order to achieve the
general objectives of regulations;
(c) where in any specific circumstances, on the basis of assessment of available information,
the possibility of harmful effects on health is identified but scientific uncertainty persists,
provisional risk management measures necessary to ensure appropriate level of health
protection may be adopted, pending further scientific information for a more comprehensive
risk assessment;
(d) Proportionate Restriction - the measures adopted on the basis of clause (c) shall be
proportionate and no more restrictive of trade than is required to achieve appropriate level of
health protection, regard being had to technical and economic feasibility and other factors
regarded as reasonable and proper in the matter under consideration;
(e) Review of Measures - the measures adopted shall be reviewed within a reasonable period
of time, depending on the nature of the risk to life or health being identified and the type of
scientific information needed to clarify the scientific uncertainty and to conduct a more
comprehensive risk assessment;
(f) Duty of authority to inform public in case of food risk for health --in cases where there
are reasonable grounds to suspect that a food may present a risk for human health, then,
depending on the nature, seriousness and extent of that risk, the Food Authority and the
Commissioner of Food Safety shall take appropriate steps to inform the general public of the
nature of the risk to health, identifying to the fullest extent possible the food or type of food,
the risk that it may present, and the measures which are taken or about to be taken to prevent,
reduce or eliminate that risk; and
(g) Presumption in case of sub standards food - where any food which fails to comply with
food safety requirements is part of a batch, lot or consignment of food of the same class or
description, it shall be presumed until the contrary is proved, that all of the food in that batch,
lot or consignment fails to comply with those requirements.
(2) The Food Authority shall, while framing regulations or specifying standards under this
Act–
(a) take into account –
(i) prevalent practices and conditions in the country including agricultural practices
and handling, storage and transport conditions; and
(ii) international standards and practices, where international standards or practices
exist or are in the process of being formulated, unless it is of opinion that taking into account
of such prevalent practices and conditions or international standards or practices or any

95
particular part thereof would not be an effective or appropriate means for securing the
objectives of such regulations or where there is a scientific justification or where they would
result in a different level of protection from the one determined as appropriate in the country;
(b) determine food standards on the basis of risk analysis except where it is of opinion that
such analysis is not appropriate to the circumstances or the nature of the case;
(c) undertake risk assessment based on the available scientific evidence and in an
independent, objective and transparent manner;
(d) ensure that there is open and transparent public consultation, directly or through
representative bodies including all levels of panchayats, during the preparation, evaluation and
revision of regulations, except where it is of opinion that there is an urgency concerning food
safety or public health to make or amend the regulations in which case such consultation may
be dispensed with:
Provided that such regulations shall be in force for not more than six months;
(e) ensure protection of the interests of consumers and shall provide a basis for consumers to
make informed choices in relation to the foods they consume;
(f) ensure prevention of–
(i) fraudulent, deceptive or unfair trade practices which may mislead or harm the
consumer; and
(ii) unsafe or contaminated or sub-standard food.
(3) The provisions of this Act shall not apply to

 any farmer or
 fisherman or
 farming operations or
 crops or
 livestock or
 aquaculture, and
 supplies used or produced in farming or products of crops produced by a farmer at farm
level or a fisherman in his operations.
CAG Report Summary72
Implementation of Food Safety and Standards Act, 2006
The Comptroller and Auditor General of India (CAG) released an audit report on the
‘Implementation of Food Safety and Standards Act, 2006’ on December 19, 2017. In this report
some short coming were found. These are –
1. Failed to find out grey area - The FSSAI has been unable to identify areas for which
standards are yet to be formulated or revised.
2. Licenses on incomplete data - The CAG noted that licenses were issued on the basis
of incomplete documents in more than 50% of cases checked during the audit.
3. Entry of unsafe food in country - It also noted that FSSAI has failed to ensure that
the customs authorities do not let unsafe foods enter the country.
4. Laboratories- It found that 65 out of the 72 state food laboratories do not possess
National Accreditation Board for Testing and Calibration Laboratories accreditation.
5. Acute shortage of human resources - The Committee observed that the Ministry and
the FSSAI have failed to frame the recruitment regulations even after a decade of the
enactment of the Act. This has resulted in acute shortage of staff at various levels which
affects food safety measures across the states.
72
It is available at:
https://www.prsindia.org/sites/default/files/parliament_or_policy_pdfs/CAG%20Report%20Summary_FSSAI.p
df (Visited on October 13, 2020).

96

2017
(b) - The power, functions and liabilities of Food Safety Officer under the Food Safety and
Standards Act, 2006.
2019
Question 4 (b) What are the powers and liabilities of Food Safety Officer under the Food
Safety and Standards Act, 2006? Explain with relevant provisions.
Answer
Section 3(t)
According to Section 3 (t), “Food Safety Officer” means an officer appointed under section 37.
Section 37. Food Safety Officer.–
(1) The Commissioner of Food Safety shall, by notification, appoint such persons as he thinks
fit, having the qualifications prescribed by the Central Government, as Food Safety Officers
for such local areas as he may assign to them for the purpose of performing functions under
this Act and the rules and regulations made thereunder.
(2) The State Government may authorise any officer of the State Government having the
qualifications prescribed under sub-section (1) to perform the functions of a Food Safety
Officer within a specified jurisdiction.
Section 91 (2) (b)
According to Section 91 (2) (b), Central Government has power to make laws regarding
qualification of Food Safety Officers. By using this power, Central Government made Food
Safety and Standards Rules, 2011. Chapter 2, 2.1.3 of this this Rule deals qualification of Food
Safety Officer.
Food Safety and Standards Rules, 2011
Para 2.1.3 of Food Safety and Standards Rules, 2011 deals qualifications of Food Safety Officer
which are following -
Para2.1.3: Food Safety Officer

1. Qualification: Food Safety Officer shall be a whole time officer and shall, on the date on
which he is so appointed possesses the following:
(i) a degree in
 Food Technology or
 Dairy Technology or
 Biotechnology or
 Oil Technology or
 Agricultural Science or
 Veterinary Sciences or
 Bio-Chemistry or
 Microbiology or
 Masters Degree in Chemistry or degree in medicine from a recognized University, or
(ii) any other equivalent/recognized qualification notified by the Central Government,
Section 29. Authorities responsible for enforcement of Act-
Clause (4) - The Food Safety Officers shall enforce and execute within their area the provisions
of this Act with respect to which the duty is not imposed expressly or by necessary implication
on some other authority.
Clause (5) - The regulations under this Act shall specify which of the Food Safety Officers are
to enforce and execute.

97
Section 38. Powers of Food Safety Officer

(1) The Food Safety Officer may–
(a) take a sample –
(i) of any food, or any substance, which appears to him to be intended for sale, or to have been
sold for human consumption; or
(ii) of any article of food or substance which is found by him on or in any such premises;
which he has reason to believe that it may be required as evidence in proceedings under any of
the provisions of this Act or of the regulations or orders made thereunder; or
(b) seize any article of food which appears to the Food Safety Officer to be in contravention
of this Act or the regulations made thereunder; and
(c) keep it in the safe custody of the food business operator such article of food after taking a
sample;
and in both cases send the same for analysis to a Food Analyst for the local area within which
such sample has been taken:
Provided that where the Food Safety Officer keeps such article in the safe custody of the food
business operator, he may require the food business operator to execute a bond for a sum of
money equal to the value of such article with one or more sureties as the Food Safety Officer
deems fit and the food business operator shall execute the bond accordingly.
(2) The Food Safety Officer may enter and inspect any place where the article of food is
manufactured, or stored for sale, or stored for the manufacture of any other article of food, or
exposed or exhibited for sale and where any adulterant is manufactured or kept, and take
samples of such articles of food or adulterant for analysis.
(3) Where any sample is taken, its cost calculated at the rate at which the article is usually sold
to the public shall be paid to the person from whom it is taken.
(4) Where any article of food seized under clause (b) of sub-ection (1) is of a perishable nature
and the Food Safety Officer is satisfied that such article of food is so deteriorated that it is unfit
for human consumption, the Food Safety Officer may, after giving notice in writing to the food
business operator, cause the same to be destroyed.
(5) The Food Safety Officer shall, in exercising the powers of entry upon, and inspection of
any place under this section, follow, as far as may be, the provisions of the Code of Criminal
Procedure, 1973 (2 of 1974) relating to the search or inspection of a place by a police officer
executing a search warrant issued under that Code.
(6) Any adulterant found in the possession of a manufacturer or distributor of, or dealer in,
any article of food or in any of the premises occupied by him as such and for the possession of
which he is unable to account to the satisfaction of the Food Safety Officer and any books of
account or other documents found in his possession or control and which would be useful for,
or relevant to, any investigation or proceeding under this Act, may be seized by the Food Safety
Officer and a sample of such adulterant submitted for analysis to a Food Analyst:
Provided that no such books of account or other documents shall be seized by the Food Safety
Officer except with the previous approval of the authority to which he is subordinate.
(7) Where the Food Safety Officer takes any action under clause (a) of sub-section (1), or sub-
section (2), or sub-section (4) or sub-section (6), he shall, call one or more persons to be
present at the time when such action is taken and take his or their signatures.
(8) Where any books of account or other documents are seized under sub-section (6), the Food
Safety Officer shall, within a period not exceeding thirty days from the date of seizure, return
the same to the person from whom they were seized after copies thereof or extracts there from
as certified by that person in such manner as may be prescribed by the Central Government
have been taken:

98
Provided that where such person refuses to so certify and a prosecution has been instituted
against him under this Act, such books of account or other documents shall be returned to him
only after copies thereof and extracts there from as certified by the court have been taken.
(9) When any adulterant is seized under sub-section (6), the burden of proving that such
adulterant is not meant for purposes of adulteration shall be on the person from whose
possession such adulterant was seized.
(10) The Commissioner of Food Safety may from time to time issue guidelines with regard to
exercise of powers of the Food Safety Officer, which shall be binding:
Provided that the powers of such Food Safety Officer may also be revoked for a specified
period by the Commissioner of Food Safety.
Section 39. Liability of Food Safety Officer in certain cases

Any Food Safety Officer exercising powers under this Act or the rules and regulations made
thereunder who -
(a)vexatiously and without any reasonable ground seizes any article of food or adulterant; or
(b) commits any other act to the injury of any person without having reason to believe that such
act is necessary for the execution of his duty, shall be guilty of an offence under this Act and
shall be liable to a penalty which may extend to one lakh rupees:
Provided that in case any false complaint is made against a Food Safety Officer and it is proved
so, the complainant shall be guilty of an offence under this Act and shall be punishable with
fine which shall not be less than fifty thousand rupees but may extend to one lakh rupees.
Section 42. Procedure for launching prosecution.

(1) The Food Safety Officer shall be responsible for inspection of food business, drawing
samples and sending them to Food Analyst for analysis.
Unknown Year
Question 5 (b) – Discuss the powers and functions of the Designated Officer under the Food
Safety and Standards Act, 2006.
Answer
Section 3 (h) - “Designated Officer” means the officer appointed under section 36.
Section 29 (6)- The Commissioner of Food Safety and Designated Officer shall exercise the
same powers as are conferred on the Food Safety Officer and follow the same procedure
specified in this Act.
Section 36. Designated Officer
(1) The Commissioner of Food Safety shall, by order, appoint the Designated Officer, who
shall not be below the rank of a Sub-Divisional Officer, to be in-charge of food safety
administration in such area as may be specified by regulations.
(2) There shall be a Designated Officer for each district.
(3) The functions to be performed by the Designated Officer shall be as follows, namely:—
(a) to issue or cancel licence of food business operators;
(b) to prohibit the sale of any article of food which is in contravention of the provisions of this
Act and rules and regulations made thereunder;
(c) to receive report and samples of article of foods from Food Safety Officer under his
jurisdiction and get them analysed;
(d) to make recommendations to the Commissioner of Food Safety for sanction to launch
prosecutions in case of contraventions punishable with imprisonment;
(e) to sanction or launch prosecutions in cases of contraventions punishable with fine;
(f) to maintain record of all inspections made by Food Safety Officers and action taken by them
in the performance of their duties;

99
(g) to get investigated any complaint which may be made in writing in respect of any
contravention of the provisions of this Act and the rules and regulations made thereunder;
(h) to investigate any complaint which may be made in writing against the Food Safety Officer;
and
(i) to perform such other duties as may be entrusted by the Commissioner of Food Safety.
Food Safety & Standards Rules, 2011
2.1.2: Designated Officer

1. Qualification
(i) The Designated Officer shall be a whole time Officer, not below the rank of Sub-Divisional
Officer or equivalent and shall possess a minimum of bachelors’ degree in Science with
chemistry as one of the subjects or at least one of the educational qualifications prescribed for
the Food Safety Officer under these Rules.
(ii) He shall undergo training as may be specified by the Food Authority, within a period of six
months from the date of his appointment as Designated Officer.
(iii) (a) persons having been appointed as food Inspector having qualification prescribed under
the PFA Rules, 1955 or as Local Health Authority shall be eligible for appointment as
Designated Officer, subject to fulfilling such other conditions as may be prescribed for the post
of Designated Officer by the State Government.
(b) At the time of commencement of these rules, the post of designated Officer is held by any
other officer of equivalent rank as additional charge basis such other officer shall continue to
hold such additional charge till such time a whole time Designated Officer is appointed or for
a period of one year whichever is earlier.
2. Powers and duties:
(i) The powers and duties of the Designated Officer shall be as mentioned in section 36 (3) of
FSS Act, 2006.
(ii) The Designated officer shall function under overall supervision of collector/ District
Magistrate of the District.
(iii) The Designated Officer shall, in addition to the powers specified in Section 36 (3) of FSS
Act, 2006, also ensure the refund of fee for analysis paid by the purchaser as per the provision
of Section 40 (1), besides the cost of the sample
(iv) The Designated Officer shall ensure timely disposal of redundant samples, in the manner
notified for the seized materials, by the Commissioner of Food Safety.
(v) Without prejudice to anything contained in the aforesaid Rules, the Designated Officer shall
have all administrative powers which may include suspension, cancellation or revocation of
the license of the Food
Business Operator in case any threat or grave injury to public, has been noticed in the report of
the Food Analyst,
Provided that while taking such administrative action the procedure described in the Act and
Regulations shall be followed.

100

2015
2017
Question 5 (a) – Discuss in detail the definition of ‘Food’ under the Food Safety and
Standards Act, 2006 in the context of decided cases.
Unknown Year
Question 4 (a) – Discuss in detail the defininition of ‘mis-branded food’ and penalty for the
same under the Food Safety and Standards Act, 2006 in the context of decided cases.
Unknown Year
Question 2 (a) – Define ‘food’. What are the principles to be followed for food safety under
2019
Question 3 (b) Define ‘Food’under the Food Safety and Standards Act, 2006 in the light of
decide cases law.
Question 8 – Write short notes on
(a) Definition of ‘misbrand food’.

101
DU LL.B ( 2018)
Answer – This problem is based on ratios of M. Mohammed v. Union of India. N will not get
any remedy.
M. Mohammed v. Union of India

Summary
 Facts
 Issues
 Arguments of Appellant
 Arguments of Respondents
 Decision
 Ratios
 Conclusion
FACTS
In this case M. Mohammed imported ‘Betel Nut’ (Supari) (Areca Nut) from Sri Lanka.
Quantity of this was 50,942 kg on June 19, 2014. He submitted ‘Bill of Entry’ in Chennai on
the same date.
Subsequently, the Commissioner of Customs, Chennai on the same date passed an
‘Examination Order’ and by which, a direction was issued to M. Mohammed that in order to
obtain customs clearance for the consignment, it must obtain a test report and a No Objection
Certificate (NOC) from the Second Authorised Officer, Food Safety & Standards Authority of
India, Chennai. It was challenged by M. Mohammed through writ petition before Single Bench
of Madras High Court. In this case meaning of ‘Food’ was controversial.
Writ to Madras HC
Meaning of food u/ Prevention of

Food Adulteration Act, 1954 &
FSS Act, 2006 was interpreted
Single Division
Bench Bench
Writ was Decision of Single

dismissed Bench was approved
Single Bench – Single Bench observed,
 “The Areca Nut (Betel-Nuts) is an agriculture product include to fall within the
definition of primary food, and

102
 Such primary food is covered in the definition of food as contained in Section 3(j) of
 Definition of food given under Prevention of Food Adulteration Act, 1954 is different
from definition given under FSS Act, 2006.
 Writ Petition was dismissed.”
Division Bench – Intra Court Writ Appeal was filed. Before the Bench both parties presented
their arguments. Arguments of appellant were rejected & appeal was dismissed. In this way he
did not get any remedy from the Court.
ISSUES
In this case, there were following issues –
1. Whether ‘Ungarbled Betal Nut’ is Areca Nut (Betel Nut)?
Answer (Reply of Court) – Both are different. But both come in the definition of
‘Food’. ‘Ungarbled Betal Nut’ after processing becomes Areca Nut (Betel Nut).
Definition of ‘Food’ provided under section 3(j) talks about processed, partially
processed or unprocessed. So unprocessed ‘Ungarbled Betal Nut’ is ‘Food’.
Food
There is difference between
both. But both are 'Food'
Ungarbled Betel Nut (Raw Material) Betel Nut (Purified)
Unprocessed Processed
2. Is ‘Ungarbled Betel Nut’ come under definition of ‘Food’?
Answer – Yes. It comes under ‘Unprocessed Food’.
3. Is any difference between definitions of ‘Food’ defined under PFA Act, 1954 & FSS
Act, 2006?
Answer – Yes. Definition given under FSS Act, 2006 is wider.
4. Is ratio of Al Marwa Traders v. Assistant Commissioner of Imports (2007) applicable

in this case?
Answer –No. Reason of this is that case was decided regarding interpretation of word
‘Food’ as defined under Prevention of Food Adulteration Act, 1954.
5. Whether goods imported for which no prescription of standards are prescribed under
the FSS Act can be directed to be released if it is found that goods are contaminated or
unfit for human consumption or injurious to human life?
Answer- No. In the light of Centre for Public Interest Litigation Case, it can be
observed that it is constitutional duties to protect public health and life. In the light of
Nilabati Behera v. State of Orissa and Vishaka and others v. State of Rajasthan, it can
be observed that in absence of domestic law, international law may be followed.
Conclusion
‘Ungarbled Betel Nut’ is food. No remedy was granted. Appeal was dismissed.

103
DU LL.B
2015, 2017, 2018 & 2019
Question Define food.
Definition of Food –
FSS Act, 2006 –Section 3 (j) defines ‘Food’. There are three parts of this definition. First part
deals main contents, Second part includes substance into definition of food while Third part
excludes substance from the definition of food.
Section 3 (j)
(Part 1 - Main)
“Food” means any substance, whether
 processed,
 partially processed or
 unprocessed,
which is intended for human consumption and
(Second Part - Including )
includes
 primary food to the extent defined in clause (zk),
 genetically modified or engineered food or
 food containing such ingredients,
 infant food,
 packaged drinking water,
 alcoholic drink,
 chewing gum, and
 any substance, including water used into the food during its manufacture, preparation
or treatment
(Part 3- Excluding)
but does not include
 any animal feed,
 live animals unless they are prepared or processed for placing on the market for human
consumption,
 plants, prior to harvesting,
 drugs and medicinal products,
 cosmetics,
 narcotic or psychotropic substances.
Primary Food
Section 3 (zk) “primary food” means an article of food, being a produce of
 agriculture or
 horticulture or
 animal husbandry and
 dairying or
 aquaculture in its natural form, resulting from the growing, raising, cultivation, picking,
harvesting, collection or catching in the hands of a person other than a farmer or
fisherman.

104
Definition of
Food
Prevention of Food Safety &

Food Standards Act, 2006
Adulteration Act, [Section 3 (j)]
1954 [Sec. 2 (v)
Any substance
Processed Partially intended for human

Unprocessed consumption and
processed
includes primary food
2015
Answer – Definition of Food has already been discussed. According to Section 40, Purchaser
may make analyse food.
Section 40. Purchaser may have food analysed.–(1) Nothing contained in this Act shall be
held to prevent a purchaser of any article of food other than a Food Safety Officer from having
such article analysed by the Food Analyst on payment of such fees and receiving from the Food
Analyst a report of his analysis within such period as may be specified by regulations:
Provided that such purchaser shall inform the food business operator at the time of purchase of
his intention to have such article so analysed:
Provided further that if the report of the Food Analyst shows that the article of food is not in
compliance with the Act or the rules or regulations made thereunder, the purchaser shall be
entitled to get refund of the fees paid by him under this section.
(2) In case the Food Analyst finds the sample in contravention of the provisions of this Act and
rules and regulations made thereunder, the Food Analysts shall forward the report to the
Designated Officer to follow the procedure laid down in section 42 for prosecution.

105
M/s Nestle India Limited v. The Food Safety and Standards

Authority of India and Other
(Maggi Noodles Case) (Lead & MSG73 &74 Case)
Court – Bombay High Court

Division Bench –
 Hon’ble Justice V. M. Kanade &
 Hon’ble Justice B. P. Colabawalla
Date of judgment: 13/8/2015
Ordinary Original Civil Jurisdiction - Writ Petition (1688 0f 2015)
Facts –
 Nestle S.A of Switzerland is a Company which is registered and incorporated under the
Laws of Switzerland and is carrying on business of manufacture, sale and distribution
of food products. It was established in 1866. It is largest food company in world.
Petitioner - Company is its subsidiary in India and is registered under the provisions of
Companies Act, 1956. Petitioner is carrying on its business in India for more than 30
years.
 Sometime in the month of January, 2015, Food Inspector Barabanki, UP, became
suspicious, after he saw packet of Maggi Noodles on which it was claimed that there
was “No added MSG”. Since the Food Inspector became suspicious about the said
claim, he sent the packet to Food Laboratory viz. State Food Laboratory, Gorakhpur in
UP. The result of the analysis showed that there was MSG in the said product which
was found in the said packet.
 The Referral Laboratory at Calcutta which was supposed to test the result regarding
MSG found in the product also gave a report that the lead contained was 17 ppm which
was much higher than the permitted lead content of 2.5 ppm as per the Regulations.
 FSSAI banned sales of maggi noodles when samples were found to contain
‘Monosodium Glutamate (MSG), a flavour enhancer, and excessive levels of lead.75
 Samples were taken from three variants of the Maggi Noodles while nine variants of
the Maggi Noodles were banned.
73
Monosodium Glutamate (MSG) is flavor enhancer.
74
There are two types of MSG. These are natural and artificial. MSG is naturally found in tomatoes & cheese.
75
It is available at: https://economictimes.indiatimes.com/industry/cons-products/food/fssais-ban-on-maggi-
noodles-unreasonable-nestle-to-supreme-
court/articleshow/50505746.cms?utm_source%3Dwhatsapp_web%26utm_medium%3Dsocial%26utm_campaig
n%3Dsocialsharebuttons (Visited on October 23, 2020)

106
Chronology
1. January, 2015, Food Inspector Barabanki, UP, became suspicious, after he
saw packet of Maggi Noodles on which it was claimed that there was “No added
MSG”.
2. Test was conducted in laboratories of Gorakhpur and Calcutta. It was approved
that there were MSG and excessive lead.
3. On the basis of report, media started to raise questions regarding quality of
noodles. It created panic among public.
4. June 04, 2015 – Company publically announced that it had stopped its product.
It will start after getting clearance.
5. June 05, 2015 – Authority stopped sale of Maggi.
Reasons of Ban – There were mainly two reasons –
1. Excessive Lead – In the report excessive lead was found.
2. Misbrand - The product was misbranded since it was mentioned on the packet of the
product of the Petitioner that there was “No added MSG” and the “MSG” was found.
Arguments of Petitioners – Petitioner has challenged these impugned orders principally
on the following grounds:-
(i) Violation of Principle of Natural justice (PNJ) - It was contended that the said
two impugned orders have been passed in complete violation of principles of natural
justice since Respondent Nos. 2 and 3 had not issued any show cause notice to the
Petitioner and had not given any particulars on the basis of which they proposed to
pass the impugned orders. It was contended that Petitioner’s representatives were
called by Respondent No.2 at his Office on 05/06/2015 and they were informed
about the result of analysis made by the Food Laboratories and, thereafter, the
impugned order was passed. It was contended that the said order was completely
arbitrary, capricious and it was passed in undue haste.
(ii) Testing by unauthorised laboratories - It was contended that the reports of the
Food Laboratories on the basis of which the impugned order was passed were either
not accredited by NBAL or notified under section 43 of the Food Safety and
Standards Act, 2006 and even if some Food Laboratories were accredited, they did
not have accreditation for the purpose of testing lead in the product.
(iii) Test in own laboratories - The Petitioner contended that it had tested the samples
of batches in its own accredited laboratory and the results showed that the lead
contained in the product was well within the permissible limits.
(iv) Violation Articles 14 & 19 – Arbitrary order was passed. There was no need to ban
on all types of maggi.
Issues and its replies – There are following issues and its replies by the Court -
1. Is writ maintainable?
Answer of Court - Yes
2. Was there suppression of facts and destruction of evidence by petitioner?
Answer of Court –No
3. Whether Respondent No.2 could impose a ban on the ground that the lead found in the
product of the Petitioner was beyond what the Petitioner had represented (0.1ppm) in
its application for product approval, though it was below the maximum permissible
limit (2.5ppm) laid down under the Regulations?
Answer of Court – No

107
Petitioner’s claim Actual finding Law

0.1ppm 2ppm 2.5ppm
4. Was there violation of PNJ76?

Reply of Court – Yes. There was violation of PNJ. It was sufficient to set aside
impugned order.
The Food Authority should have given a proper opportunity to the Petitioner - Company
to prove that its product was safe for human consumption and it was not necessary to
impose a nationwide ban on the product, particularly when the Petitioner had already,
one day before the impugned order was passed, had given a press release, stating therein
that Petitioner was recalling its product from the market. In this particular case, there is
a clear violation of principles of natural justice and on that ground alone the impugned
orders are liable to be set aside. In this case there was violation of ‘Audi Alteram
Partem’.
5. What was source of power to pass impugned order? Whether such Orders could have
been passed under Sections 10 (5), 16 (1) (5), 18, 22, 26, 28, 29?
Reply of Court – The source of power under which the impugned orders were passed
is traceable to either section 30 or section 34 of the Act and, in any case, the impugned
Orders could not have been passed under Sections 10 (5), 16(1) (5), 18, 22, 28, and 29
of the Act.
6. Whether the analysis of the product manufactured by the Petitioner could have been
made in the Laboratories in which the said product was tested by the Food Authority
and whether these Laboratories are accredited Laboratories by the NABL and whether
the reports submitted by these Laboratories can be relied upon?
Reply of Court – No.
7. Whether reliance can be placed on the reports obtained by the Petitioner from its
Laboratory and other accredited Laboratories?
8. Whether the Food Analyst was entitled to WPL/1688/2015 test the samples in any
Laboratory, even if it was not accredited and recognized by the Food Authority?
9. Whether Respondent Nos. 2 to 4 were not justified in imposing the ban on all the 9
Variants of the Petitioner, though tests were conducted only in respect of 3 Variants
and whether such ban orders are arbitrary, unreasonable and violative of Article
14 and 19 of the Constitution of India?
Reply of Court – Yes. It is violation of Articles 14 and 19 of the Constitution of India.
Conclusion
High Court observed, “After examining the rival contentions in great detail, we have come to
the conclusion that –
(a) Violation of PNJ -Principles of natural justice have not been followed before passing the
impugned orders and on that ground alone the impugned orders are liable to be set aside,
particularly when the Petitioner - Company, one day prior to the impugned orders, had given a
Press Release that it had recalled the product till the authorities were satisfied about safety of
its product.
76
PNJ means ‘Principle of Natural Justice. There are three components of this principles namely (1) Audi
Alteram Partem , (2) Biasness (3) Writing of reason of decision.

108
It has been passed in utter violation of principles of natural justice since no material on the
basis of which the said order was passed was given to the Petitioner.
(b) Non-accredited laboratories - Secondly, we have held that the Food Laboratories where
the samples were tested were not accredited and recognized Laboratories as provided under the
Act and Regulations for testing presence of lead and therefore no reliance could be placed on
the said results.
(c) Violation of Section 47 - We have further held that the mandatory procedure which has to
be followed as per Section 47(1) of the Act and Regulations framed thereunder, was not
followed.
(d) Violation of Articles 14 & 19 - The impugned orders are held to be violative of Articles
14, 19(1)(g) of the Constitution of India.The procedure which was followed by Respondent
Nos. 1 to 4 was not fair and transparent. As observed by the Apex Court in Natural Resources
Allocation Case (Re: Special Reference No.1 Of 2012), the State action in order to escape the
wrath of Article 14 has to be fair, reasonable, non-discriminatory, transparent, non-capricious,
unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and
equitable treatment and State action must conform to norms which are rational, informed with
reasons and guided by public interest.
Final Order
Though, we have allowed the Petition and set aside the impugned orders, for the reasons
mentioned hereinabove, we are still concerned about public health and public interest and
therefore we are of the view that before allowing the Petitioner to manufacture and sell its
product, Petitioner should send the 5 samples of each batch which are in their possession to
three Food Laboratories accredited and recognized by NABL as per the provisions of section
3(p) and section 43 of the Act and which are as under:-
(1) Vimta Lab, Plot No.5, Alexandria Knowledge Park, Genome Valley, Shameerpet,
Hyderabad-500078, Andhra Pradesh.
(2) Punjab Biotechnology Incubator, Agri & Food Testing Laboratory, SCO:7-8, Top Floor,
Phase-5, SAS Nagar, Mohali-60 059.
(3) CEG Test House and Research Centre Private Limited, B-11(G), Malviya Industrial Area,
Jaipur-17.
These samples shall be tested and analysed by these three Laboratories. The sampling process
should be undertaken as per the provisions of section 47(1) and other relevant WPL/1688/2015
provisions of the Act and Regulations framed thereunder. If the results show that lead in these
samples is within the permissible limit then the Petitioner would be permitted to start its
manufacturing process. However, even newly manufactured products of all the other Variants
be tested in these three laboratories and if level of lead in these newly manufactured products
is also within the permissible limit then the Petitioner - Company may be permitted to sell its
products.
Beyond Judgment of Bombay High Court

 Judgment of Bombay High Court was challenged before Supreme Court. But Supreme
Court did not interfere in ratio of Bombay High Court.
 Products of Nestly (Maggi) passed in laboratory test.
 Now these products are in market.

109
Swami Achyutanand Tirth and Ors. v. Union of India and Ors77

(Adulteration of milk Case)
Court – Supreme Court

Full Bench-
 Hon’ble CJI T.S. Thakur
 Hon’ble Justice R. Bahumathi
 Hon’ble Justice U.U.Lalit
Date of Judgment – August 05. 2016.
Summary
 Facts
 Guidelines
Facts
A report dated 02.01.2011 titled “Executive Summary on National Survey on Milk
Adulteration, 2011” released by Foods Safety and Standards Authority of India (FSSAI) which
concluded that on a national level, 68.4 per cent of milk being sold is adulterated and it is
alleged that the worst performers in the survey were Bihar, Chhattisgarh, Odisha, West Bengal,
Mizoram, Jharkhand and Daman and Diu, where adulteration in milk was found up to 100%.
In the States of Uttarakhand and Uttar Pradesh 88% of milk samples were found adulterated.
Writ Petitions were filled in Supreme Court. The petitioners have relied on a report dated
02.01.2011 titled “Executive Summary on National Survey on Milk Adulteration, 2011”
The petitioners highlighted the menace of growing sales of adulterated and synthetic milk in
different parts of the country. The petitioners are residents of the State of Uttarakhand, Uttar
Pradesh, Rajasthan, Haryana and NCT of Delhi and have accordingly shown concern towards
the sale of adulterated milk in their States.
However, the issue of food safety being that of national importance, Union of India has also
been made a party-respondent. The petitioners allege that the concerned State Governments
and Union of India have failed to take effective measures for combating the adulteration of
milk with hazardous substance like urea, detergent, refined oil, caustic soda, etc. which
adversely affects the consumers’ health and seek appropriate direction.
Article 21
It is violation of fundamental rights of the petitioners and public at large guaranteed under
Article 21 of the Constitution of India.
Kinds of Milk
The Food Safety and Standards (Food Products, Standards and Food Additives) Regulations,
2011. Regulation 1.2 defines various categories of milk products
 “Boiled Milk”
 Double Toned Milk
 Flavoured Milk
 Full Cream Milk
 Milk
 Mixed Milk
 Recombined Milk
77
It is available at https://main.sci.gov.in/judgment/judis/43837.pdf (Visited on October 25, 2020)

110
 Skimmed Milk
 Standardised Milk
 Toned Milk
Provisions
Section 19 of the Act stipulates that no article of food shall contain any food additive or
processing aid unless it is in accordance with the provisions of the Act and regulations made
thereunder. Sections 50 to 65 of FSS Act deal with punishment for contravention of the
provisions. Section 272 & Section 273, IPC, 1860 deals about punishment of adulteration of
food.
Guidelines
Considering the seriousness of the matter and in the light of various orders passed by this Court,
the Writ Petition is disposed of with the following directions and observations:-
1. Implementation in more effective manners - Union of India and the State
Governments shall take appropriate steps to implement Food Safety and Standards Act,
2006 in a more effective manner.
2. Information for taking stringent actions - States shall take appropriate steps to
inform owners of dairy, dairy operators and retailers working in the State that if
chemical adulterants like pesticides, caustic soda and other chemicals are found in the
milk, then stringent action will be taken on the State Dairy Operators or retailers or all
the persons involved in the same.
3. Identification of high risk areas - State Food Safety Authority should also identify
high risk areas (where there is greater presence of petty food manufacturer/business
operator etc.) and times (near festivals etc.) when there is risk of ingesting adulterated
milk or milk products due to environmental and other factors and greater number of
food samples should be taken from those areas.
4. Adequate lab testing infrastructure accredited by NABL - State Food Safety
Authorities should also ensure that there is adequate lab testing infrastructure and
ensure that all labs have/obtain NABL accreditation to facilitate precise testing. State
Government to ensure that State food testing laboratories/district food laboratories are
well-equipped with the technical persons and testing facilities.
5. Spot testing of milk - Special measures should be undertaken by the State Food Safety
Authorities (SFSA) and District Authorities for sampling of milk and milk products,
including spot testing through Mobile Food Testing Vans equipped with primary testing
kits for conducting qualitative test of adulteration in food.
6. Snap short surveys should be conducted periodically - Since the snap short survey
conducted in 2011 revealed adulteration of milk by hazardous substances including
chemicals, such snap short surveys to be conducted periodically both in the State as
well as at the national level by FSSAI.
7. Constitution by State level Committee - For curbing milk adulteration, an appropriate
State level Committee headed by the Chief Secretary or the Secretary of Dairy
Department and District level Committee headed by the concerned District Collector
shall be constituted as is done in the State of Maharashtra to take the review of the work
done to curb the milk adulteration in the district and in the State by the authorities.
8. Setting up a website and awareness about the same - To prevent adulteration of milk,
the concerned State Department shall set up a website thereby specifying the
functioning and responsibilities of food safety authorities and also creating awareness
about complaint mechanisms. In the website, the contact details of the Joint
Commissioners including the Food Safety Commissioners shall be made available for

111
registering the complaints on the said website. States should also have and maintain toll
free telephonic and online complaint mechanism.
9. Making awareness among public - In order to increase consumer awareness about ill
effects of milk adulteration as stipulated in Section 18(1) (f) the States/Food
Authority/Commissioner of Food Safety shall inform the general public of the nature
of risk to health and create awareness of Food Safety and Standards. They should also
educate school children by conducting workshops and teaching them easy methods for
detection of common adulterants in food, keeping in mind indigenous technological
innovations (such as milk adulteration detection strips etc.)
10. Complaint mechanism for checking corruption - Union of India/State Governments
to evolve a complaint mechanism for checking corruption and other unethical practices
of the Food Authorities and their officers.
Report 264
Law Commission of India, Report 264 (2017)78. This Report was submitted in the light
of Swami Achyutanand Tirth and Ors. v. Union of India and Ors. In this Report,
recommendation was made to make amendment in Section 272 & Section 273 of IPC,
1860.
Unknown Year
Question 8 (a) – Explain the process of licensing and registration of food business under the
Food Safety and Standard Act, 2006.
Answer – Read Yourself. I got this question when I had started another topic.
………………………END………………………
78
This Report is available at: http://lawcommissionofindia.nic.in/reports/Report264.pdf (Last visited on October
17, 2020).

112
TOPIC 5: THE PREVENTION OF CORRUPTION ACT, 1988

Law Centre-1,
Faculty of Law, DU
Syllabus of DU LL.B
(1) Santhanam Committee Report

 Need of the Act (read with Santhanam Committee Report)
(2) The Prevention of Corruption Act, 198879

 Definitions of ‘public servant,’ Section 2 (c) and ‘gratification,’ Section 7.
 Offence committed by public servant and bribe giver and their Penalties (Sections 7 to
14)
 Punishment for attempts (Section 15)
 Sanction for prosecution (Section 19 r/w Section 197 of the Code of Criminal Procedure,
1973)
 Presumption where public servant accepts gratification (Section 20)
(3) Leading Cases mentioned in Syllabus

 Kalicharan Mahapatra v. State of Orissa, AIR 1998 SC 2595
 Kanwarjit Singh Kakkar v. State Of Punjab, (2011) 6 S.C.R. 895
 Abhay Singh Chautala v. C.B.I, (2011) 7 SCC 141
Beyond Your Syllabus
(1) The Prevention of Corruption (Amendment) Act, 2018
(2) Meaning of ‘Public Servants’ –

 M. Karunanidhi v. Union of India (1979) (SC)
 K. Veeraswami v. Union of India and Others (1991) (SC)
 P.V. Narasimha Rao v. State (CBI) (1998) (SC)
 Kalicharan Mahapatra v. State of Orissa (1998) (SC)
 CBI, Bank Securities & Fraud Cell v. Ramesh Gelli and Others (2016) (SC)
(3) Previous Sanction

 Manzoor Ali Khan v. Union of India (2014) (SC)
 Katti Nagaseshanna v. The State of Andhra Pradesh (2018) (Telangana HC).
79
https://www.indiacode.nic.in/bitstream/123456789/1558/1/A1988-49.pdf

113
DU LL.B. Previous Years Questions Papers

2015
Question 6 – What actions of a public servant amount to misconduct? Is it necessary to obtain
previous sanctions for prosecution under the Prevention of Corruption Act, 1988?
Question 8 (b) – Write short note –
Public Servant under Prevention of Corruption Act, 1988?
Unknown (May be 2016)
Question 5 (a) – Define ‘Public Servant’ and ‘Illegal Gratification’ under the Prevention of
Corruption Act, 1988.
Question 6 (b) - M was an M.P. in Lok Sabha from Karol Bagh constituency in Delhi. M had
earned money and property which were highly disproportionate from his known source of
income. An FIR has been lodged against M and he was put on trial. M raised objection of not
taking previous sanctions as he is a public servant representing South Delhi Lok Sabha
constituency. Decide.
Question 8 (b) – There was amassing of illicit wealth by former Chief Minister and various
former Ministers of a State in India. This money was of unprecedented amount, however, there
was no clear allegation of its laundering. But it led to investment in property, etc. The matter
was referred to the CBI for investigation which was opposed by the accused persons pleading
it to be the exclusive domain of the Enforcement Directorate. Decide.
2017
Question 6 (a) –Define ‘Public Servant’ under the Prevention of Corruption Act, 1988 with
special reference to decided cases?
Question 6 (b) – Sh. Rajender is working as a joint secretary in the Home Ministry. An FIR is
lodged against him by Sh. Sanjeev for taking bribe when he was working in the Finance
Ministry.
The Trial initiated on the basis of said FIR was opposed by Sh. Rajender for not taking previous
sanction from the Competent Authority. Decide.
2018
Question 3 (a) – What actions of a public servant amount to criminal misleading? Enumerate
the changes made in Section 19 of the amendment to the Prevention of Corruption Act, 1988.
Question 4 (a) – Define the boarder of ‘public servant’ and ‘illegal gratification’ with reference
to law laid down in Kalicharan Mahapatra v. State of Orissa, AIR 1998 SC 2595.
Question 4 (b) – Discuss the law laid down in Kanwarjit Singh Kakkar v. State of Punjab
(2011) 6SCC 895 referring to the Prevention of Corruption Act, 1988.
2019
Question 2(a) – What actions of a public servant amount to criminal misconduct under the
Prevention of Corruption Act, 1988? Discuss
Question 7 – A raid was conducted at the residence of police officer on 12.05.1990 and good
amount of cash and jewelry were recovered. The Charge-sheet under the Prevention of
Corruption Act, 1988 was submitted after the retirement of the accused police officer.
Whether sanction is required for the prosecution of the accused police officer? Discuss with
the relevant provisions and supporting cases.

114
INTRODUCTION
Summary
 Kautilya (Arthashastra)
 Indian Penal Code, 1860 (Chapter IX – Sections 161 to 171, Repealed Sections80
161 to 165A) and Section 40981
 Criminal Law (Amendment) Ordinance, 1944
 Prevention of Corruption Act, 1947
 Santhanam Committee Report (1962 to 1964)
 Prevention of Corruption Act, 1988
 Report 254th82 (The Prevention of Corruption (Amendment) Bill, 2013.
 Report 258th83 (“Prevention of Bribery of Foreign Public Officials and Officials
of Public International Organisations -A Study and Proposed Amendments”)
 The Prevention of Corruption (Amendment), Act 2018 and
 The Jammu and Kashmir Reorganisation Act, 2019
 The United Nations Convention Against Corruption, 2003 (“UNCAC”)
The problem of corruption is complex having roots and ramification in society as a whole. In
its widest connotation, corruption includes improper or selfish exercise of power and influence
attached to a public office or to the special position one occupies in public life.84
History - Corruption in one form other always existed. Kautilya in his Arthasastra refers to the
various form of corruptions prevalent in his times. During the British regime, IPC was enacted.
Some provisions of the Code clearly declaring corruption as a punishable offence. The first law
broadly dealing with corruption and the attachment of property was a pre-independence, war
time ordinance called the Criminal Law (Amendment) Ordinance, 1944 (Ordinance No.
XXXVIII of 1944).It was enacted under the Government of India Act, 1935 to prevent the
disposal or concealment of property procured by means of certain scheduled offences,
including offences under the Indian Penal Code of 1860.85 After Independence it was realized
to enact special law to combat this menace. The first direct and consolidated law on the subject
of corruption was the Prevention of Corruption Act, 1947, which was enacted in independent
India to supplement the provisions of the IPC. It was amended in 1952. Santhanam Committee
(1962 -1964) also recommended to amend this Act. So it was again amended in 1964. IPC and
PC Act, 1947 were not sufficient to combat menace of corruption. So PC Act, 1988 was
enacted.
80
Sections 161 to 165A were repealed by PC Act, 1988.
81
Section 409 – Criminal Breach of Trust by public servant, or by banker, merchant or agent.
82
This Report is available at:
https://lawcommissionofindia.nic.in/reports/Report_No.254_Prevention_of_Corruption.pdf (Visited on October
30, 2020).
83
This Report is available at: https://lawcommissionofindia.nic.in/reports/Report258.pdf (Visited on October 30,
2020).
84
Para 2.1, The Report of Santhanam Committee.
85
This information has been taken from Report No.254 of Law Commission of India. The Report is available at
https://lawcommissionofindia.nic.in/reports/Report_No.254_Prevention_of_Corruption.pdf (Last visited on
October 30, 2020).

115
Need of Enactment of PC Act, 1988 – There were several reasons of enactment of this Act.
These are –
1. Bofors Scam - On March 18, 1986, India signed Rs 1,437-crore deal with Swedish
arms manufacturer AB Bofors for the supply of 400 155 mm Howitzer guns for the
Army. A year later, on April 16, 1987, a Swedish radio channel alleged that the
company had bribed top Indian politicians and defence personnel to secure the
contract.86
2. Too Narrow PC Act, 1947 - The scope of the 1947 Act was considered too narrow and
the PC Act was enacted in 1988 to replace the 1947 Act and certain provisions in the
IPC dealing with corruption. It sought to, inter alia, widen the scope of the definition
of public servant; incorporate the offences under sections 161-165A of the IPC;
increase the penalties provided; and provide for day to day trial of cases.
3. Santhanam Committee – This Committee also suggested several amendment in
existing law. I have already discussed in detail.
4. Shri Ram Singh Case - In the case of State of Madhya Pradesh & Ors v. Shri Ram
Singh87 Hon’ble Supreme Court observed, “In the year 1988 a new Act on the subject
being Act No.49 of 1988 was enacted with the object of dealing with the circumstances,
contingencies and shortcomings which were noticed in the working and implementation
of 1947 Act”.
Brief of PC Act, 1988 - Prevention of Corruption Act, 1988 was enacted during regime of Mr.
Rajeev Gandhi. It came into force on September 9, 1988. Sections 161 to 165A, IPC which
were dealing corruption and related matters were repealed by Prevention of Corruption Act,
1988 by Section 31 of PC Act, 1988. The Prevention of Corruption Act, 1947 was also repealed
by Section 30 of Prevention of Corruption Act, 1988.
There were total 31 Sections in this Act. At present time there are total Section 30. Last section
was repealed in 2001. Earlier it was not applicable to Jammu and Kashmir. But after 2019
amendment, this Act is applicable to whole of India including Jammu and Kashmir. This Act
was also amended in 2018 by which some provisions were inserted including Section 29A.
Law Commission of India in its Report 254th88 and Report 258th89 recommended to amend PC
Act, 1988.
International Law
The United Nations Convention Against Corruption, 2003 (“UNCAC”) was introduced to
bring about clarity on the criminalisation of corrupt conduct that had a comparable impact for
all nations. As of today, 176 countries have signed and ratified the UNCAC and pledged to
incorporate its provisions into their domestic law. India is one such country.
Under Article 16 of the UNCAC, States Parties are required to penalise the offer and acceptance
of an undue advantage to, and by, a foreign public official or an official of a public international
organisation for acts and omissions that are contrary to his official duties. Currently India does
86
This information is available at: https://indianexpress.com/article/india/what-is-the-bofors-scandal-case-why-
is-it-being-opened-now-4823576/
87
Date of Judgment – February 1, 2000
88
https://lawcommissionofindia.nic.in/reports/Report_No.254_Prevention_of_Corruption.pdf (Visited on October
30, 2020).
89
This Report is available at: https://lawcommissionofindia.nic.in/reports/Report258.pdf (Visited on October 30,
2020).

116
not have domestic law in pursuance of Article 16. The Prevention of Corruption Act, 1988
(“PCA”) penalises the acceptance of bribes by domestic public officials, while the Prevention
of Money Laundering Act, 2002 (“PMLA”) criminalises the illegal flow of money through the
attachment and confiscation of property. Accordingly, a Group of Ministers felt it necessary to
enact a law on foreign bribery in order to comply with requirements of Article 16 of the
UNCAC. Pursuant to this, The Prevention of Bribery of Foreign Public Officials and Officials
of Public International Organisations Bill, 2011 (“the 2011 Bill”) was introduced in the Lok
Sabha on 25th March 2011.
The Ministry of Law and Justice has requested the 20th Law Commission of India (“the
Commission”) to give its views and recommendations on the text of the 2015 Bill.
Consequently, the Commission under the Chairmanship of Justice (Retd.) A.P. Shah has
decided to undertake the present study titled “Prevention of Bribery of Foreign Public Officials
and 4 Officials of Public International Organisations—A Study and Proposed Amendments”
to review the provisions of the 2015 Bill and recommend appropriate amendments.
Law Commission of India submitted its Report No.258 on “Prevention of Bribery of Foreign
Public Officials and Officials of Public International Organisations -A Study and Proposed
Amendments” in August 2015.90
Santhanam Committee
During debate in Parliament in June 1962, it was demand to Constitute Committee to

recommend mechanism to tackle menace of corruption. At that time Pt. Jawaharlal Nehru was
Prime Minister and Pt. Lal Bahadur Shashtri was Home Minister. The Home Minister assured
to Constitute such Committee. Pt. K. Santhanam was MP. Committee was constituted and Pt.
K. Santhanam was Chairperson of that Committee.
Report of the Committee on Prevention of Corruption91 was submitted in 1964. There were
following recommendation of the Committee -
 Cooling Period – There must be cooling period. It means Government employee should
not be allowed to join other services within 2 years from the date of retirement. That there
should be a complete ban against Government servants accepting private commercial and
industrial employment for two years after retirement92.
 In case of violation seize all benefit (Pension, PF) –recovery from a pension of the
whole or part of any pecuniary loss caused by negligence to the Central or State
Government should be done. Withholding or withdrawal of a pension or any part of it,
whether permanently or for a specified period for grave misconduct should also be done.
 Forced Retirement - If they found indulging in corruption, they must be forcefully
retired.
 Vigilance Machinery - There must be machinery to continue vigilance. Vigilance
Commission must be constituted at three level namely at the Central, State and District
level. The Central Vigilance Commission was set up by the Government in February,
1964 on the recommendations of the Committee on Prevention of Corruption, headed by
Shri K. Santhanam, to advise and guide Central Government agencies in the field of
90
This Report is available at https://lawcommissionofindia.nic.in/reports/Report258.pdf
91
https://cvc.gov.in/sites/default/files/scr_rpt_cvc.pdf
92
Para 6.16, Report of the Committee on Prevention of Corruption. The report is available at:
https://cvc.gov.in/sites/default/files/scr_rpt_cvc.pdf (Last visited on October 30, 2020)

117
vigilance.93 Central Vigilance Commission was granted ‘Statutory Status’ in 2003 by

enacting Central Vigilance Commission Act, 2003.
 Section 21, IPC must be amended – Section 21, IPC defines ‘Public Servant’. It should
be amended. Some more persons must be added in the definition of ‘Public Servant’. It
wider definition will cover more persons and it will be easy to prevent corruptions.
 Article 311 must be amended – Article 311 of the Constitution of India must also be
amended and protection available to Government Servants must be narrowed down.
Narrow protection will cause fear among public servants and they will hesitate to indulge
in corrupt practices.
OBJECTS OF THE PC ACT, 1988

Objective of the Act can be inferred with the help of name of the Act, Statement of objects and
reasons of the Act and judgment of Supreme Court –
(1) Name of the Act – Prevention of Corruption Act, 1988 itself denotes that main object of
the Act is to prevent corruption.
(2) Statement of objects and reasons for the enactment of the prevention of corruption
act, 1988 - The Statement of object and reasons for the enactment of the prevention of
corruption act, 1988 was discussed by Supreme Court in CBI, Bank Securities & Fraud Cell v.
Ramesh Gelli and Others.94 The Court observed, “From the Statement of Objects and Reasons
of the P.C. Bill it is clear that the Act was intended to make the anti-corruption law more
effective by widening its coverage. It is also clear that the Bill was introduced to widen the
scope of the definition of ‘public servant’”. These are following -
 The bill is intended to make the existing anti-corruption laws more effective by
widening their coverage and by strengthening the provisions.
 The bill, inter alia, envisages widening the scope of the definition of the expression
‘public servant’,
(3) Ram Singh Case - In State of M.P. v. Ram Singh95, the Supreme Court held that the object
of the Prevention of Corruption Act, 1988 was to make effective provisions for prevention of
bribe and corruption amongst public servants. It has been further held that it is a social
legislation to curb illegal activities of public servants and should be liberally construed so a
sto advance its object and not liberally in favour of the accused.
Meaning of Corruption
Meaning of corruption was discussed by Supreme Court in the case of Kanwarjit Singh Kakkar
and Anr. v. State of Punjab. I have discussed this case in subsequent pages.
93
This information is available at: https://cvc.gov.in/about/background (Last visited on October 30, 2020).
94
Infra….
95
Supra……( Date of Judgment – February 1, 2000)

118
DU LL.B. 2017
Question 6 (a) –Define ‘Public Servant’ under the Prevention of Corruption Act, 1988 with
special reference to decided cases?
Answer – Section 2 (c) of PC Act, 1988 and Section 21 of Indian Penal Code define ‘Public
Servants. PC Act, 1947 was also defining ‘Public Servant’. Definition of “Public Servant’
under PC Act, 1947 and PC act, 1988 is pari materia. There are several cases decided by
Hon’ble Supreme Court by which definition of public servants become clearer.
PUBLIC SERVANTS
Defintion of 'Public Servant'
Section 21 of IPC, 1860 Section 2 (c) PC Act, 1988
Section 21. “Public servant” - The words “public servant” denote a person falling under any
of the descriptions hereinafter following, namely:—
First - Omitted in 1950.
Second. - Every Commissioned Officer in the Military, Naval or Air Forces of India;
Third. Every Judge including any person empowered by law to discharge, whether by himself
or as a member of any body of persons, any adjudicatory functions;
Fourth.- Every officer of a Court of Justice (including a liquidator, receiver or commissioner)
whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to
make, authenticate, or keep any document, or to take charge or dispose of any property, or to
execute any judicial process, or to administer any oath, or to interpret, or to preserve order in
the Court, and every person specially authorised by a Court of Justice to perform any of such
duties;
Fifth. - Every juryman, assessor, or member of a panchayat assisting a Court of Justice or
public servant;
Sixth - Every arbitrator or other person to whom any cause or matter has been referred for
decision or report by any Court of Justice, or by any other competent public authority;
Seventh.- Every person who holds any office by virtue of which he is empowered to place or
keep any person in confinement;
Eighth.- Every officer of the Government whose duty it is, as such officer, to prevent offences,
to give information of offences, to bring offenders to justice, or to protect the public health,
safety or convenience;
Ninth.- Every officer whose duty it is as such officer, to take, receive, keep or expend any
property on behalf of the Government, or to make any survey, assessment or contract on behalf
of the Government, or to execute any revenue-process, or to investigate, or to report, on any
matter affecting the pecuniary interests of the Government, or to make, authenticate or keep
any document relating to the pecuniary interests of the Government, or to prevent the infraction
of any law for the protection of the pecuniary interests of the Government;
Tenth. -Every officer whose duty it is, as such officer, to take, receive, keep or expend any
property, to make any survey or assessment or to levy any rate or tax for any secular common
purpose of any village, town or district, or to make, authenticate or keep any document for the
ascertaining of the rights of the people of any village, town or district;
Eleventh. - Every person who holds any office in virtue of which he is empowered to prepare,
publish, maintain or revise an electoral roll or to conduct an election or part of an election;
Twelfth. -Every person -

119
(a) in the service or pay of the Government or remunerated by fees or commission for the
performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by or under a Central,
Provincial or State Act or a Government company as defined in section 617 of the Companies
Act, 1956 (1 of 1956).]
Illustration
A Municipal Commissioner is a public servant.
Explanation 1.—Persons falling under any of the above descriptions are public servants,
whether appointed by the Government or not.
Explanation 2.—Wherever the words “public servant” occur, they shall be understood of every
pers on who is in actual possession of the situation of a public servant, whatever legal defect
there may be in his right to hold that situation.
Explanation 3.—The word “election” denotes an election for the purpose of selecting members
of any legislative, municipal or other public authority, of whatever character, the method of
selection to which is by, or under, any law prescribed as by election.
Section 2 (c) - “Public Servant” means -

(i) any person in the service or pay of the Government or remunerated by the Government by
fees or commission for the performance of any public duty;
(ii) any person in the service or pay of a local authority;
(iii) any person in the service or pay of a corporation established by or under a Central,
Provincial or State Act, or an authority or a body owned or controlled or aided by the
Government or a Government company as defined in section 617 of the Companies Act, 1956;
(iv) any Judge, including any person empowered by law to discharge, whether by himself or
as a member of any body of persons, any adjudicatory functions;
(v) any person authorised by a court of justice to perform any duty, in connection with the
administration of justice, including a liquidator, receiver or commissioner appointed by such
court;
(vi) any arbitrator or other person to whom any cause or matter has been referred for decision
or report by a court of justice or by a competent public authority;
(vii) any person who holds an office by virtue of which he is empowered to prepare, publish,
maintain or revise an electoral roll or to conduct an election or part of an election;
(viii) any person who holds an office by virtue of which he is authorised or required to perform
any public duty;
(ix) any person who is the president, secretary or other office-bearer of a registered co-operative
society engaged in agriculture, industry, trade or banking, receiving or having received any
financial aid from the Central Government or a State Government or from any corporation
established by or under a Central, Provincial or State Act, or any authority or body owned or
controlled or aided by the Government or a Government company as defined in section 617 of
the Companies Act, 1956 (1 of 1956);
(x) any person who is a chairman, member or employee of any Service Commission or Board,
by whatever name called, or a member of any selection committee appointed by such
Commission or Board for the conduct of any examination or making any selection on behalf
of such Commission or Board;
(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader,
lecturer or any other teacher or employee, by whatever designation called, of any University
and any person whose services have been availed of by a University or any other public
authority in connection with holding or conducting examinations;
(xii) any person who is an office-bearer or an employee of an educational, scientific, social,

120
cultural or other institution, in whatever manner established, receiving or having received any
financial assistance from the Central Government or any State Government, or local or other
public authority.
Leading Cases
S. No. Leading cases Year Public Servants

1 M. Karunanidhi v. Union of India 1979 Chief Minister & Ministers
2 K. Veeraswami v. Union of India 1991 ‘Judge’ includes High Courts’
and Others Judges and Judges of Supreme Court
3 P.V. Narasimha Rao v. State (CBI) 1998 MPs and MLAs
4 Kalicharan Mahapatra v. State of 1998 ‘Definition of ‘Public Servant’ must
Orissa be counted at the time of work done
rather than at the time of trial.
Retired public servant will also
come under definition of ‘Public
Servant’.
5 CBI, Bank Securities & Fraud Cell 2016 Chairman, Directors and Officers of
v. Ramesh Gelli and Others – Private Banks are also ‘Public
Section 2 (b) & Section 2 (c) (viii), Servant’ under PC Act, 1988.
PC Act, 1988
Question 1- Is Chief Minister or Minister is ‘Public Servant’?

Answer – Yes. In the case of M. Karunanidhi v. Union of India96 Hon’ble Supreme Court
observed, “Chief Minister of State and Ministers are ‘Public Servants’. The Chief Minister or
a Minister is in the pay of the Government and is, therefore, a public servant within the meaning
of section 21 (12) of the Indian Penal Code.
Question 2– Whether Member of Parliament and Member of Legislative Assembly are
public servants?
Answer – Yes. In the case of P.V. Narasimha Rao v. State (CBI),97 Supreme Court concluded
following points -
1. No privilege in case of bribery - A Member of Parliament does not enjoy immunity

under Article 105(1) or under Article 105(3) of the Constitution from being prosecuted before
a criminal court for an offence involving offer or acceptance of bribe for the purpose of
speaking or by giving his vote in Parliament or in any committees thereof.
2. MP & MLA are ‘Public Servants’ - A member of Parliament is a public servant
under Section 2 (c) of the Prevention of Corruption Act, 1988.
3. Launching of Prosecution - Since there is no authority competent to remove a Member of
Parliament and to grant sanction for his prosecution under Section 19(1) of the Prevention of
Corruption Act, 1988, the court can take cognizance of the offences mentioned in Section
19(1) in the absence of sanction but till provision is made by Parliament in that regard by
suitable amendment in the law, the prosecuting agency, before filing a charge-sheet in respect
of an offence punishable under Section 7, 10, 11, 13, and 15 of the 1988 Act against a Member
96
Date of judgment – February 12, 1979.
97
Date of judgment – April 17, 1998

121
of Parliament in a criminal court, shall obtain the permission of the Chairman of the Rajya
Sabha/Speaker of the Lok Sabha, as the case may be.
Question 3– Whether the word ‘Judge’ includes High Courts’ Judges and Judges of
Supreme Court?
Answer – Yes. Section 21, Third, of IPC says that judges also come under definition of ‘Public
Servant’. According to Section 2 (c) (iv) of PC Act, 1988 judges also come under definition of
‘Public Servant’. In the PC Act, 1947 judges were also coming under definition of ‘Public
Servant’.
K. Veeraswami was former Chief Justice of High Court. In the case of K. Veeraswami v. Union
of India and Others98 Hon’ble Supreme Court observed that Judges of High Courts and
Supreme Court are public servants. Against them prosecution may be launched under
Prevention of Corruption Act after getting previous sanctions of President of India.
In order to protect the independence of judiciary, it was essential that no criminal case shall be
registered under Section 154 Cr.P.C. against a Judge of the High Court or of the Supreme Court
unless the Chief Justice of India is consulted and he assents to such an action being taken.
Question 4–Is retired public servant or ceased to be a public servant come within the purview
of definition of public servants?
Answer- Yes. It was observed by Supreme Court in the case of Kalicharan Mahapatra v. State
of Orissa (1998).
Question 5 - Whether the Chairman, Directors and Officers of Global Trust Bank Ltd. (a
private bank before its amalgamation with the Oriental Bank of Commerce), can be said to be
public servants for the purposes of their prosecution in respect of offences punishable under
Prevention of Corruption Act, 1988 or not ?
Answer- Yes. In the case of CBI, Bank Securities & Fraud Cell v. Ramesh Gelli and Others
(2016), Supreme Court answered positively.
Section 2(b) of P.C. Act, 1988 defines ‘public duty’. Under Clause (viii) contained in Section
2(c) of P.C. Act, 1988 a person who holds an office by virtue of which he is authorized or
required to perform any public duty, is a public servant.
.
Conclusion
Supreme Court concluded, “Keeping in mind the Statement of Objects and Reasons of the Bill
relating to Prevention of Corruption Act, 1988 read with Section 46A of Banking Regulation
Act, 1949, the accused Ramesh Gelli and Sridhar Subasri, who were Chairman/Managing
Director and Executive Director of GTB respectively, were public servants for the purposes of
Prevention of Corruption Act, 1988”.
Remark - This is landmark judgment to prevent fraud committed by private banks.
98
Date of Judgment – July 25, 1991.

122
Section 19 (Previous Sanctions for prosecution)

Question 1 – In which case Constitutional validity of Section 19 of PC Act, 1988 was
challenged on the grounds of violation of Section 14 of the Constitution of India?
Answer – In the Case of Manzoor Ali Khan v. Union of India99(2014) Section 19 was
challenged on the grounds that Central and State Governments were misusing section 19 to
protect corrupt officers and politicians. It was argued that Section 19 did not create reasonable
classifications.
In this Case Supreme Court said that Parliament has power to amend PC Act, 1988. Supreme
Court accepted constitutional validity. But it laid down guidelines. Among them, one guideline
was that decision for granting or non-granting sanction must be taken three months of the
receipt of the proposal by the authority concerned.
Section 19 after Amendment in 2018
Question 2 - Whether explanation to sub-section (1) of Section 19 of Prevention of Corruption
Act by Act 16 of 2018, which came into force on 26.07.2018 be given retrospective effect, if
so, whether the investigating agency is obligated with the duty to obtain sanction under Section
19 of Prevention of Corruption Act after retirement and failure to do so is sufficient to quash
the proceedings against the petitioner for the offence punishable under Section 13 (1) (e) read
with Section 13 (2) of Prevention of Corruption Act?
Answer – No. Amendment in 2018 is applicable with prospective effects. It was observed by
Telangana High Court in the case of Katti Nagaseshanna v. The State of Andhra Pradesh100 on
16 November, 2018. By this amendment it was clarified that sanction is necessary in all cases
including after retirement if offence is related to Sections 7, 11, 13 and 15 of Prevention of
Prevention of Corruption (Amendment) Act, 2018101
Major amendment in Prevention of Corruption Act, 1988 was done after 30 years in 2018. This
Amendment is very relevant and for this, Government led by revered Mr. Modi Ji should be
applauded. There are following salient features of this Amendment –
1. Some definitions were inserted - Section 2 (aa) [Prescribed] and Section 2 (d) [Undue
advantage] were inserted.
2. Time Limit trial – Section 4 was substituted. Hearing must be conducted day by day
and an endeavour shall be made to ensure that the said trial is concluded within a period
of two years:
Provided that where the trial is not concluded within the said period, the special Judge
shall record the reasons for not having done so: Provided further that the said period may
be extended by such further period, for reasons to be recorded in writing but not
exceeding six months at a time; so, however, that the said period together with such
extended period shall not exceed ordinarily four years in aggregate.’’
99
Date of judgment – August 06, 2014.
100
This judgment is available at: https://indiankanoon.org/doc/62259323/ (Visited on October 31, 2020).
101
Prevention of Corruption (Amendment) Act, 2018 is available at:
http://www.egazette.nic.in/writereaddata/2018/187644.pdf (Visited on November 1, 2020).

123
3. Bribe taking is punishable offence– Section 7 and Section 7A make taking bribery as
punishable.
4. Giving bribe is punishable except compulsory giving bribe - Section 8 makes giving
or promise to give bribery as punishable offence. The provisions of this section shall not
apply where a person is compelled to give such undue advantage. But condition is that
such person must report the matter to the law enforcement authority or investigating
agency within a period of seven days from the date of giving such undue advantage.
Illustration. A person, ‘P’ gives a public servant, ‘S’ an amount of ten thousand rupees
to ensure that he is granted a license, over all the other bidders. ‘P’ is guilty of an offence
under this sub-section.
5. Bribery given on behalf of ‘Commercial Organization’ – Section 9 deals about
responsibility of ‘Commercial Organizations’ when bribery had been given on behalf of
the ‘Commercial Organizations’.
6. Section 17A was inserted to protect public servant whose decision is related to
recommendation – No Enquiry or Inquiry or investigation of offences relatable to
recommendations made or decision taken by public servant in discharge of official
functions or duties except with previous sanctions Central Government or State
Government or competent authority as the case may be.
Provided that no such approval shall be necessary for cases involving arrest of a person
on the spot on the charge of accepting or attempting to accept any undue advantage for
himself or for any other person.
7. Amendment in Section 19 –By amendment wider protection has been given to working
as well as retired ‘Public Servants’ In section 19 of the Act, in sub-section (1), (i) for the
words and figures “sections 7, 10, 11, 13 and 15”, the words and figures “sections 7, 11,
13 and 15” shall be substituted;
(ii) in clause (a), for the words “who is employed”, the words “who is employed, or as the
case may be, was at the time of commission of the alleged offence employed” shall be
substituted; (iii) (iii) in clause (b), for the words “who is employed”, the words “who is
employed, or as the case may be, was at the time of commission of the alleged offence
employed” shall be substituted.
8. Section 29A (Central Government may make rule) –Section 29 A was inserted to
empower Central Government to make law.

124
2018
Question - Define the boarder of ‘public servant’ and ‘illegal gratification’ with reference to
law laid down in Kalicharan Mahapatra v. State of Orissa, AIR 1998 SC 2595.
Answer- ‘Illegal gratification’ was not discussed in in Kalicharan Mahapatra v. State of
Orissa. Even these words were not used single time.
2019
Question 7 –
 A raid was conducted at the residence of police officer on 12.05.1990 and good amount
of cash and jewelry were recovered.
 The Charge-sheet under the Prevention of Corruption Act, 1988 was submitted after
the retirement of the accused police officer.
Issue - Whether sanction is required for the prosecution of the accused police officer? Discuss
with the relevant provisions and supporting cases.
Answer - Crux - Answer of this question is based on the ratio of the decision of Kalicharan
Mahapatra v. State of Orissa (1998) & Prevention of Corruption (Amendment) Act, 2018.
Answer of this question regarding ‘sanction’ can be divided into two parts. These are –
(1)Kalicharan Case – On the basis of ratio of this case, previous sanction is not necessary.
(2) Prevention of Corruption (Amendment) Act, 2018 – After this Amendment, previous
sanction is necessary.
Two types of Important Points Statutes / Cases
Public Servants
(1) Acting Public All laws gives protection with express  PC Act, 1947,
Servant words.  PC Act, 1988,
[Previous Sanction is mandatory]  PC (A) Act 2018
 CrPC -1898
 CrPC 1973
(2) Retired Public Law related to this must be divided into Kalicharan Case –
Servants two parts to understand requirement of Previous sanction is not
‘Previous Sanction’. These are - necessary. PC (A) 2018,
(I) Laws are silent. previous section is
(II) Laws expressly gives protection. mandatory.
(I) Laws are silent.  PC Act, 1947
 PC Act, 1988
 CrPC -1898
(II) Laws expressly gives protection  PC (A) Act 2018
 CrPC 1973
Section 197 Section 19, Kalicharan Mahapatra v. Section 19, PC Act,

CrPC, 1973 PC Act, 1988 State of Orissa 1988 (After
Amendment in 2018)
…is or was… ..is..(Law is 1. PC Act, 1988 is applicable By this Amendment,
(Protection is silent. Neither to retired ‘public servants’ now position is very
available it includes nor also. clear. Protection is
during and excludes 2. There is no need to take available even to
after service). ‘retired public prior sanction from any retired ‘public
servant’) servants’

125
authority in case of retired

‘public servants’.
Kalicharan Mahapatra v. State of Orissa102
(Trial of retired public servants u/ PC Act, 1988)

Author of Judgment – Hon’ble Justice K.T.Thomas
Date of Judgment- August 04, 1998.
Summery-
 Facts
 Issues
 Arguments of appellant & Respondent
 Statutory provisions
(1). Section 2 (c), PC Act, 1988
(2). Section 13 (1) (e), PC Act, 1988
(3). Section 13(2), PC Act, 1988
(4). Section 6, PC Act, 1947 (Previous sanction)
(6). Section Section 197, CrPC, 1898 (Previous sanction)
(7). 41st Report of LCI103 (1969)
(8). Section 197, CrPC, 1973 (Previous sanction)
 Ratio
 Other Cases
(1) S.A. Venkataraman v. The State
(2) K. Veeraswami v. Union of India and Ors.
 Decision
 Conclusion
Facts
 Kalicharan was Superintendent of Police (SP) in the State Police Service, Orissa.
 May12, 1990 - Raid was conducted in the residence of him on 12-5-1990 and a good
amount of cash and jewellery were recovered from his residence.
 A case was registered against him under section 13(2) r/w Section 13(1) (e) of the
Prevention of Corruption Act, 1988.
 December 31, 1990 - On 31-12-1990 appellant retired from service but the
investigation into the case continued.
 September 30, 1992 - On 30-9-1992 the Vigilance Department submitted a charge-
sheet against the appellant for the offence under Section 13(2) read with Section 13(1)
(e) of the Act.
 The case was transferred to the Court of Special Judge, Bhubaneswar which was
established under the provisions of Orissa Special Courts Act, 1990.
Events Dates
102
This judgment is available at: https://main.sci.gov.in/judgment/judis/13116.pdf (Visited on November 5,
2020).
103
Para 15.123 https://lawcommissionofindia.nic.in/1-50/Report41.pdf (Visited on November 5, 2020).

126
Date of raid May12, 1990

Date of retirement December 31, 1990
Submission of Charge-sheet September 30, 1992
Special Court – Kalicharan challenged his trial under PC Act, 1988. His argument was rejected
by Special Court. He went to High Court.
High Court - High Court dismissed petition filed by Kalicharan. Appeal was preferred in
Supreme Court.
Supreme Court - Appeal of Kalicharan was also rejected by Supreme Court. Following issues
were discussed before the Court.
ISSUES
There are following issues before Supreme Court -
Issue (1) - Whether PC Act, 1988 is applicable to ‘Retired Public Servant’?
Answer - Yes
Issue (2) - Whether previous sanction under Section 19 is required to conduct trial against
‘Retired Public Servant’?
Answer- No.
Issue (3) - Whether PC Act, must be interpreted in the light of section 197CrPC, 1973?
Answer – No, both are different.
Arguments of Appellant
1. Non-application of Act, 1988 in case of retired public servants - The main
contention of the appellant was that the legislature did not include a retired public
servant within the purview of the Act and that there is no mention in the Act about a
person who ceased to be a public servant.
2. Section 2(c) does not include ‘retired public servant’ - “Public servant” is defined in
Section 2(c) of the Act. It does not include a person who ceased to be a public servant.
Chapter III of the Act which contains provisions for offences and penalties does not
point to any person who became a non-public servant.
3. Section 19 (1) (c) – Section 19 (1) deals previous sanction. There are three sub-clauses
of this clause namely (a), (b) & (c).
 Section 19 (1) (a) [who is] deals previous sanction granted by Central
Government.
 Section 19 (1) (b) [who is] deals previous sanction granted by State
Governments.
 Section 19 (1) (c) [in the case of any other person] deals previous sanction
granted by the authority competent to remove him from his office.
So this is case of retired officer. He is not in service. So neither sanction of Central Government
nor State Government is necessary. Regarding application of Section 19(1) (c), no one is in
position to remove him because he had already retired, so this section is also not applicable. It
is contended that he cannot be prosecuted for any offence under the Act.
4. Law has been changed after commencement of CrPC, 1973 – Section 197, CrPC
cover all types of ‘Public Servants’ including retired public servants by virtue of the
specific words in Section “any person who is or was......a public servant”.

127
5. CrPC and PC Act, 1988 - According to the appellant since such words (as used in
section 197, CrPC) have not been employed in any of the provisions of the PC Act,
1988, it could not be launched or continued against a person who, though was a public
servant at the time of commission of the offence, ceased to be so subsequently.
Argument of Respondent – Arguments of respondent was accepted by Supreme Court. So I
am not going to discuss it separately.
Statutory provisions
(1). Section 2 (c), PC Act, 1988

(2). Section 13 (1) (e), PC Act, 1988
(3). Section 13(2), PC Act, 1988
(7). 41st Report of LCI104 (1969)
(1) Section 2 (c), PC Act, 1988 – Section 2 (c) defines ‘Public Servant’. But it is silent
regarding ‘Retired Public Servant’.
(2) Section 13 – Section 13 (1) deals what is ‘criminal misconduct’ while Section 13 (2) deals
punishment for criminal misconduct.
(3) Section 6, PC Act, 1947 - Section 6 of PC Act, 1947 deals previous sanction required for
taking cognizance. This section is pari materia of section 19 of PC Act, 1988.
(4) Section 19, PC Act, 1988 - Section 19, PC Act, 1988 deals previous sanction required for
taking cognizance. This section is pari materia of section 6 of PC Act, 1947. Before 2018
amendment previous sanction was required to take cognizance of offence committed by public
servant which is punishable under sections 7,10,11,13, and 15 of PC Act, 1988. After
Amendment such previous sanctions are necessary under sections 7, 11, 13 and 15. Previous
sanctions is not required if offence has been committed by private person.
(5) Section 197, CrPC, 1898 (Previous sanction) – There was no protection for retired public
servants.
(6) 41st Report of Law Commission of India (1969) – In this Report, LCI suggested to give
protection even to retired public servant. In new Code, 1973, this recommendation was
accepted.
(7) Section 197, CrPC, 1973 – PC Act, 1988 is special law. It is not applicable to those
offences which come under IPC. Offences committed under IPC is governed under Code of
Criminal Procedure, 1973. Sections 195 to 199 imposes certain limitation over court from
taking cognizance. For example in certain cases previous sanctions are required. Section 196105
and Section 197106 CrPC deals requirement of previous sanction in certain case.
Grounds Old CrPC, 1898 New CrPC, 1973
104
Para 15.123: https://lawcommissionofindia.nic.in/1-50/Report41.pdf (visited on November 7, 2020)
105
Section 196. Prosecution for offences against the State and for criminal conspiracy to commit such offence
106
Section 197. Prosecution of Judges and public servants

128
Acting Public Servant There was protection for There is protection for
acting ‘public servants’ acting ‘public servants’
Retired Public Servants There was no protection for There is protection for
‘retired public servants’ ‘retired public servants’
Difference between PC Act, 1988 (Before 2018) & CrPC, 1973

(Previous Sanction)
PC Act, 1988 (Before 2018) CrPC, 1973

Section 19 was silent on retired public Section 197 clearly includes retired public
servants. servants also.
Difference between PC Act, 1988 (After 2018) & CrPC, 1973

(Previous Sanction)
PC Act, 1988 (After 2018) CrPC, 1973

After 2018 Amendment, Section 19 clearly Section 197 clearly includes retired public
includes retired public servants also. servants also.
Comparison
Ground PC Act, 1947 CrPC, 1973 PC Act, 1988 PC (Amend), 2018
Acting public Clear Clear Clear Clear protection
servants protection protection protection
Retired Public Silent Clear Silent Clear protection
Servants protection
Ratios
In this case Supreme Court laid down following ratios –
(1) PC Act is also applicable in case of retired servant – Supreme Court rejected the
argument that nowhere in this Act indicates regarding application of this Act over retired public
servants. Supreme Court observed that nowhere in this Act indicates that this Act will not be
applicable to retired public servants.
In this Case, Supreme Court observed, “There is no indication anywhere in the above
provisions that an offence committed by a public servant under the Act would vanish off from
penal liability at the moment he demits his office as public servant. His being a public servant
is necessary when he commits the offence in order to make him liable under the Act. He cannot
commit any such offence after he demits his office. If the interpretation now sought to be
placed by the appellant is accepted it would lead to the absurd position that any public servant
could commit the offences under the Act soon before retiring or demiting his office and thus
avert any prosecution for it or that when a public servant is prosecuted for an offence under
the Act he can secure an escape by protracting the trial till the date of superannuation”.
(2) Previous sanction in case of retired servant – Section 6 of PC Act, 1947 deals previous
sanction required for taking cognizance. This section is pari materia of section 19 of PC Act,
1988.

129
 Venkataraman Case -In the case of S.A. Venkataraman v. The State107 Hon’ble
Supreme Court held that section 6 (1), PC Act, 1947 did not require previous sanction
in case of retired officer.
 K. Veeraswami Case- The constitution Bench in K. Veeraswami v. Union of India and
Ors.108 upheld the view that no sanction is required to prosecute a public servant after
retirement.
 Kalicharan Case - In the Kalicharan Mohapatra v. State of Orissa, Hon’ble Supreme
Court repelled the argument that law has been changed after enactment Code of
Criminal Procedure, 1973. The Supreme Court observed, “A public servant who
committed an offence mentioned in the Act, while he was a public servant, can be
prosecuted with the sanction contemplated in Section 19 of the Act if he continues to
be a public servant when the court takes cognizance of the offence. But if he ceases to
be a public servant by that time, the court can take cognizance of the offence without
any such sanction.”
Conclusion of above Cases – No previous sanction is required in case of retired public
servants.
(3) PC Act, 1988 & CrPC, 1973 are different – It was observed that both law covers different
are. Parliament was circumspect (unwilling) to bring changes in PC Act, 1988 even after
knowing changes in CrPC, 1973.
Supreme Court observed, “
 The sanction contemplated in Section 197 of the Code concerns a public servant who
“is accused of any offence alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty”,
 whereas the offences contemplated in the P.C. Act are those which cannot be treated
as acts either directly or even purportedly done in the discharge of his official duties.
Parliament must have desired to maintain the distinction and hence the wording in the
corresponding provision in the former P.C. Act was materially imported in the new P.C. Act,
1988 without any change in spite of the change made in section 197 of the Code”.
Decision
Supreme Court - Decision of Special Court and High Court was upheld and appeal was
dismissed.
Conclusion
Ratio of decision of this case were cited in several cases. Ratio of this case has been overruled
by Prevention of Corruption (Amendment) Act, 2018.
Effect of Kalicharan Case (1998)

Example Akhilesh was public servant of Central Government
during 2000 to 2020. He committed corruption in 2018.
Trial in 2019 Previous sanction of Central Government is necessary
Trial in 2021 Previous sanction of Central Government is not
necessary.
Effect of PC (Amendment) 2018
107
1958 SCR 1040.
108
1991(3) SCC 655.

130
Example Akhilesh was public servant of Central Government

during 2000 to 2020. He committed corruption in 2018.
Trial in 2019 Previous sanction of Central Government is necessary
Trial in 2021 Previous sanction of Central Government is necessary.
2018
Question 4 (b) – Discuss the law laid down in Kanwarjit Singh Kakkar v. State of Punjab
(2011) 6SCC 895 referring to the Prevention of Corruption Act, 1988.
Answer -
Kanwarjit Singh Kakkar and Anr. v. State of Punjab.109
(Medical Practice in evening) (Quashing of the FIR) (Meaning of corruption & its
examples)
Summary
 Facts
 Issues
 Statutory Provisions
 Prevention of Corruption Act, 1988 [Section13(1)(d) r/w Section 13(2)]
 Indian Penal Code, 1860 [Section 168]
 The Punjab Civil Services (Punishment and Appeal) Rules
 The Punjab Civil Medical (State Service Class I) Rules, 1972
 Leading Cases
 Gujarat v. Maheshkumar Dheerajlal Thakkar.
 Raj Rajendra Singh Seth v. State of Jharkhand and Anr.110
 Ratios
 Decision.
Bench – Division Bench
Judges – Hon’ble Justices (1) Gyan Sudha Misra (2) Markandey Katju
Date of Judgment – April 28, 2011
Appeal – Special Leave Petition.
Important Dates Important Facts

April 09, 2003 Lodging of FIR under
 Section13(1)(d) r/w Section 13(2) of the Prevention of
Corruption Act,1988 and
 Section 168 of the IPC, 1860
April 02, 2009 High Court passed an order and no relief was granted
April 28, 2011 Decision of Supreme Court
FACTS
 Dr. Rajinder Singh Chawla (Appellant) [Employee of State Government of Punjab]
109
2020)
110
(2008) 11 SCC 681

131
 Dr. Kanwarjit Singh Kakkar (Appellant) [Employee of State Government of Punjab]

 Raman Kumar (Complainant) [On the basis of his complaint, appellants were trapped
and FIRs were registered.
 Allegation – Private practice in evening by Doctors in Ludhiana.
 FIR u/ Section 13 (1) (d) r/w Section 13 (2) of PC Act, 1988 & Section 168 IPC.
Dr. Rajinder Singh Chawla & Dr. Kanwarjit Singh Kakkar were Medical Officers working
with the State Government of Punjab. Raman Kumar alleged that the appellants were taking
charges for giving service which was violation of their service rule. Both were posted in
Ludhiana District.
It was alleged that both the doctors were doing private practice in the evening at Metro Road,
Jamalpur and charged Rs.100/- in cash per patient as prescription fee.
While Dr. Rajinder Singh Chawla checked the blood pressure of the patients and Dr.
Kanwarjit Singh issued prescription slips and medicines to the patients after checking them
properly.
The complainant Raman Kumar got medicines from the two doctors regarding his ailment and
the doctor had charged Rs.100/- as professional fee from him. Raman Kumar made complaint.
In view of this allegation, a raid was conducted at the premises of both these doctors and it was
alleged that they could be nabbed doing private practice as they were trapped receiving
Rs.100/- as consultation charges from the complainant.
On the basis of this, the FIR was registered against the appellants under Section 13(1) (d) r/w
Section 13(2) of the Prevention of Corruption Act, 1988 and under Section 168, IPC which has
registered at Police Station Vigilance Bureau, Ludhiana.
ISSUES
Issues –
1. Whether a government doctor alleged to be doing practice can be booked within the
ambit and purview of Section 13 (1) (d) r/w Section 13 (2) The Prevention of
Corruption Act?
Answer- No.
2. Whether a government doctor alleged to be doing practice can be booked under Section
168, The Indian Penal Code, 1860?
Answer – No.
3. Whether a government doctor alleged to be doing practice would amount to misconduct
under the Punjab Civil Medical (State Service Class I) Rules, 1972?
Answer – Yes.
Arguments of Appellants –
1. No medical instruments at residence - It was submitted that neither any medical
instrument was recovered nor any apparatus or blood pressure checking machine or
even thermometer was recovered from the residence of the appellants.
2. Medical treatments on humanitarian grounds - It was explained that the
complainant had come to the house of Dr. Kanwarjit Singh Kakkar which was under
renovation and requested for treatment. It was added that on humanitarian grounds, the
appellant just scribbled down the prescription on a plain paper which does not even
bear the signature of the appellant.

132
3. Proceeding and the punishment under the Punjab Civil Services (Punishment and
Appeal) Rules – In the alternative, it was contended that even if there is a deviation
from these rules prohibiting private practice by government doctors contrary to the
government instructions, it could warrant initiation of departmental proceeding and the
punishment under the Punjab Civil Services (Punishment and Appeal) Rules and not
under IPC much less under the Prevention of Corruption Act.
4. Private practice with permission of State Government - It was again submitted by
the counsel for the appellants that it is the ‘departmental rules’ which bar private
practice by a government doctor, hence action if any, is liable to be initiated/taken under
the departmental rules which in the present case are the Punjab Civil Services
(Punishment and Appeal) Rules. Rule 15 of the Punjab Civil Medical (State Service
Class I) Rules, 1972 states that a government doctor may engage in practice with prior
permission from the government.
5. Section 13 (1) (d) - It was submitted that the demand/receipt of ‘fee’ while doing
private practice is not an illegal gratification for official duties. It was further submitted
that even Section 13(1) (d) of the Prevention of Corruption Act does not apply.
6. Section 168, IPC - this Section makes it amply clear that ‘private practice’ cannot be
termed as ‘trade’, as accepting of ‘fee’, does not involve profit making which is an
essential ingredient of the term ‘trade’ as held in State of Gujarat v. Maheshkumar
Dheerajlal Thakkar.
7. The counsel further took assistance from the Punjab Government Vigilance Department
( Vigilance -3 Branch) which vide Memo No. 53/168/02-54/20094dated 23.12.2004
(T) instructed the Chief Director, Vigilance Bureau, Punjab, Chandigarh on 19.1.2005,
that the cases pending against the government teachers for holding tuition classes
should be withdrawn as these cases do not come within the purview of the Prevention
of Corruption Act as fees demanded/accepted by a teacher in view of teaching private
tuition classes can neither be termed as a corruption nor can it be said to be a demand
for remuneration for some official act.
Statutory Provision
(I) Rule 15 of the Rule - “Rule 15. Private Practice:
(1) Granting permission - The Government may, by general or special order, permit
any member of the Service to engage in private practice on such terms and conditions
and subject to such restrictions and limitations as may be specified in the order,
provided that such practice does not in any way interfere with the discharge of his or
their official duties.
(2) Withdrawing permission - Nothing contained herein shall be construed to limit or
abridge the power of the Government at any time to withdraw such permission or to
modify the terms on which it is granted without assigning any cause and without
payment of compensation.”
(2) Section 13 (1) (d), PC Act, 1988- The main ingredients of this Section are:
a. the accused must be a public servant at the time of the offence;
b. he must have used corrupt or illegal means and obtain for himself or for any other
person any valuable or pecuniary advantage; or

133
c. he must have abused his position as a public servant and have obtained for himself
and for any other person any valuable thing or pecuniary advantage; or
d. while holding such office he must have obtained for any other person any valuable
thing or pecuniary advantage without any motive.
(3) Section168, IPC. Public servant unlawfully engaging in trade.- Whoever, being a public
servant and being legally bound as such public servant not to engage in trade, engages in trade,
shall be punished with simple imprisonment for a term which may extend to one year, or with
fine, or with both.”
Ratios of the Case
In this case, following ratios can be drawn from the judgment –
1. Meaning of corruption - On a critical analysis of the arguments advanced in the light
of the definition of ‘corruption’ defined under the Prevention of Corruption Act, in its
Preamble and under Section 7 of the Act, it clearly emerges that ‘corruption’ is
acceptance or demand of illegal gratification for doing an official act. We find no
difficulty in accepting the submission and endorsing the view that the demand/receipt
of fee while doing private practice by itself cannot be held to be an illegal gratification
as the same obviously is the amount charged towards professional remuneration.
2. Examples of corruption-
 What is not corruption? It would be preposterous111 in our view to hold that if a doctor
charges fee for extending medical help and is doing that by way of his professional
duty, the same would amount to illegal gratification as that would be even against the
plain common sense.
 What is corruption? If however, for the sake of assumption, it were alleged that the
doctor while doing private practice as Government doctor indulged in malpractice in
any manner as for instance
(i). took money by way of illegal gratification for admitting the patients in the
government hospital or
(ii). any other offence of criminal nature like prescribing unnecessary surgery for
the purpose of extracting money by way of professional fee and a host of other
circumstances,
the same obviously would be a clear case to be registered under the IPC as also under the
Prevention of Corruption Act.
In this case, there is no corruption.
3. Raj Rajendra Singh Seth v. State of Jharkhand and Anr.112 – In this case, father of
complainant was admitted in Government Hospital. Dr. who was making treatment
demanded 500 rs., otherwise he was not ready to give proper treatment. So Dr. was
convicted under Prevention of Corruption Act, 1988.
4. Burden of prove- It was, therefore, held that when the amount is found to have been
passed to the public servant, the burden is on public servant to establish that it was not
by way of illegal gratification.
5. Ingredients of the offence - But the most important and vital check before a public
servant can be booked under the Prevention of Corruption Act, the ingredients of the
111
Preposterous (Adjective) means contrary to reason or common sense; utterly absurd or ridiculous.
112
(2008) 11 SCC 681.

134
offence will have to be deduced from the facts and circumstances obtained in the
particular case.
6. It is not trade - Offence under Section 168 of the IPC cannot be held to have been
made out against the appellants even under this Section as the treatment of patients by
a doctor cannot by itself be held to be engagement in a trade as the doctors’ duty to treat
patients is in the discharge of his professional duty which cannot be held to be a ‘trade’
so as to make out or constitute an offence under Section 168 of the IPC.
Supreme Court concluded its decision in para no. 17 of the judgment. There are following
decision of Supreme Court –
1. Setting aside ‘Order’ of High Court – Supreme Court set aside the impugned orders
passed by the High Court.
2. Quashing FIR - Supreme Court quashed the FIR No.13 dated 9.4.2003 registered
against the appellants. There was no prima facie case either under
 Section 168 of the IPC or
 Section 13 (1) (d) read with 13(2) of the Prevention of Corruption.
3. Proceeding under the Punjab Civil Services (Punishment and Appeal) Rules -
State, although may be justified if it proceeds under the Punjab Civil Services
(Punishment and Appeal) Rules against the appellants initiating action for misconduct.
Allowing both appeals - Both appeals were allowed by Supreme Court.
Question 6 (b) - M was an M.P. in Lok Sabha from Karol Bagh constituency (2004 -2009)
in Delhi. M had earned money and property which were highly disproportionate from his
known source of income. An FIR has been lodged against M and he was put on trial (2015).
Contention & Issue - M raised objection of not taking previous sanctions as he is a public
servant representing South Delhi Lok Sabha constituency (2014 – 2019). Decide.
Answer – In the case of P.V. Narasimha Rao v. State (CBI) (1998) Hon’ble Supreme Court
held that MPs and MLAs are also public servant under PC Act, 1988.
There are two answers of this question. One is based on the ratios of decisions of RS Nayak v.
A R. Antulay & Abhay Singh Chautala v. CBI. Another answer is based on Prevention of
Corruption (Amendment) Act, 2018. According to the former, sanction is not necessary while
in later case, sanction is necessary.
Answers
R.S. Nayak v. A.R. Antulay & PC(Amendment) Act, 2018 -

Abhay Singh Chautala v. CBI Section 19 (1) Explanation
Taking 'Sanction' u/s 19 is Taking 'Sanction' u/s 19 is

not necessary necessary
Effect - Narrower protection Effect - Wider protection

for public servants for public servants

135
2017
Question 6 (b) – Sh. Rajender is working as a joint secretary in the Home Ministry (Mr. Amit
Shah). An FIR is lodged against him by Sh. Sanjeev for taking bribe when he was working in
the Finance Ministry (Mrs. Nirmala Sitharaman).
Contention and Issue - The Trial initiated on the basis of said FIR was opposed by Sh.
Rajender for not taking previous sanction from the Competent Authority. Decide.
Answer –
There are two answers of this question. One is based on the ratios of decisions of RS Nayak v.
A R. Antulay & Abhay Singh Chautala v. CBI. Another answer is based on Prevention of
Corruption (Amendment) Act, 2018. In the former case, sanction is not necessary while in later
case, sanction is necessary.
Answers
R.S. Nayak v. A.R. Antulay & PC(Amendment) Act, 2018 -

Abhay Singh Chautala v. CBI Section 19 (1) Explanation
Taking 'Sanction' u/s 19 is Taking 'Sanction' u/s 19 is

not necessary necessary
Effect - Narrower protection Effect - Wider protection

for public servants for public servants
Section 19 (1) Explanation - For the purposes of sub-section (1), the expression “public
servant” includes such Person -
(a) who has ceased to hold the office during which the offence is alleged to have been
committed; or
(b) Change of office -
 who has ceased to hold the office during which the offence is alleged to have been
committed and
 is holding an office other than the office during which the offence is alleged to have
been committed.
There are following cases I am going to discuss

Name of cases Year and Court Remarks
R.S. Nayak v. A R. 1984 (Supreme Court) Section 6, PC Act, 1947
Antulay113
Abhay Singh Chautala and 2011 (Supreme Court) Section 19, PC Act, 1988
Anr. v. CBI
Om Prakash Chautala and 2015 (Supreme Court) Convictions of accused
Anr. v. CBI
113
2020)

136
R.S. Nayak v. A R. Antulay114
Date of Judgment – February 16, 1984

Bench –Constitutional Bench
At a general election held in 1980, A R. Antulay was elected as Member of the Legislative
Assembly of Maharashtra State fom Shrivardhan Assembly Constituency. He was appointed
as Chief Minister of Maharashtra State, and he was holding that office at the time he is alleged
to have committed the offences set out in the complaint filed against him. He tendered his
resignation of the office of the Chief Minister and ceased to hold that office with effect from
January 20, 1982. However, he continued to retain his seat as M.L.A.
A.R. Antulay (Barrister Abdul Rahman Antulay) was chief Minister of Maharashtra during
August 1980 to January 20, 1982. Corruption allegation was that he extracted money for trust
which were being managed by him. Complaint was filed against him for abuse of post of Chief
Minister. Sanction was not given by Governor. He have to resign due to corruption charge. He
was leader of Congress Party. Fresh complaint was filed against him. He was still MLA. He
objected that proceeding can’t be started against him without previous sanction because he was
still MLA.
Objects
The object underlying such provision was to save the public servant from the harassment of
frivolous or unsubstantiated allegations. The policy underlying Sec. 6 and similar sections, is
that there should not be unnecessary harassment of public servant.
Section 6 bars the court from taking cognizance of the offences therein enumerated to have
been committed by a public servant except with the previous sanction of the competent
authority empowered to grant the requisite sanction.
What should be considered at the time of granting sanction?
By a catena of decisions, it has been held that the authority entitled to grant sanction must apply
its mind to the facts of the case, evidence collected and other incidental facts before according
sanction. A grant of sanction is not an idle formality but a solemn and sacrosanct act which
removes the umbrella of protection of government servants against frivolous prosecutions and
the aforesaid requirements must therefore, be strictly complied with before any prosecution
could be launched against public servants.
Issues
On these rival contentions some vital and some not so vital points arise for consideration, some
easy of answer and some none-too easy. For their scientific and logical treatment they may be
formulated.
Question - If the accused holds plurally of offices occupying each of which makes him a
public servant, is sanction of each one of the competent authorities entitled to remove him from
each one of the offices held by him necessary and if anyone of the competent authorities fails
or declines to grant sanction, is the Court precluded or prohibited from taking cognizance of
the offence with which the public servant is charged?
Answer – No. Sanction of every authority is not necessary.
Question Is it implicit in Sec. 6 of the 1947 Act that sanction of that competent authority alone
is necessary, which is entitled to remove the public servant from the office which is alleged to
have been abused for misused for corrupt motives?
114
2020)

137
Answer – Yes.
If the public servant holds two offices and he is accused of having abused one and from which
he is removed but continues to hold the other which is neither alleged to have been used nor
abused, is a sanction of the authority competent to remove him from the office which is neither
alleged or shown to have been abused or misused necessary?
Supreme Court observed, “An illustration was posed to the learned counsel that a Minister who
is indisputably a public servant greased his palms by abusing his office as Minister, and then
ceased to hold the office before the court was called upon to take cognizance of the offence
against him and therefore, sanction as contemplated by Sec. 6 would not be necessary; but if
after committing the offence and before the date of taking of cognizance of the offence, he was
elected as a Municipal President in which capacity he was a public servant under the relevant
Municipal law, and was holding that office on the date on which court proceeded to take
cognizance of the offence committed by him as a Minister, would a sanction be necessary and
that too of that authority competent to remove him from the office of the Municipal President.
One can legitimately envisage a situation wherein a person may hold a dozen different offices,
each one clothing him with the status of a public servant under Sec. 21 IPC and even if he has
abused only one office for which either there is a valid sanction to prosecute him or he has
ceased to hold that office by the time court was called upon to take cognizance, yet on this
assumption, sanction of 11 different competent authorities each of which was entitled to remove
him from 11 different public offices would be necessary before the court can take cognizance
of the offence committed by such public servant, while abusing one office which he may have
ceased to hold. Such an interpretation in contrary to all canons of construction and leads to
an absurd and product which of necessity must be avoided.”
Conclusion
It can be held that no sanction to prosecute him was necessary as former Chief Minister of
Maharashtra State.
Abhay Singh Chautala & Anr. v. CBI115 (2011)
(JBT Teachers Recruitment Scam)
Appellants –
 Abhay Singh Chautala
 Ajay Singh Chautala
Division Bench of SC –
 Hon’ble Justice V.S. Sirpurkar
 Hon’ble Justice T.S. Thakur
Date of judgment – July 04, 2011
Summary
 Facts
 Statutory Provisions and cited cases
 Issues
 Arguments of appellants
 Arguments of respondent
 Ratios
 Decision
115
This case is available at: https://main.sci.gov.in/judgment/judis/38157.pdf (Visited on November 13, 2020).

138
 Decision of the Case and PC (Amendment) Act, 2018.

 Conclusion
Facts
Chaudhary Devi Lal (Ex-Deputy PM - 1989 to
1991) (He is not related to this case)
Om Prakash Chautala
(Ex-Chief Minister -1999 to 2005)
Ajay Singh Abhay Singh

Chautala Chautala
Dushyant Chautala (Current Deputy

CM) (His name is not in this case)
Om Prakash Chautala & JBT Scam - Om Prakash Chautala was Chief Minister of Haryana
(1999 – 2005). He has two sons, Ajay Singh Chautala and Abhay Singh Chautala. His grandson
is Dushyant Chautala. During his regime, Junior Basic Trained (JBT) teachers scam happened.
The scam came to light when former director of primary education Sanjeev Kumar filed a writ
petition in the Supreme Court saying that the Chautala government had taken bribes to recruit
3,208 JBT teachers. Kumar, a 1989-batch IAS officer, had alleged that then chief minister
Chautala, who was also handling the education ministry then, had forced him to change the
original list of 2,000 selected candidates.116 Supreme Court passed an Order in 2003 to CBI to
investigate this scam.
Abhay and Ajay Singh Chautala

It was alleged that both the accused while working as the Members of Legislative Assembly
had accumulated wealth disproportionate to their known sources of income.
Abhay Singh Chautala It is found that in the check period of 7.6.2000 to 8.3.2005, appellant
Abhay Singh Chautala had amassed wealth worth Rs.1,19,69,82,619/- which was 522.79 % of
appellant Abhay Singh Chautala’s known sources of income. During the check period, Shri
Abhay Singh Chautala was the Member of the Legislative Assembly Haryana, Rori
Constituency.
1 2000 - MLA
2 2009 - MLA
3 2014 -19 MLA
4 2019 – 24 MLA
116
Haryana: What Is the JBT Teachers Scam and Why Is it Back in the News? The Wire. This is available at:
https://thewire.in/politics/haryana-jbt-scam-chautala-bjp-jjp (Visited on November, 15, 2020).

139
Ajay Singh Chautala -

In case of Ajay Singh Chautala, his check period was taken as 24.5.1993 to 31.5.2006 during
which he held the following offices:-
1 2.3.90 to 15.12.92 MLA Vidhan Sabha, Rajasthan
2 28.12.93 to 31.11.98 MLA Vidhan Sabha, Rajasthan
3 10.10.99 to 6.2.2004 Member of Parliament, Lok Sabha from Bhiwani
Constituency
4 2.8.2004 to 03.11.09 Member of Parliament, Rajya Sabha
5 Nov. 2009 – 2013 MLA from Dabwali constituency, Haryana
It was found that he had accumulated wealth worth Rs.27,74,74,260/- which was 339.26 % of
his known sources of income.
Charges -
The appellants were being tried for the offences under Sections 13(1) (e) and 13(2) of the
Prevention of Corruption Act read with Section 109 of Indian Penal Code.
Remarks - There is no sanction to prosecute under Section 19 of the Act against both the
appellants.
Decision of Special Judge - An objection regarding the absence of sanction was raised before
the Special Judge, who in the common order dated 2.2.2010, held that the allegations in the
charge sheet did not contain the allegation that the appellants had abused their current office as
member of Legislative Assembly and, therefore, no sanction was necessary.
High Court - This order was challenged by way of a petition under Section 482 Cr.P.C. before
the High Court. The High Court dismissed the said petition by the order dated 8.7.2010.
Supreme Court – Supreme Court also dismissed appeal. In front of Supreme Court, there were
following issues -
Issues
1. Whether the sanction under Section 19 of The Prevention of Corruption Act, 1988 was
necessary against both the appellants.
Answer – No.
2. Whether the trial which was in progress against both of them, a valid trial.
Answer – Yes.
3. Is RS Nayak v. A R. Antulay117 required reconsideration?
Answer – No.
4. Was the ratio of RS Nayak v. A R. Antulay ‘Obiter Dictum’?
Answer - No
5. Was R.S. Nayak v. A R. Antulay decided per incuriam?
Answer- No.
The decision in the said case was to the effect that if an accused is a public servant who has
ceased to be a public servant and/or is a public servant of different category then no sanction
in terms of Section 6(1) of the Act corresponding to Section 19 (1) of the New Act is necessary.
Arguments of appellants
There were following arguments of appellants –
1. Sanction required u/s 19 being Public Servants on the day of cognizance- On the
day when the charges were framed or on any date when the cognizance was taken, both
the appellants were admittedly public servants and, therefore, under the plain language
117
[1984 (2) SCC 183]

140
of Section 19 (1) of the Act, the Court could not have taken cognizance unless there
was a sanction.
2. Reconsideration of Antulay Case - R.S. Nayak v. A R. Antulay118 should be
reconsideration. In this judgment plain meaning of Section 6 which is pari materia of
Section 19 was ignored.
3. Obiter dictum – Some parts of judgment were ‘Obiter dictum’ esp. paras 23 to 26.
There was no need to decide on some issues. Where the Court makes an observation
which is either not necessary for the decision of the court or does not relate to the
material facts in issue, such observation must be held as obiter dictum.
4. Per Incuriam - Primary stand in this appeal is that the view expressed in R. S. Nayak
v. A.R. Antulay is not correct and fresh look is necessary as the observations made are
per incuriam.
In support of their argument, the learned senior counsel contended that in Antulay’s
case, Section 6(2) of the 1947 Act, as it therein existed, was ignored. In short,
the argument was that Section 6(2) which is pari materia with Section 19(2) of the Act
provides that in case of doubt as to which authority should give the sanction, the time
when the offence is alleged to have been committed is relevant.
Arguments of Respondent -
1. No sanction is necessary – There are following judgments in which Supreme Court
held that there is no need of sanction if office is different-
 R.S. Nayak v. A R. Antulay (1984)
 Habibullah Khan v. State of Orissa & Anr. (1995)
 K. Karunakaran v. State of Kerala (2007)
Supreme Court had clearly laid down the law and had held that where the public servant had
abused the office which he held in the check period but had ceased to hold “that office” or was
holding a different office then a sanction would not be necessary.
Ratios of Supreme Court

1. No need of reconsideration of Antulay Case - There is one more reason, though not
a major one, for not disturbing the law settled in Antulay’s case. That decision has stood
the test of time for last over 25 years and it is trite that going as per the maxim stare
decisis et non quieta movere, it would be better to stand by that decision and not to
disturb what is settled. This rule of interpretation was approved of by Lord Coke who
suggested – “those things which have been so often adjudged ought to rest in peace”.
2. It is not per incurium – This argument is basically incorrect. In Antulay’s case, it is not
as if Section 6(2) of the 1947 Act as it then existed, was ignored or was not referred to,
but the Constitution Bench had very specifically made a reference to and had interpreted
Section 6 as a whole. Therefore, it cannot be said that the Constitution Bench had totally
ignored the provisions of Section 6 and more particularly, Section 6(2). Once the Court
had held that if the public servant had abused a particular office and was not holding
that office on the date of taking cognizance, there would be no necessity to obtain
sanction. It was obvious that it was not necessary for the Court to go up to Section 6(2)
as in that case, there would be no question of doubt about the sanctioning authority. In
our opinion also, Section 6(2) of the 1947 Act, which is pari materia to Section 19(2),
does not contemplate a situation as is tried to be argued by the learned senior counsel.
118
[1984 (2) SCC 183]

141
Once it was held that there was no necessity of sanction at all, there would be no
question of there being any doubt arising about the sanctioning authority.
3. Ratio of Antulay Case was accepted - In Antulay's case (cited supra), the Court
went on to hold that where a public servant holds a different capacity altogether from
the one which he is alleged to have abused, there would be no necessity of sanction
at all.
4. Combined reading of Section 19 (1) and Section 19 (2) -The Section simply
contemplates a situation where there is a genuine doubt as to whether sanctioning
authority should be the Central Government or the State Government or any authority
competent to remove him. The words in Section 19(2) are to be read in conjunction
with Sections 19(1) (a), 19(1)(b) and 19(1)(c). These clauses only fix the sanctioning
authority to be the authority which is capable of "removing a public servant". Therefore,
in our opinion, the argument based on the language of Section 6(2) or as the case may
be, Section 19(2), is not correct.
5. Decision of High Court was upheld – Supreme Court observed, “We are of the clear
view that the High Court was absolutely right to hold that the appellants in both the
appeals had abused entirely different office or offices than the one which they were
holding on the date on which cognizance was taken and, therefore, there was no
necessity of sanction under Section 19 of the Act.
6. Dismissal of Appeal - The appeals are without any merit and are dismissed.
Section 19. Previous sanction necessary for prosecution.—(1) No court shall take
cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged to have been
committed by a public servant, except with the previous sanction save as otherwise provided
in the Lokpal and Lokayuktas Act, 2013 (1 of 2014) -
(a) in the case of a person who is employed, or as the case may be, was at the time of
commission of the alleged offence employed in connection with the affairs of the Union and is
not removable from his office save by or with the sanction of the Central Government, of
that Government;
(b) in the case of a person who is employed, or as the case may be, was at the time of
commission of the alleged offence employed] in connection with the affairs of a State and is
not removable from his office save by or with the sanction of the State Government, of that
Government;
(c) in the case of any other person, of the authority competent to remove him from his office:
Provided that no request can be made, by a person other than a police officer or an officer of
an investigation agency or other law enforcement authority, to the appropriate Government or
competent authority, as the case may be, for the previous sanction of such Government or
authority for taking cognizance by the court of any of the offences specified in this sub-section,
unless -
(i) such person has filed a complaint in a competent court about the alleged offences for which
the public servant is sought to be prosecuted; and
(ii) the court has not dismissed the complaint under section 203 of the Code of Criminal
Procedure, 1973 (2 of 1974) and directed the complainant to obtain the sanction for prosecution
against the public servant for further proceeding:
Provided further that in the case of request from the person other than a police officer or an
officer of an investigation agency or other law enforcement authority, the appropriate
Government or competent authority shall not accord sanction to prosecute a public servant
without providing an opportunity of being heard to the concerned public servant:

142
Provided also that the appropriate Government or any competent authority shall, after the
receipt of the proposal requiring sanction for prosecution of a public servant under this sub-
section, endeavour to convey the decision on such proposal within a period of three months
from the date of its receipt:
Provided also that in case where, for the purpose of grant of sanction for prosecution, legal
consultation is required, such period may, for the reasons to be recorded in writing, be extended
by a further period of one month:
Provided also that the Central Government may, for the purpose of sanction for prosecution of
a public servant, prescribe such guidelines as it considers necessary.
Explanation. -For the purposes of sub-section (1), the expression “public servant” includes
such person-
(a) who has ceased to hold the office during which the offence is alleged to have been
committed; or
(b) who has ceased to hold the office during which the offence is alleged to have been
committed and is holding an office other than the office during which the offence is alleged to
have been committed.]
(2) In case of doubt - Where for any reason whatsoever any doubt arises as to whether the
previous sanction as required under sub-section (1) should be given by the Central Government
or the State Government or any other authority, such sanction shall be given by that
Government or authority which would have been competent to remove the public servant from
his office at the time when the offence was alleged to have been committed.
(3) Effect of errorsNotwithstanding anything contained in the Code of Criminal Procedure,
1973 (2 of 1974),—
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a
Court in appeal, confirmation or revision on the ground of
 the absence of, or
 any error,
 omission or
 irregularity in,
the sanction required under sub-section (1),
unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or
irregularity in the sanction granted by the authority, unless it is satisfied that such error,
omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall
exercise the powers of revision in relation to any interlocutory order passed in any inquiry,
trial, appeal or other proceedings.
(4) Method to decide failure of justice - In determining under sub-section (3) whether the
absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted
in a failure of justice the court shall have regard to the fact whether the objection could and
should have been raised at any earlier stage in the proceedings.
Explanation. -For the purposes of this section, -
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the
prosecution shall be at the instance of a specified authority or with the sanction of a specified
person or any requirement of a similar nature.

143
Om Prakash Chautala v. CBI119
This case is related to JBT Scam. Facts of this case I have already discussed when I was
discussing Abhay Singh Chautala and Anr. v. CBI.
Decision of CBI Court (Special) in 2013-
In January, 2013, former Haryana chief minister and INLD supremo Om Prakash Chautala, his
son and Dushyant’s father Ajay, and three other officials, including the whistleblower in the
case, were given 10 years of jail by a special CBI court for illegally recruiting over 3,000
teachers in the year 1999-2000. It was proven that the junior basic trained (JBT) teachers were
hired with the help of forged documents. Total 55 accused were convicted.
High Court (March 06, 2015) - High Court upheld conviction of all accused.
Supreme Court - On August 03 2015, the Supreme Court dismissed their appeals against the
High Court’s decision.
2015
Question 6 – What actions of a public servant amount to misconduct? Is it necessary to obtain
previous sanctions for prosecution under the Prevention of Corruption Act, 1988?
2019
Question 2(a) – What actions of a public servant amount to criminal misconduct under the
Prevention of Corruption Act, 1988? Discuss
Answer -
Meaning of Misconduct
Section 13 has been substituted in 2018. Some cases have been decided on section 13 before
2018 Amendment. These are following -
 Kalicharan Mahapatra v. State of Orissa, AIR 1998 SC 2595
 Kanwarjit Singh Kakkar v. State Of Punjab, (2011) 6 S.C.R. 895
 Abhay Singh Chautala v. C.B.I, (2011) 7 SCC 141
But after amendment in 2018, previous judgments are not relevant.
Section 13 after amendment

Section 13. Criminal misconduct by a public servant.—(1) A public servant is said to
commit the offence of criminal misconduct, -
(a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any
property entrusted to him or any property under his control as a public servant or allows any
other person so to do; or
(b) if he intentionally enriches himself illicitly during the period of his office.
Explanation 1. - A person shall be presumed to have intentionally enriched himself illicitly if
he or any person on his behalf, is in possession of or has, at any time during the period of his
office, been in possession of pecuniary resources or property disproportionate to his known
sources of income which the public servant cannot satisfactorily account for.
Explanation 2. - The expression ‘‘known sources of income’’ means income received from any
lawful sources.
119
This order is available at: https://main.sci.gov.in/jonew/courtnic/rop/2015/16248/rop_327892.pdf (November
15, 2020).

144
(2) Any public servant who commits criminal misconduct shall be punishable with
imprisonment for a term which shall be not less than 2[four years] but which may extend to
3[ten years] and shall also be liable to fine.
Conclusion regarding Section 19
Comparison between Cases and Amendment , 2018

Grounds Cases 2018 Amendment
Acting Public Servants Previous ‘Sanction’ is necessary. Previous ‘Sanction’ is
necessary.
Acting Public Servants Previous ‘Sanction’ is not Previous ‘Sanction’ is
(Change of office time necessary. necessary.
to time) (RS Nayak v. A R. Antulay &
Abhay Singh Chautala v. CBI)
Retired Public Previous ‘Sanction’ is not Previous ‘Sanction’ is
Servants necessary. necessary.
(Kalicharan Mahapatra v. State
of Orissa)

145
TOPIC 6: THE PREVENTION OF MONEY-LAUNDERING ACT, 2002

LAW CENTRE – 1, FOL,
University of Delhi, Delhi
[email protected]
SYLLABUS
 Need for combating Money-Laundering
 Magnitude of Money-Laundering, its steps and various methods
 The Prevention of Money-Laundering Act, 2002:
 Definition of ‘Money Laundering’, Section 3 & 2(1)(p)
 Punishment for Money Laundering (Section 4)
Enforcement:
 Attachment (Section 5)
 Survey, Search, & Seizure (Sections 16, 17 & 18)
 Power to arrest (Section 19)
Adjudication under the Act:
 Adjudication by Adjudicating Authorities (Section 8)
 Special courts (Sections 43 to 47)
 Vesting of Property in Central Government (Section 9)
Preventive Mechanisms under the Act:
 Obligation of banking companies, financial institutions and Intermediaries (Sections 12
& 12A)
 Reciprocal Arrangements with other countries (Overview of Chapter IX i.e. Sections
55 to 61)
Leading Cases
 Ram Jethmalani and Ors. v. Union of India120, (July 04, 2011)
 Binod Kumar v. State of Jharkhand & Ors, (2011) 11 SCC 463
 Ramaraju v. Union of India, W.P. No. 10765 of High Court of A.P. 2011 (164)
Company Case 149
S. Judgments in DU LL.B. Syllabus
1 Ram Jethmalani and Ors. v. Union of India July 04, 2011 (SC)
2 Binod Kumar v. State of Jharkhand & Ors March 29, 2011 (SC)
3 Ramaraju v. Union of India 2011 (AP (HC)
Judgments not in DU LL.B. Syllabus
I Gautam Kundu v. Manoj Kumar, Assistant Director, December 16, 2015 (SC)
II Nikesh Tarachand Shah v. Union of India November 23, 2017 (SC)
III P. Chidambaram v. Directorate of Enforcement December 04, 2019 (SC)
120
https://main.sci.gov.in/judgment/judis/38154.pdf

146
IV Mohammad Arif v. Directorate of Enforcement, Govt. of July 13, 2020 (Orissa HC)
India
PREVIOUS YEARS QUESTION PAPERS (DU LL.B)

2015
Question 7 – Describe ‘Money Laundering’ with its various steps and methods. In what
circumstances can a person be arrested under the Prevention of Money-Laundering Act, 2002?
Answer-
Question 8 (c) – ‘Adjudication’ under the Prevention of Money –Laundering Act, 2002.
2017
Question 7 (a) Explain in detail the law relating to ‘Adjudication’ under the ‘Prevention of
Money-Laundering Act, 2002.
Question (b) – Discuss the law relating to search and seizure including search of persons under
the ‘Prevention of Money-Laundering Act, 2002.
Unknown
Question 6 (a) Explain in detail the law relating to the ‘attachment of property involved in
money laundering under Prevention of Money Laundering Act, 2002.
Question 7 (a) – What are the obligations of banking companies, financial institutions and
intermediaries under the Prevention of Money Laundering Act, 2002?
Question 8 (b) – There was amassing of illicit wealth by Chief Ministers of a State in India.
This money was unprecedented amount, however there was no clear allegation of its
laundering. But it led to investment in property, etc. The matter was referred to the CBI for
investigation which was opposed by the accused persons pleading it to be the exclusive domain
of the Enforcement Directorate. Decide.
Unknown Year
Question 5 (a) – Explain in detail the procedure of Adjudication by Adjudicating authorities
under Section 8 of the Prevention of Money Laundering Act, 2002.
Question 7 (a) – Describe ‘money laundering? What are the various steps and methods of
money laundering?
(a)
(b)
(C) - Special Courts and their powers under Chapter VII of the Prevention of Money
Laundering Act, 2002.
2019
Question 4 (a) – Whether CBI has any authority to investigate offences which are the sole
domain of the Enforcement Directorate? Discuss the relevant provisions with reference to
decided cases under the Prevention of Money-Laundering Act, 2002?
Question 6 – Discuss the term ‘money-laundering’ and its punishment with relevant
provisions. In what circumstances can a person be arrested under the Prevention of Money
Laundering Act, 2002?

147
REASONS OF ENACTMENT OF PMLA, 2002

Preamble of the Act itself denotes reason of enactment of the Act. This Act was enacted to
fulfill international obligations aroused from ‘Political Declaration and Global Programme of
Action’ adopted by UN General Assembly on February 23, 1990. Special Session was
conducted in June 1998 and it was requested from all countries to enacted laws to prevent
money laundering in their respective countries.
BRIEF HISTORY OF PMLA, 2002
The Prevention of Money-laundering Bill, 1998 was introduced in Lok Sabha on the 4th
August, 1998. The Hon’ble Speaker referred the Bill to the Standing Committee on Finance,
which presented its Report on the 4th March 1999 to Lok Sabha. After incorporating the
recommendations of the Standing Committee, the Government introduced the Prevention of
Money Laundering Bill 1999 in Parliament on October 29, 1999. The Bill was enacted on 17
January, 2003. The Prevention of Money-Laundering Act, 2002 (PMLA) was brought into
force on July 01, 2005. It is special law. Total sections are 75. There is one Schedule. There
are three parts of this Schedule namely: Part A, Part B and Part C. These Parts have been
divided into Paragraphs.
 Part A
 Paragraph 1 [Certain offences mentioned in IPC, 1860]
 Paragraph 2 [Certain offences mentioned in NDPS, 1985]
 Paragraph 3 [Certain offences mentioned in Offences Under The Explosive
Substances Act,1908]
 Paragraph 4 [Certain offences mentioned in Offences Under The Unlawful
Activities (Prevention) Act, 1967]
 Paragraph 5 [Certain offences mentioned in Offences Under The Arms Act,
1959]
 Paragraph 6 [Certain offences mentioned in Offences Under The Wild Life
(Protection) Act, 1972]
 Paragraph 7 [Certain offences mentioned in Offences Under The Immoral
Traffic (Prevention) Act, 1956]
 Paragraph 8 [Certain offences mentioned in Offences Under The Prevention
Of Corruption Act, 1988]
 Paragraph 9 [Certain offences mentioned in Offences Under The Explosives
Act, 1884
 Paragraph 10 [Certain offences mentioned in Offences Under The
Antiquities And Arts Treasures Act, 1972]
 Paragraph 11 [Certain offences mentioned in Offences Under The Securities
And Exchange Board Of India Act, 1992]
 Paragraphs 12 to 29 …………
 Part B - Offence Under The Customs Act, 1962
 Part C An offence which is the offence of cross border implications and is specified
in,— (1) Part A; or (2) Omitted. (3) the offences against property under Chapter XVII
of the Indian Penal Code (45 of 1860).(4) The offence of wilful attempt to evade any
tax, penalty or interest referred to in section 51 of the Black Money (Undisclosed
Foreign Income and Assets) and Imposition of Tax Act, 2015 (22 of 2015).

148
It was amended in 2005, 2009, 2013, 2015, 2016, 2018 and 2019. This Act was amended by
Finance Act, 2019. It was amended through Finance Act as ‘Money Bill’. Rajya Sabha MP Mr.
Jairam Ramesh challenged in High Court. High Court rejected this and he filed appeal in
Supreme Court.121 Matter is pending before Supreme Court. Mr. Chidambaram submitted that
before 2015, the PMLA was amended on various occasions through Ordinary Bills as defined
under Article 109 of the Constitution. However, post 2015, the Act has been amended through
Money Bills. Amendments are going on in such way since 2015 to till now.122 This is not good
for healthy democracy.
NEED FOR COMBATING MONEY-LAUNDERING
Several times, crimes are committed for money. Illegal business of drugs, humane trafficking,
arms dealing, poaching, adulteration of foods involve collection of huge money in illegal way.
Terrorism and wage war depend upon black money. In several times, it has been observed that
black money is used for winning election and it is direct attack on basic tenets of democracy.
It is also threat for Indian economy and sovereignty of nation. It leads bribery. In case of money
laundering, government deprives from collection of taxes. If Government is unable to collect
taxes, it will hamper for development of nation. For example, Government will be unable to
provide scholarships, salaries, subsidies on foods, agriculture, oil etc.
Demonetisation on Indian currency was done in November 08, 2016 to break chain of money
laundering. From the above discussion, it becomes very clear regarding need for combating
money-laundering.
In Nikesh Tarachand Shah v. Union of India123, Supreme Court cited “Statement of Objects
and Reasons” of the Act. The Statement states, ‘It is being realised, world over, that money
laundering poses a serious threat not only to the financial systems of countries, but also to their
integrity and sovereignty’.
PROBLEMS
There are several problems arises due to money laundering. These are –
(1) Governments become unable to trace source of such money. So it is not in position to
impose tax. Government of any country run by taxes. (2) It helps illegal activities and
commission of crimes. (3) Finally it destroy economic condition of country.
OBJECTS OF PMLA, 2002
Preamble of the Act, 2002 itself mention following objects –
 to prevent money-laundering and
 to provide for confiscation of property derived from, or involved in, money-laundering
and
 for matters connected therewith or incidental thereto.
MONEY-LAUNDERING IN RECENT NEWS
Money laundering always becomes in news. Before some months, actions were taken under
this Act against Mr. P. Chidambaram and Maulana Saad Kandhalvi, leader of Tablighi
congregation. Mr. P. Chidambaram and his son was arrested in INX Media Case. Supreme
121
Krishnadas Rajagopal, “Prevention of Money Laundering Act: Supreme Court seeks Centre’s view on Jairam
Ramesh’s petition” The Hindu, July 2, 2020.
122
Ibid.
123
Infra………

149
Court granted regular bail to Mr. P. Chidambaram on December 04, 2019 and reminded to ED
that bail is still rule and jail is exception.
Rhea Chakraborty was booked under PMLA in Sushant case.124 Officials said the
Enforcement Case Information Report (ECIR), equivalent to the police FIR, has been registered
in the case related to the actor’s death and alleged irregularities suspected to have been
committed to divert his finances. The ‘Enforcement Directorate’ (ED) on July 31 registered a
money laundering case against Rhea and her family members. The case is about “Suspicious
transactions” worth Rs 15 crore which were allegedly taken from the late actor’s account. 125
Salient features of PMLA, 2002

There are following Salient features of PMLA, 2002 which are following –
1. Application of Act
2. Definition of Money-laundering and ‘proceeds of crime’
3. Punishment for money-laundering
4. Presumption of commission of crime
5. Burden of prove over accused
6. Attachment and Confiscation of Property
7. Establishment of Special Court
8. Cognizable and Non-bailable offence
9. Search with without FIR
10. Overriding effect
1. Application of Act and its infrastructure - PMLA, 2002 is applicable to whole territory
of India. It was enacted in 2003 and came into force on July 01, 2005. Total sections are
75. There is one Schedule. It is special law.
2. Definition of Money-laundering and ‘proceeds of crime’
3. Punishment for money-laundering – By Finance Act, 2019, PMLA was amended.126
After Amendment in 2019, money-laundering is independent offence.
4. Search and Seizure [Section 17] – Before 2019 Amendment, search and seizure was not
possible under this Act unless there was FIR or charge sheet submitted by other agencies.
This was pre-requisite. By Finance Act, 2019, sub-section (1), the proviso of section 17
was omitted.
5. Search of persons [Section 18] - Before 2019 Amendment, search of persons was not
possible under this Act unless there was FIR or charge sheet submitted by other agencies.
This was pre-requisite. By Finance Act, 2019, proviso of section 18 was omitted.
The most crucial amendments are the deletion of provisos in sub-sections (1) of Section 17
(Search and Seizure) and Section 18 (Search of Persons), doing away with the pre-requisite
of an FIR or charge-sheet by other agencies that are authorised to probe the offences listed
in the PMLA schedule.127
6. Presumption of commission of crime –Section 24 deals presumption and burden of prove.
124
Rhea booked under PMLA in Sushant case, The Tribune, July 31, 2020.
125
https://www.theleaflet.in/why-is-rhea-chakraborty-being-questioned-under-the-prevention-of-money-
laundering-act/# (Visited on November 21, 2020).
126
It is available at: http://egazette.nic.in/WriteReadData/2019/209695.pdf (Visited on November 21, 2020).
127
Devesh K Pandey, “Changes in PMLA Act empower ED”, The Hindu, August 09, 2019.

150
Section 24. Burden of proof - In any proceeding relating to proceeds of crime under this
Act,—
(a) in the case of a person charged with the offence of money-laundering under section 3, the
Authority or Court shall, unless the contrary is proved, presume that such proceeds of crime
are involved in money-laundering; and
(b) in the case of any other person the Authority or Court, may presume that such proceeds of
crime are involved in money-laundering.]
The peculiar nature of this Act is that presumption of guilt exists and the burden of proof lies
upon the accused person. This means, the accused person has to provide proof of innocence
to be discharged of any liability arising from this Act. Thereby, Rhea will be required to furnish
all the necessary information about the transactions she has made to prove her innocence.128
7. Offences to be cognizable and non-bailable- According to Section 45, offences under this
Act are cognizable and non-bailable offences.
8. Offences triable by Special Courts - Offences under this Act is tried by Special Courts
[Section 44].
[I have to read and update salient features. I am not satisfied]
128
https://www.theleaflet.in/why-is-rhea-chakraborty-being-questioned-under-the-prevention-of-money-
laundering-act/#

151

2015
Question 7 – Describe ‘Money Laundering’ with its various steps and methods. In what
circumstances can a person be arrested under the Prevention of Money-Laundering Act, 2002?
Unknown Year
Question 7 (a) – Describe ‘money laundering? What are the various steps and methods of
money laundering?
2019
Question 6 – Discuss the term ‘money-laundering’ and its punishment with relevant
provisions. In what circumstances can a person be arrested under the Prevention of Money
Laundering Act, 2002?
Answer -
MEANING OF MONEY LAUNDERING
Summary
 Literal Meaning
 INTERPOL
 Standing Committee Report
 PMLA, 2002
 Nikesh Tarachand Shah v. Union of India (2017) (Para 7 of the judgment)
Meaning of Money-laundering
MEANING OF MONEY
LAUNDERING
Literal
Interpol
Standing Committee PMLA, 2002
Nikesh
Meaning Report Case
Literal Meaning -
Launder means
 wash and iron clothes.
 conceal the origins of (money obtained illegally), typically by transfers involving
foreign banks or legitimate businesses.
Money laundering words became very famous when criminals in USA started to convert illegal
business into legal business at large level in 1980.
Money –laundering is a process in which black money is converted into white money. In other
words, tainted money is converted into untainted money. It is way to hide illegally obtained
money. The word can be defined with the help of
 INTERPOL
 Standing Committee Report
 PMLA, 2002
 Nikesh Case

152
(1) INTERPOL - Money laundering is concealing or disguising the identity of illegally

obtained proceeds so that they appear to have originated from legitimate sources.129
It is frequently a component of other, much more serious, crimes such as drug trafficking,
robbery or extortion. Money laundering is omnipresent and found in areas where it might least
be expected, such as environmental crimes. The advent of cryptocurrency, such as bitcoins, has
exacerbated this phenomenon.130
(2) 18th Report of Standing Committee on Finance131 - Standing Committee on Finance
(2008-09) in its 18th Report observed following important points –
Meaning of Money-laundering - The process of money laundering involves cleansing of money
earned through illegal activities like extortion, drug trafficking and gun running etc. The tainted
money is projected as clean money through intricate processes of placement, layering and
laundering.
Threat to countries - The serious threat posed by money laundering to the financial systems
and sovereignty was being progressively realized by various countries of world.
(3) Prevention of Money-laundering Act, 2002 (PMLA) - According to Section 2 (p) of
Prevention of Money-laundering Act, 2002 (PMLA), “money-laundering” has the meaning
assigned to it in section 3 of the Act. The person who manipulates this money is called
“launderer”.
Section 2 (p) - “Money-laundering” has the meaning assigned to it in section 3.
Section 3. Offence of money-laundering –
Whosoever directly or indirectly

 attempts to indulge or
 knowingly assists or
 knowingly is a party or
 is actually involved
in any process or activity connected with the proceeds of crime132 including its
 concealment,
 possession,
 acquisition or
 use and
 projecting or claiming it as untainted property
shall be guilty of offence of money-laundering.
Explanation (Ins. In 2019) - For the removal of doubts, it is hereby clarified that, -
(i) a person shall be guilty of offence of money-laundering if such person is found to have
directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is
actually involved in one or more of the following processes or activities connected with
proceeds of crime, namely:—
(a) concealment; or
(b) possession; or
(c) acquisition; or
129
It is available at: https://www.interpol.int/Crimes/Financial-crime/Money-laundering (Visited on November
21, 2020).
130
Ibid.
131
https://www.prsindia.org/sites/default/files/bill_files/scr1229936804_SCR_Prevention_of_Money_Laundering_
Bill.pdf (Visited on November 20, 2020)
132
Section 2 (u) defines proceeds of crime.

153
(d) use; or
(e) projecting as untainted property; or
(f) claiming as untainted property,
in any manner whatsoever;
(ii) the process or activity connected with proceeds of crime is a continuing activity and
continues till such time a person is directly or indirectly enjoying the proceeds of crime by its
concealment or possession or acquisition or use or projecting it as untainted property or
claiming it as untainted property in any manner whatsoever.
Section 2 (u) “proceeds of crime” means any property derived or obtained, directly or
indirectly, by any person as a result of criminal activity relating to a scheduled offence or the
value of any such property or where such property is taken or held outside the country, then
the property equivalent in value held within the country or abroad;
Explanation (Ins. In 2019) - For the removal of doubts, it is hereby clarified that "proceeds of
crime" include property not only derived or obtained from the scheduled offence but also any
property which may directly or indirectly be derived or obtained as a result of any criminal
activity relatable to the scheduled offence;
Section 2 (y) - “scheduled offence” means -
(i) the offences specified under Part A of the Schedule; or
(ii) the offences specified under Part B133 of the Schedule if the total value involved in such
offences is one crore rupees or more; or
(iii) the offences specified under Part C of the Schedule.
(4) Nikesh Tarachand Shah v. Union of India (2017) [Para 7] –

Supreme Court observed at para 7,
 “Under Section 3 of the Act, the kind of persons responsible for money laundering is
extremely wide. Words such as “whosoever”, “directly or indirectly” and “attempts
to indulge” would show that all persons who are even remotely involved in this offence
are sought to be roped in.
 An important ingredient of the offence is that these persons must be knowingly or
actually involved in any process or activity connected with proceeds of crime and
“proceeds of crime” is defined under the Act, by Section 2 (u) thereof, to mean any
property derived or obtained directly or indirectly, by any person as a result of criminal
activity relating to a scheduled offence (which is referred to in our judgment as the
predicate offence).
 Thus, whosever is involved as aforesaid, in a process or activity connected with
“proceeds of crime” as defined, which would include concealing, possessing, acquiring
or using such property, would be guilty of the offence, provided such persons also
project or claim such property as untainted property.
 Section 3, therefore, contains all the aforesaid ingredients, and before somebody can be
adjudged as guilty under the said provision, the said person must not only be involved
in any process or activity connected with proceeds of crime, but must also project or
claim it as being untainted property.
Punishment for Money-laundering under Section 4
133
Part B - Offence under The Customs Act, 1962.

154
Under Section 4 of the Act, the offence of money laundering is punishable with rigorous
imprisonment for a minimum period of three years which may extend to 7 years and fine.
Also, under the proviso, where the proceeds of crime involved in money laundering relate
to a predicate offence under paragraph 2 of Part A of the Schedule, the sentence then gets
extended from 7 years to 10 years.
PROCESS OF ‘MONEY-LAUNDERING’
With the help of Report and decision of Court, we can say that there are three process of
‘Money-laundering’.
Process of ML
18th Report of Standing Mohammad Arif v. Directorate B. Ramaraju v. UOI

Committee on Finance of Enforcement, Govt. of India (2011)
(1) 18th Report of Standing Committee on Finance -

In this process, three steps are followed which are following –
 Placement
 Layering
 Laundering
(2) Mohammad Arif v. Directorate of Enforcement, Govt. of India134 and B. Ramaraju v.
UOI
The Act money laundering involves the process of
 placement,
 layering and
 integration of “proceeds of crime”.
134
This case was decided by Orissa High Court on July 13, 2020.

155
Source of pic- Jagran Josh135
Gautam Kundu v. Manoj Kumar Assistant Director, Eastern Region, ED, (PMLA) Govt. of
India
Date of Judgment – December 16, 2015
 Hon’ble Justice Pinaki Chandra Ghose
 Hon’ble Justice R.K. Agrawal
Author of Judgment - Hon’ble Justice Pinaki Chandra Ghose
Facts - The appellant is the Chairman of Rose Valley Real Estate Construction Ltd. Situated
in West Bengal. This case is related to bail.
Relation between PMLA and CrPC
In this case, Supreme Court observed at para 30,
 “The conditions specified under Section 45 of the PMLA are mandatory and needs to
be complied with which is further strengthened by the provisions of Section 65 and
also Section 71 of the PMLA.
 Section 65 requires that the provisions of Cr.P.C. shall apply in so far as they are not
inconsistent with the provisions of this Act and Section 71 provides that the provisions
of the PMLA shall have overriding effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force.
 PMLA has an overriding effect and the provisions of Cr.P.C. would apply only if they
are not inconsistent with the provisions of this Act. Therefore, the conditions
enumerated in Section 45 of PMLA will have to be complied with even in respect of
an application for bail made under Section 439 of Cr.P.C.
 Presumption of commission of crime and burden over accused- That coupled with
the provisions of Section 24 provides that unless the contrary is proved, the Authority
or the Court shall presume that proceeds of crime are involved in money laundering
and the burden to prove that the proceeds of crime are not involved, lies on the
appellant”.
Enforcement Directorate (ED) has registered a money laundering case against Sahara group
(Subrata Roy) in connection with non-payment of crores of rupees to depositors as probed by
capital in November 13, 2014.
Nikesh Tarachand Shah and Ors. v. Union of India and Anr.136

November 23, 2017 (SC)
Statutory Provisions –
PMLA, 2002 - Section 45137 (Bail)
135
This is available at: https://www.jagranjosh.com/general-knowledge/meaning-of-money-laundering-
1549620151-1 (Visited on November 20, 2020).
136
https://main.sci.gov.in/supremecourt/2017/13393/13393_2017_Judgement_23-Nov-2017.pdf
137
Section 45(1) imposes two conditions for grant of bail where an offence punishable for a term of imprisonment
of more than 3 years under Part A of the Schedule to the Act is involved.

156
Constitution – Articles 14 and 21 of the Constitution of India.

CrPC – Bail, Sections 437 and 439.
In this case Supreme Court observed following important topics –

 Statement of Objects and Reasons
 Meaning of ‘Money Laundering’
 History of Bail (I read this history first time)
 Supreme Court declared two conditions mentioned in section 45 as violation of Article
14 of the Constitution of India and directed Court to release all persons whose bail had
been rejected on the basis of these two conditions.
P. Chidambaram v. Directorate of Enforcement138
Date of Judgement – December 04, 2019
Bench – Full Bench
1. Hon’ble Justice R. Banumathi
2. Hon’ble Justice A.S. Bopanna
3. Hon’ble Justice Hrishikesh Roy
Facts
Mr. P. Chidambaram was arrested in INX Media Case. FIR was registered by Directorate of
Enforcement under section 3 of Prevention of Money Laundering Act, 2002, punishable under
section 4 of the said Act.
Hon’ble Supreme Court granted bail and observed at Para 21 of the judgment, “Thus from
cumulative perusal of the judgments cited on either side including the one rendered by the
Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to
bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so
as to ensure that the accused has the opportunity of securing fair trial”.
Mohammad Arif v. Directorate of Enforcement, Govt. of India
Date of Judgment - July 13, 2020

High Court – Orissa High Court.
Observation of High Court
 History of PMLA - The Prevention of Money Laundering Act, 2002 was passed in
furtherance of United Nations resolution (June 1998) to curb and deter economic
offences. The said Act came into force on 1st July, 2005 which is modeled after the
Criminal Justice Act of the United Kingdom, it imposes criminal liability on those who
know or suspect that someone is involved in laundering the proceeds of crime and fail
to report it.
 Process of Money-laundering- The act money laundering involves the process of
 placement,
138
This judgment is available at:
https://main.sci.gov.in/supremecourt/2019/41156/41156_2019_5_1501_18764_Judgement_04-Dec-2019.pdf
(Visited on November 20, 2020)

157
 layering and
 integration of “proceeds of crime” as envisaged under Section 2 (u) of the Act,
derived from criminal activity into mainstream fiscal markets and transmuted
into legitimate assets.
 Threat to Economic stability and sovereignty - It has been realized globally that
laundering of tainted money having its origins in large scale economic crimes pose a
solemn threat not only to the economic stability of nations but also to their integrity
and sovereignty.
 Types of offences u/ PMLA - Two types of offences have been contemplated under
the PML Act: (a) the actual commission of a scheduled offence which generates tainted
wealth or proceeds from the scheduled crime and (b) the laundering of the “proceeds
of crime” so generated.
 Participation and subsequent Participation - The Act, is amply clear, that even
though a person may not have actually committed a scheduled offence as provided
under the Act but upon subsequent participation in the laundering of such monies will
nonetheless render him culpable under the Act.
 Nature of offences u/ PMLA - Money Laundering is an independent as well as
continuing offence, which can be inferred from its very definition under Section 2(p)
of the Act. The offence is treated as continued offence as long as accused remains in
possession, causes concealment of the nature of the money or continues to mask the
tainted money as untainted.
 Cognizable and Non-bailable offences - Section 45 of the PML Act makes the
offence of money laundering cognizable and non-bailable.

158
Ram Jethmalani and Ors. v. Union of India139

(Black Money case)
Date of Judgment - July 04, 2011
Bench – Division
 Hon’ble Justice B. Sudershan Reddy
 Hon’ble Justice Surinder Singh Nijjar.
PIL – Writ Petition was filed under Article 32 on the grounds of violation of Article 14 and 21
of the Constitution.
Introduction – In this case, even a single provision of PMLA, 2002 was not discussed. In this
case, Supreme Court expressed its dismay over Government for not taking proper actions for
prevention and taking back black money. Order was passed to establish SIT and it was directed
to disclose name of persons who have deposited their money in foreign countries. Supreme
Court said that every account is other country should not be taken as dubious accounts. It was
directed that name of those persons must not be disclosed with respect of whom
investigations/enquiries are still in progress and no information or evidence of wrongdoing is
yet available. Time for next hearing was fixed on August 16, 2011.
I may be wrong. But as per my knowledge this case is still pending.
Facts
Hon’ble Supreme Court discussed facts of the case at paras 22 and 23 of the judgment. These
facts are -
 The instant writ petition was filed, in 2009, by Shri. Ram Jethmalani, Shri. Gopal
Sharman, Smt. Jalbala Vaidya, Shri. K.P.S. Gill, Prof. B.B. Dutta, and Shri. Subhash
Kashyap, all well-known professionals, social activists, former bureaucrats or those
who have held responsible positions in the society.
 The Petitioners state that there have been a slew of reports, in the media, and also in
scholarly publications that various individuals, mostly citizens, but may also include
non-citizens, and other entities with presence in India, have generated, and secreted
away large sums of monies, through their activities in India or relating to India, in
various foreign banks, especially in tax havens, and jurisdictions that have strong
secrecy laws with respect to the contents of bank accounts and the identities of
individuals holding such accounts.
 The Petitioners allege that most of such monies are unaccounted, and in all probability
have been generated through unlawful activities, whether in India or outside India, but
relating to India. Further, the Petitioners also allege that a large part of such monies
may have been generated within India, and have been taken away from India, breaking
various laws, including but not limited to evasion of taxes.
139
This is available at: https://main.sci.gov.in/judgment/judis/38154.pdf (Visited on November 24, 2020)

159
ISSUES
Hon’ble Supreme Court framed two issues at para 21 of the judgment. I have written these
issues in lucid language. These two issues are –
(i) Whether Special Investigation Team (SIT) should be the appointed to investigate ‘black
money’?
Answer – Yes. SIT was constituted and Hon'ble Mr. Justice B.P. Jeevan Reddy was nominated
its Chairman.
(ii) Whether certain documents relied upon by the Union of India in its response should be
provided/disclosed to the Petitioners.
Answer – Yes. But this is subject to certain conditions.
Arguments of Petitioners
The Petitioners contend:
1. Black money is symbol of weaknesses in the governance - that the sheer volume of
such monies points to grave weaknesses in the governance of the nation, because they
indicate a significant lack of control over unlawful activities through which such monies
are generated, evasion of taxes, and use of unlawful means of transfer of funds;
2. Laundry and Use of black money - that these funds are then laundered and brought
back into India, to be used in both legal and illegal activities;
3. Cross borders crime - that the use of various unlawful modes of transfer of funds across
borders, gives support to such unlawful networks of international finance; and
4. Threat for security and integrity of India - that in as much as such unlawful networks
are widely acknowledged to also effectuate transfer of funds across borders in aid of
various crimes committed against persons and the State, including but not limited to
activities that may be classifiable as terrorist, extremist, or unlawful narcotic trade, the
prevailing situation also has very serious connotations for the security and integrity of
India.
5. Money of politicians - The Petitioners also further contend that a significant part of such
large unaccounted monies include the monies of powerful persons in India, including
leaders of many political parties.
6. Ignorance of Governments and its agencies - It was also contended that the Government
of India, and its agencies, have been very lax in terms of keeping an eye on the various
unlawful activities generating unaccounted monies, the consequent tax evasion; and that
such laxity extends to efforts to curtail the flow of such funds out, and into, India.
The Petitioners also contend that the efforts to prosecute the individuals, and other
entities, who have secreted such monies in foreign banks, have been weak or non-existent.
It was strongly argued that the efforts at identification of such monies in various bank
accounts in many jurisdictions across the globe, attempts to bring back such monies, and
efforts to strengthen the governance framework to prevent further outflows of such funds,
have been sorely lacking.
7. Hassan Ali Khan Case- They have quoted some examples. The individual specifically
named is one Hassan Ali Khan. The Petitioners also contended that Kashinath Tapuria,
and his wife Chandrika Tapuria, are also party to the illegal activities of Hassan Ali
Khan. Specifically, it was alleged that Hassan Ali Khan was served with an income tax
demand for Rs. 40,000.00 Crores (Rupees Forty Thousand Crores), and that the Tapurias

160
were served an income tax demand notice of Rs. 20,580.00 Crores (Rupees Twenty
Thousand and Five Hundred and Eighty Crores). The Enforcement Directorate, in 2007,
disclosed that Hassan Ali Khan had “dealings amounting to 1.6 billion US dollars” in the
period 2001-2005.
It is the contention of the Petitioners that, even though such evidence was secured nearly
four and half years ago,
I. a proper investigation had not been launched to obtain the right facts from abroad;
II. the individuals concerned, though present in India, and subject to its jurisdiction,
and easily available for its exercise, had not even been interrogated appropriately;
III. that the Union of India, and its various departments, had even been refusing to
divulge the details and information that would reveal the actual status of the
investigation, whether in fact it was being conducted at all, or with any degree of
seriousness;
IV. given the magnitude of amounts in question, especially of the demand notice of
income tax, the laxity of investigation indicates multiple problems of serious non-
governance, and weaknesses in the system, including pressure from political
quarters to hinder, or scuttle, the investigation, prosecution, and ultimately securing
the return of such monies; and
V. given the broadly accepted fact that within the political class corruption is rampant,
ill-begotten wealth has begun to be amassed in massive quantities by many
members in that class, it may be reasonable to suspect, or even conclude, that
investigation was being deliberately hindered because Hassan Ali Khan, and the
Tapurias, had or were continuing to handle the monies of such a class.
8. Writ Petition is maintainable - It was submitted that their filing of this Writ Petition
under Article 32 is proper, as the inaction of the Union of India, as described above,
violates the fundamental rights – to proper governance, in as much as Article 14 provides
for equality before the law and equal protection of the law, and Article 21 promises dignity
of life to all citizens.
9. Request for constitution of SIT - Shri. Divan, specifically argued that, having regard to
the nature of the investigation, its slow pace so far, and the non-seriousness on the part of
the respondents, there is a need to constitute a Special Investigation Team (“SIT”) headed
by a former judge or two of this court. However, this particular plea has been vociferously
resisted by the Solicitor General.
Arguments of Respondent
 Involvement of different law agencies - Union of India repeatedly insisted that the
matter involves many jurisdictions, across the globe, and a proper investigation could
be accomplished only through the concerted efforts by different law enforcement
agencies, both within the Central Government, and also various State governments.
 High Level Committee - In light of the fact that the issues are complex, requiring
expertise and knowledge of different departments, and the necessity of coordination of
efforts across various agencies and departments, the Union of India has recently formed
a High Level Committee, under the aegis of the Department of Revenue in the Ministry
of Finance, which is the nodal agency responsible for all economic offences.

161
Response of Court
The absence of any satisfactory explanation of the slowness of the pace of investigation, and
lack of any credible answers as to why the respondents did not act with respect to those actions
that were feasible, and within the ambit of powers of the Enforcement Directorate itself, such
as custodial investigation, leads us to conclude that the lack of seriousness in the efforts of the
respondents are contrary to the requirements of laws and constitutional obligations of the Union
of India.
Supreme Court concluded following important points –
1. Constitution of SIT – Supreme Court directed for constitution of SIT. The High Level
Committee constituted by the Union of India, comprising of
(i) Secretary, Department of Revenue;
(ii) Deputy Governor, Reserve Bank of India;
(iii) Director (IB);
(iv) Director, Enforcement;
(v) Director, CBI;
(vi) Chairman, CBDT;
(vii) DG, Narcotics Control Bureau;
(vii) DG, Revenue Intelligence;
(ix) Director, Financial Intelligence Unit; and
(x) JS (FT & TR-I), CBDT be forthwith appointed with immediate effect as a Special
Investigation Team;
(ii) That the Special Investigation Team, so constituted, also include Director, Research
and Analysis Wing;
(iii) That the above Special Investigation Team, so constituted, be headed by and
include the following former eminent judges of this Court: (a) Hon'ble Mr. Justice
B.P. Jeevan Reddy as Chairman; and (b) Hon'ble Mr. Justice M.B. Shah as Vice-
Chairman; and that the Special Investigation Team function under their guidance and
direction.
Reporting of SIT - The Special Investigation Team so constituted report and be
responsible to Supreme Court, and that it shall be charged with the duty to keep the
Court informed of all major developments by the filing of periodic status reports, and
following of any special orders that this Court may issue from time to time;
2. Violation of Right to privacy – Right to privacy is an integral part of right to life. This
is a cherished constitutional value, and it is important that human beings be allowed
domains of freedom that are free of public scrutiny unless they act in an unlawful
manner.
The revelation of details of bank accounts of individuals, without establishment of
prima facie grounds to accuse them of wrong doing, would be a violation of their rights
to privacy. Details of bank accounts can be used by those who want to harass, or
otherwise cause damage, to individuals.
3. Balance between Right to Privacy and Right to petition - The response has to
necessarily be a more emphatic assertion of those values, both in terms of protection of
an individual's right to privacy and also the protection of individual's right to petition

162
this Court, under Clause (1) of Article 32, to protect fundamental rights from
evisceration of content because of failures of the State. The balancing leads only to one
conclusion: strengthening of the machinery of investigations, and vigil by broader
citizenry in ensuring that the agents of State do not weaken such machinery.
4. Direction for disclosure of information - The Union of India shall forthwith disclose
to the Petitioners all those documents and information which they have secured from
Germany, in connection with the matters discussed above, subject to certain conditions.
DU LL.B Unknown
Question 8 (b) – There was amassing of illicit wealth by Chief Minister and Ministers of a
State of Jharkhand. This money was unprecedented amount, however there was no clear
allegation of its laundering. But it led to investment in property, etc. The matter was referred
to the CBI for investigation which was opposed by the accused persons pleading it to be the
exclusive domain of the Enforcement Directorate. Decide.
Answer – Answer of this question depends upon the ratio of Binod Kumar v. State of
Jharkhand.
Crux of Case
Case was registered under IPC, 1860 and PC Act, 2002 against former Chief Minister and
Ministers on the direction of Special Judge (Vigilance). CBI started investigation. This case
was registered for misusing public office and getting huge unaccounted money and investing
in multi-states and multi-nationals. Investigation by CBI was challenged in Jharkhand High
Court through Writ Petition. The High Court dismissed writ petition. In this case, Supreme
Court upheld the decision of High Court and held that CBI can make investigation in such
cases. Reason of decision of the case was that there was no involvement of money
laundering.
Binod Kumar v. State of Jharkhand140

(Unaccounted money, but there was no laundering of the money)
Date of Judgment - March 29, 2011
 Hon’ble Justice Dalveer Bhandari
 Hon’ble Justice Deepak Verma
Summary
 Facts
 Issues
 Statutory Provisions
1. IPC
Sections 409, 420, 423, 424, 465, 120-B of IPC
2. PC Act, 1988
Sections 7, 10, 11, 13(2) read with Section 13(1) (e)
140
This judgment is available at : https://main.sci.gov.in/judgment/judis/37801.pdf (Last visited on November 25,
2020)

163
3. PML Act, 2002

Section 2, Section 45 (1A)141
 Decision of High Court
 Decision of Supreme Court
 Conclusion
Facts
The basic allegation is amassing of illicit wealth by various former Ministers, including a
former Chief Minister of the State. The money alleged to have been so earned is of
unprecedented amounts. However, there is no clear allegation so far about its laundering in the
sense mentioned above, but there is an allegation of its investment in property, shares etc. not
only in India but also abroad.
The basic investigation requires determining whether money has been acquired by an abuse of
the official position amounting to an offence under the Prevention of Corruption Act and
under the Indian Penal Code, the persons by whom this has been done, the amount which has
been so earned and places where it has been invested.
The amount is alleged to run into several hundred crores. The investigations done so far allege
that the amount unearthed so far in one case is about one and a half crore and in another case
is about six and a half crores, which would appear to be merely the tip of the iceberg. The
investments having been made not only in various States of the country outside the State of
Jharkhand, but also in other countries means that the investigation called for is not only multi-
state but also multi-national.
The matter on the face of it requires a systematic, scientific and analysed investigation by an
expert investigating agency, like the Central Bureau of Investigation. It is incorporated in the
affidavit that 32 companies have to be investigated and the money acquired by illegal means
being invested in Bangkok (Thailand), Dubai (UAE), Jakarta (Indonesia), Sweden and
Libya. It is also mentioned that there are several companies in other countries in which there
are huge investments by the accused or with the help of their accomplices in foreign countries.
The list of countries and companies indicate prima facie that the amount involved could not be
a mere few crores, but would be nearer a few hundred crores.
Special Judge (Vigilance) Ranchi - The Vigilance P.S. Case No.09/2009 dated 02.07.2009 is
instituted inter alia alleging commission of offence under sections 409, 420, 423, 424, 465,
120-B of IPC and Sections 7, 10, 11, 13(2) read with Section 13(1)(e) of the Prevention of
The said complaint was registered on directions of the Special Judge, Vigilance, Ranchi, who
exercised powers under Section 156(3) of the Cr.P.C. It named Shri Madhu Koda, former Chief
Minister, Shri Kamlesh Singh, former Minister, Shri Bhanu Prasad Shah, former Minister and
Bandhu Tirky, former Minister of Jharkhand. During the course of investigation into the said
141
Section 45 (1A) - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),
or any other provision of this Act, no police officer shall investigate into an offence under this Act unless
specifically authorised, by the Central Government by a general or special order, and, subject to such conditions
as may be prescribed.

164
complaint by the Vigilance, P.S., State of Jharkhand, involvement of the appellant Binod
Kumar Sinha had surfaced. The FIR also contains clear allegations against the appellant.
ISSUES
1. Whether CBI can make investigation of these facts?
Answer – Yes.
2. Whether ED can make investigation of these facts?
Answer – No.
DECISION OF HIGH COURT
PIL was filed in High Court in 2008. High Court decided the case on 04.08.2010. Division
Bench of the High Court referred the matter to the Central Bureau of Investigation. The High
Court also observed that the Central Government should exercise the powers under section
45(1A) of the Prevention of Money Laundering Act, 2002 (for short “the PML Act”) for
transferring investigation from the Enforcement Directorate to the CBI. Against this judgment,
appeal was filed in Supreme Court.
SUPREME COURT
ARGUMENTS OF APPELLANT
There were following arguments of appellant before Supreme Court -
 Investigation u/PMLA only by ED - According to the learned counsel for the
appellant, the offence of money laundering, under section 4 of the PML Act may be
investigated only by the Enforcement Directorate and tried only by the Special Court
under the Act.
 PMLA is complete - Mr. Venugopal submitted that the PML Act is a self -contained
Code while the Act constituting the CBI is limited.
 PMLA was enacted under Article 253 - Mr. Venugopal submitted that the PML Act
was enacted pursuant to Article 253 of the Constitution and would prevail over any
inconsistent State enactment.
 ED has wider powers including international nexus - The ED is empowered
internationally to trace the proceeds of crime, with great freedom accorded to the ED
when the nexus is established with a contracting state. The CBI does not possess such
an advantage.
 CBI cannot interfere in the affairs of ED - Mr. Venugopal further submitted that in
the light of section 45 (1A) read with sections 43 and 44 of the PML Act, the CBI has
no authority to investigate the offences which are the sole domain of the Enforcement
Directorate.
Arguments of Respondent
There are following arguments of respondent -

165
1. Cases are under IPC and PC Act rather than PMLA – Cases against suspected
persons were registered under IPC and PC Act. Investigation under these laws cannot
be conducted by Directorate of Enforcement. ED can conduct Investigation
2. No restriction - Since there is no provision restricting the investigation of offence other
than that of money laundering by any appropriate investigating agency.
3. No question laundering of money. Here question is only earning of money by
misuse of office - Mr. Raval submitted that the money alleged to have been so earned is
of unprecedented amounts. It is further recorded that, however, there is no clear
allegation so far about its laundering of money in the sense mentioned in the PML
Act. It is further observed that there is an allegation of his investment in the property,
shares etc. not only in India, but, also abroad. Having so observed it is recorded that
therefore the basic investigation requires determining whether money has been acquired
by abuse of official position amounting to an offence under the Prevention of Corruption
Act and under the Indian Penal Code and persons by whom the same has been done the
amount of money which has been so earned and the places where it has been invested.
I have written crux of judgment in lucid manners. If anyone wants to read conclusion of
original judgment, he or she may read paras 46 and 47 of original judgment. There are
following crux of judgment.
1. The investigation under the PML Act is solely and exclusively within the
jurisdiction and domain of the Enforcement Directorate, which is of course
subject to the exercise of powers by the Central Government under Section 45
(1-A) of the said Act.
2. In this case CBI is investigating offences under IPC and PC Act, 2002. CBI is
not investigating offences under PMLA, 2002. So there is no interference in
arena of ED.
3. Facts of the cases related to corruption. In this case, there are corruption cases,
but there is no involvement of laundering cases. There is difference between
getting money through corruption and laundering money through corruption.
4. Investigation CBI is justified. Decision of High Court is good.
5. There is no substance of in appeal. So appeal is being dismissed.
CONCLUSION
In this case (2011) there was only one issue regarding investigating agency. After this case CBI
completed its investigation and submitted its report. In this case there was no involvement of
conviction or acquittal of any accused. Mr. Madhu Koda was convicted in another case in 2017.
ED has power to investigate offences under PMLA, 2002. But this information has not been
mentioned under PMLA, 2002. For this, you have to read notification issued by Government
by using power given under section 49 (1).142 Under Section 45 (1A) Government has power
to authorise any agency to investigate offences under PMLA, 2002.
142
This Notification is available at: https://dea.gov.in/sites/default/files/moneylaunderingrule.pdf (November 25,
2020)

166
ONLY FOR KNOWLEDGE

Mr. Koda was appointed the Chief Minister of the State of Jharkhand in September 2006. He
continued to hold the said office till 23.08.2008. He resigned from post of Chief Minister. Mr.
Koda was held guilty, by a trial court in 2017, of corruption and conspiracy in the allocation of
a Jharkhand-based coal block to Kolkata-based company Vini Iron and Steel Udyog Ltd
(VISUL).
PUBLISHED IN THE GAZETTE OF INDIA (EXTRAORDINARY), PART- II SECTION
3, SUB SECTION (i)143
Government of India
Ministry of Finance
Department of Revenue
New Delhi,
the 1st July, 2005
Asadha 10, 1927 (SAKA)
NOTIFICATION G.S.R. 440(E).-
In exercise of the powers conferred by sub-section(1) of section 49 of the Prevention of

Money-laundering Act, 2002 (15 of 2003), the Central Government hereby appoints,
with effect from the 1st day of July, 2005, the Director of Enforcement holding office
immediately before the said date under the Foreign Exchange Management Act, 1999
(42 of 1999), as the Director to exercise the exclusive powers conferred under section 5,
section 8, section 16, section 17, section 18, section 19, section 20, section 21, sub-
section (1) of section 26, section 45, section 50, section 57, section 60, section 62 and
section 63 of the said Act and the said Director shall also concurrently exercise powers
conferred by sub-section (3), sub-section (4) and sub-section (5) of section 26, sec tion
39, section 40, section 41, section 42, section 48, section 49, section 66 and section 69
of the afore-said Act.
F.No.6/2/2005-E.S.
(V.P.Arora)
Under Secretary to the Govt. of India
143
This Notification is available at: https://dea.gov.in/sites/default/files/moneylaunderingrule.pdf (November
25, 2020)

167

2015
Question 8 (c) – ‘Adjudication’ under the Prevention of Money –Laundering Act, 2002.
2016 (May be)
Question 6 (a) Explain in detail the law relating to the ‘attachment of property involved in
money laundering under Prevention of Money Laundering Act, 2002.
2017
Question 7 (a) Explain in detail the law relating to ‘Adjudication’ under the ‘Prevention of
Money-Laundering Act, 2002.
2018 (May be)
Question 5 (a) – Explain in detail the procedure of Adjudication by Adjudicating authorities
under Section 8 of the Prevention of Money Laundering Act, 2002.
(C) - Special Courts and their powers under Chapter VII of the Prevention of Money
Laundering Act, 2002.
Ramaraju v. Union of India

(Satyam Computer Scam Case)
Date of Judgment – March 04, 2011
Court – Andhra Pradesh High Court
Abstract -
In this case, attachment of property and its adjudications are involved. There are two types of
attachment namely (1) Provisional attachment (Section 5. Section 8 deals its adjudication) and
Final attachment. In this case, Section 2 (1) (u) [Meaning of Proceeds of Crime], 5, 8, 23 and
24 of PMLA were challenged on the basis of violation Articles 14, 20, 21 and 300A of
Constitution of India. Six issues (A to F) were framed and replied by Court. Supreme Court
rejected all arguments and held that all these provisions are constitutional.
Facts
 January 07, 2009 (Confession and resign) - After the confession by Sri. B. Ramalinga
Raju on 7.1.2009, the share price of Satyam Computer Services Limited [for short the
SCSL] fell drastically and a large number of investors suffered huge financial losses.
 FIR by CBI - CBI registered FIR under Section 120-B read with Sections 406, 420,
467, 471, 477-A of the IPC. Charge-sheet was submitted by CBI. The designated Court
after considering the charge-sheet has taken cognizance of the offence.
 ECIR by ED - The Enforcement Directorate registered an Enforcement Case
Information Report [ECIR], under PML Act, 2002 against Sri. B. Ramalinga Raju and
others since the FIR reveals information as to the commission of a scheduled offence
i.e, under Section 467 IPC. The investigation under the Act reveals commission of a
scheduled offence and generation of proceeds of crime thereby. Hence initiation of
proceedings both for prosecution and for attachment and for subsequent proceedings,

168
against persons accused of committing scheduled offences and for attachment and
confiscation of the proceeds of crime against the accused and others in possession of
proceeds of crime, is valid.
 Provisional Attachment Order - The Deputy Director, Enforcement, passed the
provisional attachment order dated 18.8.2009, purportedly under Section 5 of the Act,
in respect of movable properties comprising the shares of M/s SRSR Holdings Ltd., in
M/s Satyam Computer Services Ltd., and 287 immovable properties of various
companies and persons including the petitioner. The petitioner's immovable properties
enumerated at SI. Nos. 246 to 251 in the table of immovable properties in the order
were provisionally attached.
 Application to Adjudicating Authority - The Deputy Director, Enforcement, filed
Application No. 38/2009 on 15.9.2009 before the Adjudicating Authority against 132
defendants.
 Notice issued by Adjudicating Authority- Adjudicating Authority issued notice to
all accused on 15.9.2009,
 Writ petition to High Court - The petitioner and some other defendants filed WP No.
27058/09 challenging the Adjudicating Authority's notice dated 15.9.2009 and the order
dated 20.11.2009.
Attachment of 'Proceeds of Crime'
Provisional Final attachment

Attachment
By decison of Special
Attachment by Director or Deputy Director Court -
- Section 5 (Maximum Time 180 days)
Confirmation of 'Provisional Attachment' by Section 8 (5) and (7)

Adjudicating Authority - (Max. Time - 365
Days) Section 8
Section 58 B
Section 60 (2A)

169
Issues and its replies by High Court

On the basis of rival pleadings, contentions and the material on record, the following issues
were formulated and its answers were provided. These are following -
Issue: (A) Answer

 Whether property of third person  Yes
is liable to attachment?  No.
 Is Section 2 (1) (u) invalid?
Whether property owned by or in YES & NO - Property owned or in possession
possession of a person, other than a person of a person, other than a person charged of
charged of having committed a scheduled having committed a scheduled offence is
offence is liable to attachment and equally liable to attachment and confiscation
confiscation proceedings under Chapter- proceedings under Chapter-III; and Section
III and if so whether Section 2(1)(u) which 2(1) (u) which defines the expression
defines “proceeds of crime” broadly, is “Proceeds of Crime”, is not invalid;
invalid?
Issue: (B) Answer
Is Amendment in Section 5 applicable to Yes
retrospective effects?
Whether provisions of the second proviso The provisions of the second proviso to
of Section 5(1) [incorporated by the 2nd Section 5 are applicable to property acquired
amendment Act -w.e.f 6.3.2009] are even prior to the coming into force of this
applicable to property acquired prior to provision (vide the second amendment Act
enforcement of this provision and if so, with effect from 6.3.2009); and even so is not
whether the provision is invalid for invalid for retrospective penalisation.
retrospective penalisation?
Issues: (C) & (D) Answer of Issues : (C) & (D)
Whether Section 8 is invalid on the No.
grounds of vague & exclusion of mens
rea?
Issue: (C) Whether the provisions of The provisions of Section 8 are not invalid for
Section 8 are invalid for vagueness; vagueness; incoherence as to the onus and
incoherence as to the onus and standards standard of proof; ambiguity as regards criteria
of proof; ambiguity as regard criteria for for determination of the nexus between a
determination of the nexus between a property targeted for attachment/confirmation
property targeted for attachment and the offence of money-laundering; or for
/confirmation and the offence of money- exclusion of mens rea/ knowledge of
laundering; and for exclusion of mens criminality in the acquisition of such property;
rea/knowledge of criminality in the Section 8(4), which enjoins deprivation of
acquisition of such property? possession of immovable property pursuant to
Issue: (D) Whether Section 8(4) is invalid an order confirming the provisional attachment
for enjoining deprivation of possession of and before conviction of the accused for an
immovable property even before offence of money-laundering, is valid.
conclusion of guilt/conviction in the
prosecution for an offence of money-
laundering?

170
Issue: (E) Answer

Is Section 8 invalid? Section 23 is valid.
Issue: (E) Whether the presumption The presumption enjoined in cases of
enjoined by Section 23 is unreasonably interconnected transactions enjoined by
restrictive, excessively disproportionate Section 23 is valid;
and thus invalid?
Issue: (F) Answer
Whether shifting/imposition of the burden The burden of proving that proceeds of crime
of proof, by Section 24 is arbitrary and are untainted property is applicable not only to
invalid; is applicable only to the trial of an prosecution and trial of a person charged of
offence under Section 3; not to committing an offence under Section 3 but to
proceedings for attachment and proceedings for attachment and confiscation -
confiscation of property under Chapter- in Chapter III of the Act as well; but only to a
III; and in any case not in respect of a person accused of having committed an
person not accused of having committed offence under Section 3. The burden enjoined
the offence under Section 3? by Section 24 does not inhere on a person not
accused of an offence under Section 3. The
presumption under Section 23 however applies
in interconnected transactions, both to a person
accused of an offence under Section 3 and a
person not so accused.
Issue (A)
Argument of Petitioner - The core contention on behalf of the petitioners is that property in
ownership, control or possession of a person not charged of having committed a scheduled
offence would not constitute proceeds of crime, liable to attachment and confiscation
proceedings, under Chapter III of the Act.
Judgment of Supreme Court – Supreme Court observed that argument of petitioner is based
on misconception of interpretation. Supreme Court observed following important points -
 Two Stes of Proceeding under PMLA - Against transactions constituting money
laundering, the provisions of the Act contemplate two sets of proceedings; (a)
prosecution for the offence of money-laundering defined in Section 3 with the
punishment provided in Section 4; and (b) attachment, adjudication and confiscation in
the sequential steps and subject to the conditions and procedures enumerated in Chapter
III of the Act.
Two Sets of proceeding
Punishment Attachment, Adjudication & Confiscation

- Chpater II [ Sections 3 & 4] - Chapter III [ Section 5 - 11A]
 First set of proceeding - Section 2 (p) defines the expression “money- laundering” as
ascribed in Section 3. Section 3 defines the offence of Money- Laundering in an
expansive locus as comprehending direct or indirect attempt to indulge; assist, be a
party to or actually involved knowingly in any process or activity connected with the
proceeds of the crime and projecting it as untainted property. On proof of guilt and
conviction of the offence of Money-Laundering, the punishment provided in Section 4
of the Act would follow after a due trial by the Special Court; which is conferred

171
exclusive jurisdiction qua Section 44, Chapter VII of the Act. The prosecution, trial and
conviction for the offence of money-laundering are the criminal sanction administered
by the Legislation and effectuated by a deprivation of personal liberty as a disincentive
to a malfeasant.
 Second set of proceeding - The second matrix of proceedings targets the “proceeds of
crime” defined in Section 2 (1)(u); as any property derived or obtained, directly or
indirectly, by any person as a result of criminal activity relating to a scheduled offence
or the value of any such property, for initial attachment and eventual confiscation.
Chapter III deals this part.
 Chapter III - Chapter III of the Act enables the specified authority, if he has reasons
to believe [the reasons to be recorded in writing], on the basis of material in possession
of the authority that any person charged of having committed a scheduled offence
[Section 5(1)(b)] or even if not so charged [second proviso to Section 5(1)] is in
possession of proceeds of crime and such proceeds are likely to be concealed,
transferred etc., in a manner as may frustrate any proceeding relating to confiscation of
such proceeds of crime under Chapter III, to provisionally attach [Section 5(1)];
confirm an order of provisional attachment after a process of adjudication [Section
8(3)]; and eventually pass an order confiscating such property [Section 8(6)].
On the afore-stated scheme the provisions of the Act, the prosecution under the Act;
and attachment and eventual confiscation proceedings are distinct proceedings.
 Two sets of proceedings against same person - These two sets of proceedings may be
initiated against the same person if he is accused of the offence of money-laundering.
 Proceeding against person other than accused - Even when a person is not so
accused, the property in his possession may be proceeded against for attachment and
confiscation, on a satisfaction by the appropriate and competent authority that such
property constitutes proceeds of crime.
Both sets of proceeding are constitutional

High Court concluded that the provisions of the Act which clearly and unambiguously enable
initiation of proceedings for attachment and eventual confiscation of property in possession of
a person not accused of having committed an offence under Section 3 as well, do not violate
the provisions of the Constitution including Articles 14, 21 and 300-A and are operative
proprio vigore.
Mens Rea and Money-laundering

High Court observed that while the offence of money-laundering comprises various degrees of
association and activity with knowledge and information connected with the proceeds of crime
and projection of the same as untainted property; for the purposes of attachment and
confiscation (imposition of civil and economic and not penal sanctions) neither mens rea nor
knowledge that a property has a lineage of criminality is either constitutionally necessary or
statutorily enjoined.
Process of Money-laundering
A money laundering transaction usually involves three stages: (i) The placement stage: The
malfeasant places the crime money into the normal financial system; (ii) The layering stage:
The money induced into the financial system is layered—spread out into several transactions
within the financial system with a view to concealing the origin or original identity of the
money and to make this origin/identity virtually disappear; and (iii) The integration stage:
The money is thereafter integrated into the financial system in such a way that its original

172
association with crime is totally obliterated and the money could be used by the malfeasant
and/or the accomplices to get it as untainted/clean money.
Presumption [Section 23] and burden of prove [Section 24]
Section 24 inheres on a person accused/charged of having committed an offence under Section
3, the burden of proving that proceeds of crime are untainted property. Section 23 of the Act
enjoins a presumption in inter-connected transactions that where money-laundering involves
two or more inter-connected transactions and one or more of such transactions is or are proved
to be involving in money-laundering, then for the purposes of adjudication or confiscation
under Chapter III, the Act enjoins a rebuttable presumption that the remaining transactions
form part of such interconnected transactions. From the scheme of the provisions of the Act, it
is apparent that, a person accused of an offence under Section 3 of the Act whose property is
attached and proceeded against for confiscation must advisedly indicate the sources of his
income, earnings or assets, out of which or means by which he has acquired the property
attached, to discharge the burden (Section 24) that the property does not constitute proceeds of
crime. Where a transaction of acquisition of property is part of interconnected transactions, the
onus of establishing that the property acquired is not connected to the activity of money-
laundering, is on the person in ownership, control or possession of the property, though not
accused of a Section 3 offence, provided one or more of the interconnected transactions is or
are proved to be involved in money-laundering (Section 23).
Money-laundering is threat to financial systems of countries and to their integrity and
sovereignty
In the context of the fact that money-laundering is perceived as a serious threat to financial
systems of countries across the globe and to their integrity and sovereignty as well; in view of
the fact that targeting the proceeds of crime and providing for attachment and confiscation of
the proceeds of crime is conceived to be the appropriate legislative strategy; and given the
several safeguards procedural and substantive alluded to hereinbefore, we are not persuaded to
the view that attachment and confiscation of property constituting proceeds of crime in the
possession of a person not accused/charged of an offence under Section 3 constitutes an
arbitrary or unconstitutional legislative prescription.
Object of the Act
The object of the Act is to prevent money - laundering and connected activities and confiscation
of "proceeds of crime" and preventing legitimising of the money earned through illegal and
criminal activities by investments in movable and immovable properties often involving
layering of the money generated through illegal activities, i.e, by inducting and integrating the
money with legitimate money and its species like movable and immovable property. Therefore,
it is that the Act defines the expression "proceeds of crime" expansively to sub-serve the broad
objectives of the Act. It is immaterial how relatives got money whether they have knowledge
or not. If there properties comes under ‘Proceeds of crime’, properties will be attached and
confiscated.
Supreme Court
B. Rama Raju v. Union of India, (2011 AP High Court) judgment is presently under challenge
before Supreme Court as Special Leave to Appeal (C) No. 28394/2011 titled as B. Rama Raju
v. Union of India and is pending for arguments along with a batch of other petitions.

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Socio-Economic Offences

KRISHNA MURARI YADAV

Krishna Murari Yadav

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – 1, University of Delhi

DEDICATED TO MY BROTHER & EARTHLY GOD

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – 1, University of Delhi

S. Nos. Acts Pages

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Krishna Murari Yadav,

Previous Years Question Papers

EVOLUTION OF SOCIO-ECONOMIC OFFENCES

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Emergence of socio-economic offences

Definition of White-collar Crime and Sutherland

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Crime must be related to

Definition of White-collar Crime and Arnold

47th Report of Law Commission of India [1972]

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Salient Features of Socio-economic offences

Differences between Socio-economic offences and Traditional Offences

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There are following differences between both –

Burden of proof Burden of proof on accused Burden of proof on prosecutor

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material welfare of the community

Intersecting Socio-economic offences and Socio-economic offences and

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Answer – “Differential Association” theory was propounded by Sutherland. He was searching

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Krishna Murari Yadav, Assistant Professor, LAW CENTRE – 1, University of Delhi

(2) FOREIGN EXCHANGE AND REGULATION ACT, 1947

(3) IMMORAL TRAFFIC PREVENTION ACT, 1956

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Section 24 inheres on a person accused/charged of having committed an offence under Section

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TOPIC 2: THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956

Leading Cases on this topic

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Vishal Jeet v. Union of India & Ors.16

5. Declaration of the Rights of the Child, 1959

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Observation of Supreme Court

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SUPPRESSION OF IMMORAL TRAFFIC IN WOMEN & GIRLS ACT, 1956

International To bring uniformity in

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – 1, University of Delhi

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – 1, University of Delhi

(a) the measures to be taken in eradicating the child prostitution, and

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – 1, University of Delhi

LEGAL STATUS OF PROSTITUTION IN INDIA21

Minor Women/ Girl Major Woman

With her consent, With her consent

Illegal/ Offence Legal/ No offence

Krishna Murari Yadav, Assistant Professor, LAW CENTRE – 1, University of Delhi