WCC Notes Murari Sir

Socio-economic Offences
(Unit -1 to Unit 6)
4/3/2022
Krishna Murari Yadav, LAW CENTRE-1,

Assistant Professor, FOL, DU
1
UNIT -1
INTRODUCTION TO THE SOCIO-ECONOMIC OFFENCES
Krishna Murari Yadav,

Assistant Professor,
LAW CENTRE – 1, FOL
University of Delhi, Delhi.
SOCIO-ECONOMIC OFFENCES
Abstract
Socio-economic offences are increasing day by day. These offences are like cancer for country.
It is very dangerous for development of nation. Many laws have been enacted to deal these
offences. It covers new offences. These offences are different from „Traditional Offences‟ in
context of scope and manner of commission of offences. Socio-economic offences are wider than
„White-collar Crimes‟. Whenever maxim „actus non facit reum, nisi mens sit rea‟ is applied, it
favours to accused. But when this maxim is not applied, it favours prosecutors. In this paper,
evolution of socio-economic offences, differences between socio-economic offences & white
collar crimes and application of maxim „actus non facit reum, nisi mens sit rea‟ in socio-
economic offences will be discussed.
Key Words
White-Collar Crimes, Socio-economic Offences, Blue Crimes, Traditional Offences, Mens Rea.
EVOLUTION OF SOCIO-ECONOMIC OFFENCES
Socio-economic offences were being committed since ancient period. But it was not discussed
separately. It was covered under traditional offences. It was become part of discourse in 18 th
Century.
There are following steps of evolution of socio-economic offences –
(1) Eighteenth Century -
According to 29th Report of LCI, ―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. Industrialization was another reason. But the varieties of such crimes and
their diverse manifestations were seen more acutely after the First World War.‖1
(2) After First World War -
1
Law Commission of India, Report 29, 1966, ―Proposal to include Certain Social and Economic
Offences in the Indian Penal Code‖, Para 13. Available at:
https://lawcommissionofindia.nic.in/1-50/Report29.pdf (Visited on December 19, 2021).
Krishna Murari Yadav, Assistant Professor, LAW CENTRE-1, University of Delhi
2
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 goods especially grain. Hoarding of grains and
its supplies in market was big issue. Corruption was another problem.
(3) Independence of India
Development of Socio-economic offences can be discussed with the help of following points -
(i) Statutes - 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, ITPA, 1956,
NDPS Act, 1985, Prevention of Corruption Act, 1988, Prevention of Money-laundering Act,
2002 etc.
(ii) Court - Several cases were decided in which mens rea was excluded as essential ingredient
of crime. In The Indo-China Steam Nevigation Co. Ltd. v. Jasjit Singh2 Supreme Court at the
time of interpretation of Section 52-A of the Sea Customs Act, 1878 said that is provision is
silent, there is no need to require mens rea. Such cases must be interpreted strictly. Such cases
may rudely affect economy of the country. In State of Maharashtra v. M.G.George3 Supreme
Court convicted accused under Foreign Exchange and Regulation Act, 1947 (FERA, 1947) even
without mens rea. In the case of Noormohmed Jamalbhai Latiwala v. State of Gujarat 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 fiber of the country‟s economic structure.
These cases are nothing but private gain at the cost of public, and lead to economic disaster.”
In the present case also, if not national interest, but in view of the rampant white collar crimes in
the field of cooperative banking business of the State, it can hardly be denied that it has
adversely affected the economic conditions of the public at large in general and the class of
depositors in particular whose life saving money is either deposited or whose livelihood is
dependent on the income of interest.
(iii) Committee and Commission
Santhanam Committee submitted its Report in 1964. The 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 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.
There are few reports which also contributed in development of socio-economic offences. These
are –
2
AIR 1964 SC 1140. Date of Judgment: February 03, 1964.
3
AIR 1965 SC 722. Date of Judgment: August 24, 1964.

3
1. Santhanam Committee Report [1964]

2. Law Commission of India, 29th Report [1966]
3. Law Commission of India, 47th Report [1972]
IMPORTANT COMMITTEES & COMMISSIONS

With the help of following reports, socio-economic offences can be discussed properly -
(1) Santhanam Committee Report4 (Pages 53 and 54) [1964]
(2) Law Commission of India, 29th Report (Proposal to include certain social and economic
offences in the Indian Penal Code)5 [1966]
(3) Law Commission of India, 47th Report [1972]
(1) Santhanam Committee Report6 (1964)
[Social Offences] [Pages 53 & 54]
Summary
(a) Emergence of socio-economic offences

(b) Examples of white-collar crime
(c) Categories of Socio-economic offences
(a) 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 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.
(b) Examples of white-collar crime
Santhanam Committee observed, ―
4
This Report is available at: https://cvc.gov.in/sites/default/files/scr_rpt_cvc.pdf (Visited on
November 29, 2020)
5
29th Report is available at: https://lawcommissionofindia.nic.in/1-50/Report29.pdf (Visited on
November 29, 2020)
6
This Report is available at: https://cvc.gov.in/sites/default/files/scr_rpt_cvc.pdf (Visited on
November 29, 2020)
4
 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‖.
(c) Categories of Socio-economic offences
Santhanam Committee recommended amending 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.
There are certain social 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.7
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]
7
Santhanam Committee Report, (Committee on Prevention of Corruption), Para 7.3, Pages 53
and 54, 1964.

5
[Para 1.6, 47th Report, LCI]
(2) Law Commission of India, 29th Report, 1966

―Proposal to include certain social and economic offences in the India Penal Code‖
Summary
(a) History of White Collar Crime
(b) Definition of White-collar Crime and Sutherland
(c) Definition of White-collar Crime and Arnold
(d) Kinds of crimes (White-collar crime and Blue collar crime)
(a) 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.‖
(b) Definition of White-collar Crime and Sutherland

Earlier it was presumed that crimes 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”.8 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 exclude crimes like murder, adultery and intoxication, even if committed by people of the
upper class, since these have nothing to do with their occupation.
Definition of WCC
by Sutherland
Two ingredients
Crime must be related to

Crime committed by upper class
his/her/their occupation
(c) Definition of White-collar Crime and Arnold
8
Edwin H. Sutherland, White Collar Crime. (1949), pp.9-10.
6
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.
(d) 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].
(3) 47th Report of Law Commission of India [1972]9

―The Trial and Punishment of social and economic Offences‖
Summary
(a) Definition[Paras 1.8 & 1.9]
(b) Social Offences
(c) Economic Offences
(d) Intersecting circles
(e) Salient Features of Socio-economic offences [Paras 1.4 & 1.5, Page 2]
(a) 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‘.
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.
(b) 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.
(c)Economic Offences - Economic Offences are those offences which affect the country‘s
economy and not merely the wealth of an individual victim.
(d) 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.
9
47th Report of Law Commission of India [1972] is available at:
https://lawcommissionofindia.nic.in/1-50/Report47.pdf (Visited on December 19, 2021).
7
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 avarice10 or rapaciousness11 (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.
10
Avarice means extreme greed for wealth or material gain.
11
Rapaciousness means having or showing a strong or excessive desire to acquire money or
possess things.
8
DIFFERENCES BETWEEN SOCIO-ECONOMIC OFFENCES AND TRADITIONAL

OFFENCES
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 convicted Generally, Actus non facit
even without mens rea. reum, nisi mens sit rea is
State of Maharashtra v. M.H. followed.
George
Presumption Presumption of guilt is rule. Presumption of innocence is
1. Sections 35 & 54, NDPS Act, rule.
1988 [Malimath Committee]
2. Section 24, PML Act, 2002
Burden of proof Generally, burden of proof lies Generally, burden of proof lies
over accused over prosecutor
1. Section 68J, NDPS Act, 1988
2. Section 35, NDPS Act deals
rebuttable presumption. Accused
may rebut this presumption.
3. Section 24, PML Act, 2002
Victim Here generally victim is whole Here generally victim is
State of Gujarat v. nation or at mass level. It damages individual or group.
Mohanlal Jitamalji to the national economy and
Porwal & Anr. national interest.
Heat of passion It is committed with cool mind. It may be committed either
State of Gujarat v. with cool mind or heat of
Mohanlal Jitamalji passion
Porwal & Anr.
Mode of operation Mode of operation of the offender Mode of operation of the
is generally fraud, not force. offender is generally force.
[47th Report]
Motive Motive of the criminal is avarice12 Here, generally, motive
or rapaciousness13 (not lust or becomes lust or hate.
hate).
[47th Report of LCI].
12
Avarice means extreme greed for wealth or material gain.
13
Rapaciousness means having or showing a strong or excessive desire to acquire money or
possess things.
9
DIFFERENCES BETWEEN SOCIO-ECONOMIC OFFENCES AND WCC
Socio-economic offences and white-collar crimes could be intersecting circles. 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
his occupation. by a person of respectability and
Social offences – Social offences are high social status in the course of
offences which affect health or his occupation”.14
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 47th Examples quoted by LCI in its
Report 47th Report
Examples 1 A person who illegally smuggles (for A manufacturer of drugs who
his personal use) costly television deliberately supplies sub-standard
sets, is not ‗White-collar criminal in drug is a white collar criminal.
the above sense, there being no Remark – This is also socio-
connection between his occupation economic offences.
and the crime committed by him. It
is only socio-economic offences.
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. It is only socio-economic fraudulently is ‗White-collar
offences. 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.
14
Edwin H. Sutherland, White Collar Crime. (1949), pp.9-10.
10
OFFENCE
Socio-
econom
ic
Offence
White
-collar
Crime
Scope It is wider It is narrower.

Criminal Criminals may be from high or lower Criminals are from high society.
society. Here both rich and poor can Here only rich commit white-
commit socio-economic offences. collar crime.
―DIFFERENTIAL ASSOCIATION THEORY‖
The term ―white collar crime‖ was coined by Edwin Sutherland in a speech to the American
Sociological Society in 1939. Subsequently, he stated that it ―may be defined approximately as a
crime committed by a person of respectability and high social status in the course of his
occupation.‖15
―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 becomes criminal. He did not discuss why a person becomes
criminal.
Underline assumption of ‗Differential Association Theory‘ was implicit in early edition of
Sutherland‘s (1933) Textbook, made explicit in the third edition (1939) and revised into the final
form in fourth edition (1947). Name of his book was ―Principles of Criminology‖ in which he
discussed ‗Differential Association Theory‘. This Theory contains nine assumptions.
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.
15

11
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.
James Short Jr. – ‗Differential Association Theory‘ was supported by James Short Jr. on the
basis of his study of 176 school children (126 Boys and Girls) in 1955.
Criticism of the theory – There are following criticism of this theory –
1. Tappan had criticised for 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. According to Elliot, He explained systematic crimes but failed to discuss situational
crime.
4. He did not discuss why a person becomes a criminals.
5. , स स ,
Some person may be so much strong that outer criminal can‘t affect his life.
Contribution of this Theory – This theory is based on Hindi Poem i.e. ―स स

स स ‖. 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.

12
Socio-economic Offences and Actus Non Facit Reum, Nisi Mens Sit Rea
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
Goddard16 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
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) 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.
16
He is known as ‗Revival of Mens rea‘.
13
STATUTES AND CASES RELATED TO SOCIO-ECONOMIC OFFENCES AND MENS

REA
There are following statutes and cases in which requirement of mens rea was rejected -
(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 and accused was convicted.
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
This is very popular case. There is no need to discuss again. Majority opinion of Supreme Court
convicted accused even without mens rea. Accused was convicted under Foreign Exchange and
Regulation Act, 1947.
(3) IMMORAL TRAFFIC PREVENTION ACT, 1956
Chitan J. Vaswani & Anr v. State of West Bengal & Anr.17
In this cases Section 18 of Immoral Traffic and Prevention Act, 1956 was involved. 18 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.
17
This judgment is available at: https://main.sci.gov.in/judgment/judis/5823.pdf (Visited on
December 6, 2020 )
18
Section 18 – ‗Closure of brothel and eviction of offenders from the premises‘
14
Previous Years Question Papers (LL.B. D.U.)
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 47th
Report of the Law Commission of India, 1972.
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‖.
December 2020 [OBE]
Sutherland asserts that ―in an area where the delinquency rate is high, a boy who is sociable,
gregarious, active, and athletic is very likely to come in contact with other boys in the
neighbourhood, learn delinquent behaviour from them and become a gangster; the psychopathic
boy who is isolated, introverted and inert may remain at home, not become acquainted with other
boys in the neighbourhood, and not become delinquent‖. Do you agree with the instance stated
by Sutherland? Support your answer based on the differential association theory.

15
UNIT-2
THE IMMORAL TRAFFIC (PREVENTION) ACT, 1956
Krishna Murari Yadav

Law Centre-1, FOL,
Delhi University -110007
Introduction
Everyone has right to life with dignities. Immoral traffic is against civilization. Whatever be its
origin and reasons for its survival, be they biological, economical, social or psychological,
prostitution is a practice as old as civilisation. It even came to be associated with devotion and
dedication to Gods, priests and temples.19 Prostitution was going on in many forms including
Devdasi System & Jogin Traditions.20 Many Provinces enacted law to regulate prostitution.21
During the Second World War, immoral traffic became big issues. After Second World War,
United Nations General Assembly discussed on this topic and accepted Convention for the
Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1950.
It came into force on July 25, 1951.22 India signed on this Convention on May 09, 1950.23 Article
2324 of the Constitution of India also prohibits traffic in person.25 Parliament is authorized to
enact law under Article 3526 of the Indian Constitution. By using this power, Parliament enacted
ITPA, 1956.
It is to be noted that neither the International convention nor does Article 23 of the Constitution
refer to ―traffic in women and girls‖. They refer to ―traffic in human beings‖ which would
include all types of sexes. Recently, the Act has been amended by Act 44 of 1986 to cover all
types of sexes.
19
The Immoral Traffic (Prevention)] Act, 1956, ‗Historical background of the Act‘. SCC Online Web Edition:
http://www.scconline.com, EBC Publishing Pvt. Ltd.
20
Vishal Jeet v. Union of India & Ors.
21
Madras Suppression of Immoral Traffic Act, 1930 (This Act was repealed by SITA, 1956).
22
Available at: https://www.ohchr.org/en/professionalinterest/pages/trafficinpersons.aspx (Visited on December 26,
2021).
23
Available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=VII-11-
a&chapter=7&clang=_en (Visited on December 28, 2021).
24
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.
25
Article 23. Prohibition of traffic in human beings and forced labour - (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.
26
Article 35 (a) (ii) - Notwithstanding anything in this Constitution,-
(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws -
(ii) for prescribing punishment for those acts which are declared to be offences under this Part,
and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing
punishment for the acts referred to in sub-clause (ii);

16
There were some provisions in Indian Penal Code, 1860 regarding immoral trafficking, but these
were not sufficient. In pursuance of this International Convention and Constitutional provision,
India enacted ‗The Suppression of Immoral Traffic in Women and Girls Act, 1956‘. The Act
came into force on May 01, 1958. It was renamed ―Immoral Traffic (Prevention) Act, 1956‖ in
1986. In this way scope of the Act was widened.
At the initial stage the Act was gender based i.e. it covered only women and girls. After the
Amendment in 1986, now this Act is neutral law. It covers all persons, whether male or female
who are exploited sexually for commercial purposes.27 Mr. Modi Government tried to substitute
this Act in 201828 & 202129.
Trafficking in human beings is one of the largest organised crime violating basic human rights.
Trafficking in human beings may be for sexual and physical exploitation and also for other forms
of exploitation like forced labour, etc.30 But Immoral Traffic (Prevention) Act, 1956 covers only
those trafficking which have been done only for immoral purposes i.e. for prostitution.
Prostitution is not only social but also a socio-economic problem.31 Prostitution and the
accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with
the dignity and worth of the human person and endanger the welfare of the individual, the family
and the community.32 Prostitution is against right to live with dignities as enshrined in Article 21
of the Constitution of India. There are many organizations of prostitutes which are demanding
basic amenities and implementation of law properly. Many times, these prostitutes are harassed
unnecessary by implementation machinery of laws.
Traffic in person is not new problem. Many provisions of Indian Penal codes were dealing this
issue directly and indirectly. Article 23 of the Constitution of India prohibits traffic in human
being. Supreme Court in Vishal Jeet v. Union of India & Ors.33 observed that „Traffic in Human
beings‟ expression is very wide including prohibition of traffic in women for immoral or other
purposes.
27
Statement of Objects and Reasons of Amendment Act 44 of 1986.
28
The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018. Available at:
https://prsindia.org/files/bills_acts/bills_parliament/2018/The%20Trafficking%20of%20Persons%20(Prevention,%
20Protection%20and%20Rehabilitation)%20Bill,%202018.pdf
29
Available at:
https://wcd.nic.in/sites/default/files/DRAFT%20TRAFFICKING%20IN%20PERSONS%20%28PREVENTION%2
C%20CARE%20AND%20REHABILITATION%29%20BILL%202021%20%281%29.pdf (Visited on December
30, 2021).
30
Statement of Objects and Reasons, The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill,
2018. Available at:
https://prsindia.org/files/bills_acts/bills_parliament/2018/The%20Trafficking%20of%20Persons%20(Prevention,%
20Protection%20and%20Rehabilitation)%20Bill,%202018.pdf
31
Vishal Jeet v. Union of India & Ors
32
Preamble of the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the
Prostitution of Others, 1950. Available at: https://treaties.un.org/doc/Treaties/1951/07/19510725%2010-
37%20PM/Ch_VII_11_a_bp.pdf (Visited on December 28, 2021).
33
This judgment is available at: https://main.sci.gov.in/judgment/judis/7525.pdf (Last visited on August 29, 2020).

17
Constitutional validity of Section 20 of this Act was challenged on the basis of violation of
Article 14 and Article 19. Hon‘ble Supreme Court held that this provision is constitutional.34 In
Kajal Mukesh Singh and Others v. State of Maharashtra (Through the Inspector-in-charge of
Malad Police Station)35 Bombay High Court observed that prostitution is not an offence per se.
Adult woman has right to choose her vocation. Prostitute has right to livelihood. Bombay High
Court passed an order for release of three sex workers from ‗Corrective Institution.
Purpose of the Act
Purpose of the Act is not to criminalize prostitution per se. This Act does not abolish
prostitution. Purpose of this Act is to abolish and criminalize commercialized prostitution.36 It
also establishes ‗Protective Homes‘ for giving protections.37 There is also a provision for
establishment of ‗Special Court‘ for speedy trial.38 There is provision for ‗Trafficking Police
Officer‘ for proper and speedy investigation.39
Important Definitions
There are following important definitions which are necessary explain for proper understanding
of the ITPA, 1956 -
(1) Person
‗Person‘ covers all human being irrespective of his/her/ third gender religion, race, caste, sex,
citizenship or domicile etc. There are three categories of persons on the basis of age –
(a) Child – ―Child‖ means a person who has not completed the age of sixteen years.40
(b) Minor- ―Minor‖ means a person who has completed the age of sixteen years but has
not completed the age of eighteen years.41
(c) Major - ―Major‖ means a person who has completed the age of eighteen years.42
(2) Brothel
Section 2(a) defines ―brothel‖ includes any house, room , conveyance or place or any portion of
any house, room , conveyance or place, which is used for purposes of sexual exploitation or
abuse for the gain of another person or for the mutual gain of two or more prostitutes.
34
The State of Uttar Pradesh v. Kaushaliya and Others , Date of Judgment: October 01, 1963. AIR 1964 SC 416.
35
Date of Judgment: September 24, 2020. Bombay High Court.
36
Poonam Pradhan Saxena, ―Immoral Traffic in Women and Girl: Need for Tougher Laws and Sincere
Implementation‖ 44 JILI 507 (2002).
37
Section 21, ITPA, 1956.
38
Section 22A and Section 22AA, ITPA, 1956.
39
40
Section 2 (aa), ITPA, 1956.
41
Section 2 (cb), ITPA, 1956.
42
Section 2 (ca), ITPA, 1956.

18
Brothel
[Section 2 (a)]
Place for Purpose of
House, room , Any portion of any Sexual

conveyance or house, room , exploitation or Gain
place conveyance or abuse
place
Another person Mutual gain of two or

more prostitutes.
Definition of brothel can be divided into two parts – (i) Place, and (ii) Purpose. Both conditions
must be fulfilled simultaneously.
(I) Place - Place can further be divided between two parts – (a) House, room, conveyance or
place, and (b) any portion of any house, room, conveyance or place. Many students take room for
reading purposes. If they change their object and allowed room for sexual exploitation for gain,
that room will come under definition of brothel. Conveyance means the process or system of
transporting or taking somebody/something from one place to another. Boats come under
definition ‗Conveyance‘. If you go Kashmir, and owner of boat located in Dal Lake provides
girls and allows you to make sexual intercourse in that boat, that boat will come under definition
of brothel. Everyone (he/she/they/you / I/we) has big or small house. Every house can‘t be said
brothel. Only that house will come under definition of brothel which is used for sexual
exploitation with certain purpose. ‗Any portion of house….‘ will also come under definition of
brothel. For example if latrine room/ store room/ warehouse/ godown located outside the house
(Generally in village area) will come under definition of brothel if these are used for specified
purpose as mentioned under Section 2 (a).
(II) Purpose – ‗For purposes of‘ phrase word has been used. Will solitary act will be sufficient
to constitute any place as ‗brothel‘? In Krishnamurthy @ Tailor Krishnan v. Public Prosecutor,
Madras43 Hon‘ble Suprme Court observed, ―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
43
1967 AIR 567; 1967 SCR (1) 586. Available at: https://main.sci.gov.in/judgment/judis/2579.pdf (Visited on
December 29, 2021).

19
sufficient to establish both that the place was being used as a brothel and that the person alleged
was so keeping it‖.
Place must be used for specified purpose. Purpose can be divided between two parts – (a) There
must be sexual exploitation or abuse, and (b) such sexual exploitation or abuse must be for gain.
Gain must be for either another person (who is running brothel etc.) or two or more prostitutes.
Where a single woman practices prostitution for her own livelihood, without another prostitute,
or some other person being involved in the maintenance of such premises, her residence will not
amount to a ―brothel‖.44
If two persons (Gay/Lesbian/ Gigolo/ bisexual/ Man and woman) are enjoying their life in house,
room etc. that place will not come under definition of brothel. For the purpose of definition, there
must be sexual exploitation or abuse for the gain. Gain may be in any form.
Offering body for promiscuous sexual intercourse for hire is sufficient. Sexual intercourse is not
an essential ingredient.45
(3) Prostitution
Section 2 (f) says ―prostitution‖ means the sexual exploitation or abuse of persons for
commercial purpose, and the expression ―prostitute‖ shall be construed accordingly.
Prostitute [Section 2 (f)]
Person (Man/Women/Trans-gender)
Sexual exploitation or abuse For commercial purpose
Women and Girls were substituted by ‗persons‘ by 1986 amendment. ‗Person‘ word includes
man, woman, girl, boy, third-gender. There must be sexual exploitation or abuse for commercial
person. If there is sexual exploitation for the entertainment or enjoyment, that will not amount
‗prostitution‘. That may be other offence like rape, unnatural offence, outrage of modesty etc.
44
In re Ratanmala, AIR 1962 Mad 31.
45
Gaurav Jain v. Union of India, (1997) 8 SCC 114.

20
LEGAL STATUS OF PROSTITUTION IN INDIA46
PROSTITUTION IN INDIA
Minor Women/ Girl Major Woman
Illegal/ Offence Without consent

Reason - Her consent is With consent
Illegal/ Offence
immaterial
With her consent, she is With her consent and

doing such business with she is independent
other person
Legal/ No
Illegal/ Offence offence
(4) Public Place

Section 2 (f) of the Act defines ―public place‖ means any place intended for use by, or accessible
to, the public and includes any public conveyance. A car in own parking will come under private
place. But if car is in public parking or stand in front of Law Faculty, Delhi University, in that
case, car will come under public place.
Salient Features of the Act
There are following salient features of the Act –

(1)Neutral Law - The Immoral Traffic (Prevention) Act, 1956 is applicable to all persons. Many
men and women irrespective of their age are also exploited by other men and women. Earlier this
law was applicable only in case of women and girl when they were victim. It did not cover to
boys. But now if boys are exploited by other boys, men, girl or women, their matters will also
covered under this law. In the definition of prostitution ‗person‘ word has been used. The Act has
been renamed in by 1986 Amendment.
(2) Legal Status of Prostitution - Prostitution is not prohibited. It is only regulated. It can be
said that if anyone is prostitute only for their livelihood, he or she is allowed. But if anyone is
involved for commercial purpose, in that case, it is prohibited. It can be said that organised
commercial prostitution is prohibited. So it can be concluded that in such circumstances, it is
legal, and some other circumstances it is illegal. It depends upon the facts of the case.
46
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.

21
It is gray area. There is need to enact more clear law.
(3) Prohibition of Prostitution near to public place -

Section 7 prohibits prostitution near to public place.47 It is says that in notified area prostitution
can‘t be run. It says that where area is not notified in that circumstances prostitution can‘t be run
within a distance of two hundred metres of any place of public religious worship, educational
institution, hostel, hospital, nursing home or such other public place of any kind as may be
notified in this behalf by the Commissioner of Police or Magistrate.
(4) Protective Home – Protective Home is established to give protection who are in need of
care and protection.48
(5) Police Officer – There are special provisions for constitution of ―Special Police Officer‖ and
―Trafficking Police Officer‖ by State Government and Central Government respectively. These
police officers are appointed for the purpose of proper and speedy action and investigation.
(6) Establishment of ‗Special Courts‘ – State Government49 and Central Government50 can
establish Special Court for speedy trial.
Drawback
In Guria, Swayam Sevi Sansthan v. State of U.P.51, Hon‘ble Supreme Court observed, ―It is
unfortunate that the Investigating Officers and the Courts ordinarily fail to bear in mind a
distinction between the rescued children including girls, on the one hand, and the persons who
have been organizing such immoral traffic in a systematic manner and have otherwise been
aiding and abetting the commission of offences thereunder. The Legislature as also the Executive
has also failed to draw a well-thought out plan for rehabilitation of the rescued children in the
society by bringing in suitable legislations or schemes‖.
It is very difficult to say that when prostitution is legal and when it is illegal. There is need to
make more clear laws with illustrations.
Reason of to be ‗Prostitute‘
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.
Poverty is the main reason of prostitution. Along with this, there are some more reasons of
prostitution -
 Poverty - Several girls were in forced prostitution due to acute poverty. In some cases
parents sold in hope of better life. It is highly deplorable and heart-rending to note that
47
48
Section 2 (g) and Section 21, ITPA, 1956.
49
Section 22 A, ITPA, 1956.
50
Section 22AA, ITPA, 1956.
51
(2009) 15 SCC 75

22
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.52
 Greedy Nature – Many persons are greedy. They do this work as a business.
 Lack of proper implementation machinery – Many times police department does not
take these offences seriously and even in some case even FIR is not registered. If anyway
FIR is registered, police does not investigate seriously.
 Consumerism – It has been found that many times rich girl involve in prostitution only
to fulfill their unnecessary demand and to show their lavish life style.
 Vague Laws and Policies – Law on this point is not clear. Even law expert can‘t say
perfectly that in which circumstances prostitution is legal and illegal. There is no clear
policies when authorities can pass an order under Section 18, ITPA, 1956 for eviction of
brothel.
 Unemployment – Many persons are facing problems for source of earning and
livelihood.
Solution of Prostitution
Prostitution cannot be eradicated either by banishing, branding, scourging or inflicting severe

punishment on helpless and hopeless 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. There are following way of solution of this malady was suggested by
Supreme Court in Vishal Jeet v. Union of India & Ors.53 –
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.
52
Vishal Jeet v. Union of India & Ors.
53
This judgment is available at: https://main.sci.gov.in/judgment/judis/7525.pdf (Last visited on August 29, 2020).

23
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
Krishnamurthy @ Tailor Krishnan v. Public Prosecutor, Madras54

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.
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.
After that he and Ambika went inside a room.
54
December 29, 2021).

24
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)]
Issues – There were two issues-
Two issues
Meaning of Brothel Meaning of Second/ subsequent

[Section 2 (f) ] conviction [Section 3]
1. First Issue (Meaning of „Brothel‟55) - Whether solitary instance of use of house is

sufficient to declare house as a brothel.
Answer – No. But it depends 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
55
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
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
House, Room or Any portion of which is used for purposes for the gain of another person or
place House, Room or place of prostitution for the mutual gain of two or
more prostitutes.
2. Second Issue – (Previous Conviction) – 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.
 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
Section 3 punishes persons for keeping brothel or allowing premises to be used as a
brothel. It provides harder punishment for habitual offender. Section 3 divides
punishment in two categories. These are (1) Punishment for first time offence, and (2)
Punishment for second time or subsequent time offence. 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 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.

26
Section 3(1)
Punishment
First Time Conviction Second or subsiquent 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.
In this case there were two convictions. His first conviction was under Sections 5(1) and Section
8(1) of the Madras Suppression of Immoral Traffic Act, 1930 and his second Conviction was
under Section 3 of SITA, 1956. His argument was based on Section 25 (1) of SITA, 1956.
Argument of appellant was rejected on the basis of Section 25 (2). Appellant was arguing that his
conviction under Sections 5(1) and Section 8(1) of the Madras Suppression of Immoral Traffic
Act, 1930 should not be treated second or subsequent conviction for the purpose of Section 3 of
SITA, 1956. He was convicted under Section 3 and he was punished for committing second time
offence.
Convictions
Two convictions
His first conviction was under Argument of appeallant - His Second

ss. 5(1) and 8(1) of the conviction under MSATA, 1930 Conviction was
Madras Suppression of should not be treated second under SITA.
Immoral 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 by High Court was upheld.

27
Chitan J. Vaswani & Anr v. State of West Bengal & Anr. 56 & 57
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 –
Conviction - Chitan J. Vaswani and his friend were keepers (Manager and Proprietor) of a
public place namely, ‗Isias Bar‘. They were convicted under section 7(2) (a) & Section 3(1) but
acquitted under section 7(2)(b). Section 7 (2) (a) does not require specified area or 200 metres.
But Section 7 2(b) requires specified area or 200 metres.
Order of Eviction - An order was made under Section 18(1) read with Section 18(2) directing
―the occupiers of portion of premises Nos. 15 and 15/A, Free School Street commonly
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.
Isias Bar was not situated within 200 Metres ....So main
argument was related to application of Section 18 (2).
Challenge of Order in Supreme Court - They challenged eviction Order passed under Section
18. Supreme Court had granted special leave limited to the attack on this order for eviction under
Section 18(2) read with Section 18(1). Supreme Court did not allow to challenge conviction
under Section 3 and Section 7. Supreme Court allowed challenging eviction under Section 18.
 Section 3 (1) - They were convicted under Section 3(1) of the Suppression of Immoral
Traffic in Women and Girls Act, 1956, for keeping or managing a brothel in the bar, and
56
December 31, 2021).
57
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?
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 punished 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.
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).

28
 Section 7 (2) (a) - under s. 7(2) (a) for knowingly permitting prostitutes for the purpose
of their trade to resort to or remain in the bar. Bar is the public place. This Section does
not require particular place.
 Section 18 - There was also a direction under Section 18(1) read with Section 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 Section 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.
prior notice must be given for compliance Reason of this is that accused had
of audi alteram partem. already been convicted.
5 Magistrate is authorised. Court is authorised.
6 This is narrower. It is wider.
7 In Chitan Case, Bar was not situated He had been convicted under
within a distance of two hundred metres of Section 3 and Section 7. So Section
any public place referred to in sub-section 18 (2) was applicable.
(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)58 knowingly permits the same or any part thereof to be used for prostitution; …
58
Public place.

29
Section 7 (1) & Section 7 (2) Section 7 (2) (a)

(b)
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)
Section 7 (1) Section 7 (2)

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

Metres 200 Metres
Section 7 Section 7 Section 18 Section 7 Section 18

(1), (2) (b) & (1) (2) (a) & (2)
Difference between Section 7 and Section 18
Section 17 and Section 18 deals different offences -

S. No. Section 7 Section 18
1 It is of punitive nature. It is preventive nature.
2 It deals conviction of „Person‟. In It deals closure of premises . In this
this case mens rea or knowledge case there is no need to prove mens rea
must be proved or knowledge.
Ratio of Judgment –

30
 Section 3 & Section 18 (2) - The consequence of a conviction under Section 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.
 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 Section 3 or Section 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.
Vishal Jeet v. Union of India & Ors.59

―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
59
Date of Judgment: May 02, 1990. This judgment is available at: https://main.sci.gov.in/judgment/judis/7525.pdf
(Last visited on August 29, 2020).

31
 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.
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.”

32
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 Traditions60
In this case petitioner was seeking directions -
I. for the inquiry of Forced Prostitute, Devdasi & jogin. 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.
 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
60
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.

33
 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)61 - 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)62 - 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.
61
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;
62
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.
34
SUPPRESSION OF IMMORAL TRAFFIC IN WOMEN & GIRLS ACT, 1956
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.
SITA, 1956
Reason of
enactment
Article 23 r/w International Convention To bring uniformity in laws

Article 35 in New York, 1950 enacted by State Legistations.
INDIAN PENAL CODE, 1860

Various provisions in the Indian Penal Code such as Section 366-A63 (dealing with procuration
of minor girl), Section 366-B64 (dealing with offence of importation of girl from foreign
country), Section 372 (dealing with selling of minor for purposes of prostitution etc.) and Section
373 (dealing with the offence of buying minor for purposes of prostitution etc.) are for
protections of women.
THE JUVENILE JUSTICE ACT, 198665
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
63
Section 366A. Procuration of minor girl - Whoever, by any means whatsoever, induces any minor girl under the
age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is
likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with
imprisonment which may extend to ten years, and shall also be liable to fine.
64
Section 366B. Importation of girl from foreign country.—Whoever imports into India from any country
outside India or from the State of Jammu and Kashmir any girl under the age of twenty-one years with intent that
she may be, or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person,
shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.
65
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.

35
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.
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 Authority Government Court Public
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.

36
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:
(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 Government State Government UT 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.

37
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.
PREVIOUS YEARS QUESTIONS PAPERS OF DU SEMESTER

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. – 2017
Question 2 (a) – What are the main guidelines issued by the Hon‘ble Supreme Court in Vishal
Jeet Case 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

38
A sting operation was conducted on the premises of Daffodils Bar, Haryana by the Police
Inspector based on the confidential information received which stated that the bar is used for
immoral activities. The proprietor and the manager of the Daffodils Bar was arrested and
convicted under section 7(2)(a) and section 3(1) but acquitted under section 7(2)(b) of the
Immoral Traffic (Prevention) Act, 1956. Do you think acquittal was justified? Examine the scope
of power of magistrate to order for closure of brothel and eviction of offenders from the premises
in the light of provision under the Act and decided case law if any.

39
UNIT -3
NDPS Act, 1985
Law Centre – 1, FOL, DU
Leading Cases
Karnail Singh v. State of Haryana66 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, 14, 2020 (NDPS)
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, 1949
 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
66
The Judgment is available at: https://main.sci.gov.in/judgment/judis/35186.pdf (Last visited on September 14,
2020).

40
 Narcotics Control Bureau (NCB)

 IPC
 Death Sentence
 Salient Features
Narcotic Drugs and Psychotropic Substances have several medical and scientific uses. However,
they can be and are also abused and trafficked.67 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
Prohibition of drugs Allowing drugs for medical purposes
India is signatory of ‗Single Convention on Narcotic Drugs, 1961‘ & ‗Convention on

Psychotropic Substances, 1971‘. The Narcotic Drugs and Psychotropic Substances, Act, 1985 68
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,
198869. This Act was enacted under Article 253 of the Constitution of India.
67
National Policy on Narcotic Drugs and Psychotropic Substances, available at:
http://cbn.nic.in/html/NationalPolicyEnglish.pdf (Visited on January 9, 2022).
68
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).
69
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).

41
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.
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 –
1. Two parts of the Act, 1985 – There are two parts of NDPS Act, 1985 namely
 Narcotic drugs
 Psychotropic Substances

42
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
2. Narcotic Drugs – Narcotic drugs are prepared with the help of three plants. These are -
 Cannabis
 Coca
 Opium

43
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
3. 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.
4. 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
5. Deterrent Theory - Section 31A provides ‗Death Sentence‘ in certain circumstances.

6. Division of punishment - Punishment has been divided into three categories on the basis
of quantities of narcotic drugs and psychotropic substance. In case of previous
conviction, there is provision for enhance punishment70.
Punishment u/NDPS
Punishment
Three kinds depends upon
quantity
More than small and

Commercial
Small Quantity less than commercial
Quantity
quantity (Middle)
7. 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.71&72
8. Beyond reasonable doubts - Fact must be proved beyond reasonable doubts.73
70
Section 31, NDPS Act, 1985
71
Section 35 (1), NDPS Act, 1985
72
73
Section 35 (2), NDPS Act, 1985

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).
9. Special Court - There is provision for establishment of Special Court for speedy trial.74
Many Special Courts have been established.
10. Cognizable and non-bailable offence- All offences are cognizable under this Act. There
are certain circumstances in which bail may be granted.75
11. Publication of name & residence - In certain cases, in case of conviction name and
residence of accused may be published.76 NDPS Act is special law. So only those
provisions of Cr.P.C. will be applicable which are not inconsistent of NDPS Act, 1985.
12. 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.77
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.
13. 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 also.
Production of Accused Within 24 hours CrPC, Constitution & section 51,
NDPS Act
Submission of Report Within 48 hours Section 57, NDPS Act, 1957
1. 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‘. This provision is analogous to Sections 306 to 308 of CrPC.
74
75
76
77

46
Tendering of Pardon Provisions

CrPC Sections 306 to 308
NDPS Section 64
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 of 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 Punjab78 & 79

(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 & 9380 [ Section 2, Clauses viia & xxiiia, Central Govt, issued
Notification, 2001. This Notification contains Notification. By this table it is
decided which quantities would come under small quantity and commercial
quantity. It is amended time and again. The Notification is available at:
http://www.cbn.nic.in/html/qtynotif.PDF).
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.
78
(2011) 4 SCC 441
79
This judgment is available at: https://main.sci.gov.in/judgment/judis/37802.pdf (Visited on September 18, 2020).
80
As per Notification 2001. Available at: http://www.cbn.nic.in/html/qtynotif.PDF (Visited on September 18,
2020).

48
 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
 Hostile witness - Ashok Kumar, an independent witness was not examined by the
prosecution, as he had been won over by the Harjit Singh (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 rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/-
in default whereof, to undergo further rigorous imprisonment (RI) for 6 months.
Decision of Special Court Imprisonment Fine

Punishment under Section 18, Rigorous Imprisonment Fine 1,00,000 Rs.
NDPS Act, 1985 for 10 Years
In case of default of payment
of fine, further rigorous
imprisonment for 6 months.
(2) High Court – High Court confirmed decision of Special Judge on May 19, 2010.
(3) Supreme Court– Supreme Court dismissed appeal and confirmed decision of High Court on
March 30, 2011.
Table showing important dates
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 before Supreme Court was regarding quantum of
punishment.

49
 Whether RI for ten years and one lakh fine is justified.

 What should be considered at the time of imposing of sentence?
 Whether conviction of appellant should be based on opium or morphine?
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
[As per Notification 200181,
Entry 77 –
Small Quantity – 5 Gm.
Commercial – 250 gm]
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.
81
Notification 2001, available at: http://www.cbn.nic.in/html/qtynotif.PDF

50
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.
 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.
Ground Pure Opium Mixed Opium
Mode of identification It can be identified without A chemical analysis may
chemical analysis be 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 882 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.
82
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
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 -
Two Lakh 2. Fine - One Lakh
3. Both
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.

52
Opium
Section2 (xv)
Two parts of
definition
(a) The coagulated juice of (b) Mixture

the 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
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 & Other83
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.
LL.B. DU – Paper No. 2071
Question 6 (b) – The provisions contained in Section 31A of the NDPS Act, 1985 makes the
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
 E.P. Royappa v. State of Tamil Nadu84 ( Nov. 23, 1973)
 Maneka Gandhi v. Union of India (January 25, 1978)
 Bachan Singh v. State of Punjab (May 09, 1980)
 Mithu Singh v. State of Punjab (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.
Facts –
83
2012 Bom C R (Cri) 121.
84
(1974) 4 SCC 3.

54
Facts
Two PILs u/A 226

challenging Sec. 31A,
NDPS Act & One appeal
PIL and Appeal by

PIL by Indian Harm
Gulam Mohemmad
Reduction Network
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.85 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 & Other86. 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 E.P. Royappa v. State of Tamil Nadu87 Maneka Gandhi v. Union of India,88
Bachan Singh v. State of Punjab,89 Mithu Singh v. State of Punajb90
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 & Section 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.
85
Karnail Singh v. State of Haryana, (2009) 8 SCC 539.
86
2012 Bom C R (Cri) 121
87
November 23, 1973.
88
January 25, 1978.
89
Date of Judgment: May 09, 1980.
90
Date of Judgment: July 07, 1983.

56
Conclusion
After this decision, mandatory death sentence was 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.
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:

57
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.
(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 1,500 gram;
substances mentioned in (ix) to (xiii)
(b) financing, directly or indirectly, any of the activities specified in clause (a),
―shall be punishable with death‖91

(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.
91
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 Section 19,92 Section 24,93 Section
27A94 or for commercial quantity95. Sections 19, 24 & 27A are 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.
92
Section 19 - Punishment for embezzlement of opium by cultivator.
93
Section 24 - Punishment for external dealings in narcotic drugs and psychotropic substances in contravention of
section 12.
94
Section 27A - Punishment for financing illicit traffic and harbouring offenders.
95
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 – 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.
 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 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

60
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 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)96 -Reliance has been placed on Article 6 of the International
Covenant on Civil & Political Rights 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
96
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
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
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 violates 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
Karnail Singh v. State of Haryana97

(July 29, 2009)
Summary
1. Statutory Provisions
 Amendment in NDPS Act, October 02, 2001

2. Leading Cases
 Abdul Rashid Ibrahim Mansuri v. State of Gujarat98 ( February 01, 2000) (Full Bench)
 Sajan Abraham v. State of Kerala99 (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 Gujarat100 and Sajan
Abraham v. State of Kerala101, 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 if police officer is not in police
station or immediate action is necessary, substantial compliance of section 42 will be sufficient.
97
LL.B. DU – 2019 Question 2 (b) – Discuss the law laid down in Karnail Singh v. State of Haryana (2009) 7
SCC 539.
98
This judgment is available at: https://main.sci.gov.in/judgment/judis/20280.pdf (Last visited on September 23,
2020).
99
This judgment is available at: https://main.sci.gov.in/judgment/judis/17902.pdf (Last visited on September 24,
2020).
100
(2000) 2 SCC 513.
101
(2001) 6 SCC 692.

63
Section 42
(Search & Arrest without
warrant)
Abdul Rashid Ibrahim Sajan Abraham v. Karnail Singh v.

Mansuri v. State of State of Kerala State of
Gujarat (2000) (2001) Haryana (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
Write Sending report to Substantial compliance

information & Officicial Superior is 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 Supreme 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

64
(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.
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. 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 Kerala102

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
102
(2001) 6 SCC 692.

65
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.
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,

66
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.
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.

67
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.
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 Case– 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 Case – 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.

68
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 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.
Vijaysinh Chandubha Jadeja & Another v. State of Gujarat & Other103
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
103
This judgment is available at: https://main.sci.gov.in/judgment/judis/37060.pdf (Visited on September 30, 2020).

69
 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 was 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.
Section 50
Conditions under which search of

persons shall be conducted.
Original Clauses 1- 4 Inserted clauses 5 & 6 in 2001
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 42104 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).
104
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
(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
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

71
 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 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.

72
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 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.

73
(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 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

74
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.

75

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, the Court has found that the prosecution had
failed to prove the compliance as required in law, the appellant is entitled to claim its benefit to
seek his acquittal.

76
Union of India v. Mohanlal & Anr.105

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. 1/89106.
 Notification 2007107
 Notification108 (January 16, 2015)
Leading Cases
 Union of India v. Mohanlal & Another109 (2012)
 Union of India v. Mohanlal & Another110 (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 2007111 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-
105
(2016) 3 SCC 379.
106
This notification is available at: file:///C:/Users/abc/Downloads/e-nl-1989-18-19-e.pdf (Visited on October 6,
2020)
107
Notification is available at: http://mahacid.com/NARCO-notification%20dated%2010th%20May%202007.pdf
(Last visited on October 9, 2020).
108
This notification is available at: https://dor.gov.in/sites/default/files/52a_0.pdf (Visited on October 6, 2020).
109
This judgment is available at: https://main.sci.gov.in/judgment/judis/39375.pdf (Visited on October 7, 2020)
110
111
Notification is available at: http://mahacid.com/NARCO-notification%20dated%2010th%20May%202007.pdf
(Last visited on October 9, 2020)

77
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
inventory without observing entirety of substances.112 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,
112
This circular is available at: http://tshc.gov.in/documents/admin_2_2019_09_23_12_26_14.pdf (Visited on
October 9, 2020).

78
 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
conveyances113 has been seized and forwarded
a. to the officer-in-charge of the nearest police station or
b. to the officer empowered under section 53114,
 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.
113
Section 2 (viii) “conveyance” means a conveyance of any description whatsoever and includes any aircraft,
vehicle or vessel.
114
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.

79
(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.
Union of India v. Mohanlal & Another115 (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 & Another116 (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.
115
116

80
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 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 29th May  Cases where the trial is Drugs Disposal Committees were
1989 & decided concluded and directed to dispose seized
cases [Sec. 52A  proceedings in contrabands without any further
– w.e.f. 29th May appeal/revision have all verification, testing or sampling
1989] concluded finally. whatsoever
2. After 1989 &  Drugs that are seized after Drugs Disposal Committees
decided cases May, 1989 and (DDCs) shall then take steps to
 where the trial, appeal have such stock also destroyed
and revision have also under the direct supervision of the
been finally disposed of. head of the Department concerned.
3. After 1989 &  Cases in which the The heads of the Department shall
Pending cases proceedings are still ensure that appropriate
pending before the Courts applications are moved by the
at the level of trial court, officers competent to do so under
appellate court or before Notification dated 16th January,
the Supreme Court 2015 before the DDCs.

81
(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
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.

82
Conclusion
To sum up we direct as under:
(1) Seizure, Sampling and Verification - 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.
Para 13.
Presence of Magistrate and his duties –
 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
Duties of High Court – Supreme Court observed,
 ―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.

83
(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.
Next Date was fixed for final hearing of this case.
Delhi University Previous Years Question Papers
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

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-

84
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
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.
LL.B. DU 2020 (Repeated Question)
Question 4. A transported Ganja through the fields of a farm situated in Gurgaon to the NCR.
Afterwards, he used a car for delivering it to the designated place. Police Inspector, Mr. B got
information about A through an unknown phone call and he left police station immediately and
reached the spot where A was sitting in a car waiting for the customer. Seeing the Police van
approaching him, he tried to flee with the car. Page 2 of 2 However, he failed in his attempt. On
search, many bundles of Ganja was found in the possession of A. He was arrested and put on
trial.
A took the defence of noncompliance of section 42 of NDPS Act, 1985. Decide in the light of
facts the procedural formalities that need to be complied with while investigating cases under
NDPS by Investigating Officers. If there is procedural lapse under section 50, can it be a ground
to acquit the accused. Support your arguments with case laws.
……………..The End……………

85
UNIT 4
THE FOOD SAFETY AND STANDARDS ACT, 2006

Assistant Professor
Faculty of Law, University of Delhi, Delhi
(Former Assistant Professor – Puducherry & Varanasi)
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)117
[August 05, 2016.]
 The Association of the Traders and Ors. v. Union of India [Sept.16, 2015]
Constitution of India (Food & Nutrition)

 Article 21
 Article 39 (a)
 Article 47
 Concurrent List (List III) – Entry 18.
International Declaration/Convention
117
AIR 2016 SC 3626

86
 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)118. 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 & Law Commission of India, Report 264
 Section 272
 Section 273
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.
118
Law Commission of India, Report 264 (2017) is available at:
http://lawcommissionofindia.nic.in/reports/Report264.pdf (Last visited on October 17, 2020).

87
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 food119,
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 Swami Achyutanand Tirth
& Ors. v. Union of India & Ors.120 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 264121 (Para 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.
Reasons of Enactment of FSS Act, 2006

Reason of enactment was thoroughly discussed in beautiful manner in Law Commission of India,
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.
119
Earlier there were several laws related to food. Sometimes they were conflicting to each other.
120
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%20imple
mentation%20of%20Food%20Safety%20and%20Standards%20Act,%202006_1.pdf (October 13, 2020).
121
Law Commission of India, Report 264 (2017), para 4.2.

88
 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;
(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.

89
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
Section 36 Section 37
‗FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA‘ (FSSAI)

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?
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 and Standards Act, 2006?
Answer – Section 16, FSS Act, 2006

90
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. Section 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
Establishment of FSSAI
FSSAI (1+22=23) Members
Chairperson
(Appointment on recommendation of
Selection Committee)
Ex officio Members Appointment on recommendation of

(7 Members) Selecation Committee (15 Members)

91
Food Safety and Standards Authority of India‘ (FSSAI) was established by FSS Act, 2006122. It
is statutory body which performs 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:–
(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,
122
Details about this statutory body is available at: https://www.fssai.gov.in/ (Visited on October 12, 2020).

92
(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)123
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
3 Sh. Amit Mehta Joint Secretary Ministry of Consumer Affairs,
123
https://www.fssai.gov.in/cms/food-authority.php

93
Food and Public Distribution

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;

94
(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
(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;

95
(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–
(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. 124 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)
124
Section 11.

96
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
Section 18
The Association of the Traders and Ors. v. Union of India125

(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 III126
has enacted the FSS Act in the interest of Public Health and to safeguard the
125
This judgment is available at:
http://roundup.manupatra.in/trans/viewdoc.aspx?i=ptiDy4oUEz7W4RhahAaT6h93RFUeTV40hI1vo81W7g5uCfRP5
tL0pktJVchar(43)F5g3qk&id=zwKDa4S8QbBCBSkXPhUPwUGx0XQZUjQckuvzI6ju5aMEt1K/2d/LiOCBSyG5XI1eRvqJN
RizZp9YipiBGXHaJA== (Visited on October 16, 2020).

97
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 regulations Non-application of

implementation and specifying standards the Act in certain cases
(Clause 1) (Clause 2) (Clause)
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;
126
Concurrent List, Entry 18. Adulteration of foodstuffs and other goods.

98
(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 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;

99
(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 Summary127
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.
2017
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.
2019
127
It is available at:
https://www.prsindia.org/sites/default/files/parliament_or_policy_pdfs/CAG%20Report%20Summary_FSSAI.pdf
(Visited on October 13, 2020).

100
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.
101
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

102
certified by that person in such manner as may be prescribed by the Central Government have
been taken:
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:—

103
(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;
(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.

104
(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.

2015
Question 5 (b) – Define ‗food‘. Whether it can be analysed by the purchaser?
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.
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.
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.
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‘.

105
DU LL.B ( 2018)
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.
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.

106
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
 Such primary food is covered in the definition of food as contained in Section 3(j) of the
 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.

107
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.
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`n 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,
108
 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.
Definition of
Food
Prevention of Food Safety &

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

Unprocessed consumption and
processed
includes primary food

109
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.

110
M/s Nestle India Limited v. The Food Safety and Standards

Authority of India and Other
(Maggi Noodles Case) (Lead & MSG128 &129 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.130
128
Monosodium Glutamate (MSG) is flavor enhancer.
129
There are two types of MSG. These are natural and artificial. MSG is naturally found in tomatoes & cheese.
130
It is available at: https://economictimes.indiatimes.com/industry/cons-products/food/fssais-ban-on-
maggi-noodles-unreasonable-nestle-to-supreme-
111
 Samples were taken from three variants of the Maggi Noodles while nine variants of the
Maggi Noodles were banned.
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.
court/articleshow/50505746.cms?utm_source%3Dwhatsapp_web%26utm_medium%3Dsocial%26utm_
campaign%3Dsocialsharebuttons (Visited on October 23, 2020)

112
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
Petitioner‘s claim Actual finding Law
0.1ppm 2ppm 2.5ppm
4. Was there violation of PNJ131?

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?
131
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.

113
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.
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.

114
(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.
Swami Achyutanand Tirth and Ors. v. Union of India and Ors132

(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”
132
It is available at https://main.sci.gov.in/judgment/judis/43837.pdf (Visited on October 25, 2020)

115
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
 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.

116
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 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)133. 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.
133
This Report is available at: http://lawcommissionofindia.nic.in/reports/Report264.pdf (Last visited on October
17, 2020).

117
2015
Question 5 (a) – What are the principles to be followed for food safety under the Food Safety
and Standards Act, 2006?
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 and
Standards Act, 2006?
(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
Unknown Year

118
Question 2 (a) – Define ‗food‘. What are the principles to be followed for food safety under the
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‘
………………………END………………………

119
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, 1988134
 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).
INTRODUCTION
Summary
 Kautilya (Arthashastra)
134
https://www.indiacode.nic.in/bitstream/123456789/1558/1/A1988-49.pdf

120
 Indian Penal Code, 1860 (Chapter IX – Sections 161 to 171, Repealed Sections135
161 to 165A) and Section 409136
 Criminal Law (Amendment) Ordinance, 1944
 Prevention of Corruption Act, 1947
 Santhanam Committee Report (1962 to 1964)
 Prevention of Corruption Act, 1988
 Report 254th137 (The Prevention of Corruption (Amendment) Bill, 2013.
 Report 258th138 (―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.139
History - Corruption in one form or other always existed. Kautilya in his Arthasastra refers to
the various forms of corruptions prevalent in his times. During the British regime, Indian Penal
Code 1869 (In short IPC or the Code) was enacted. Some provisions of the Code clearly declare
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 1860.140
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 amending this Act. So it was
again amended in 1964.
The Indian Penal Code, 1860 and The Prevention of Corruption Act, 1947 were not sufficient to
combat menace of corruption. So The Prevention of Corruption Act, 1988 was enacted.
135
Sections 161 to 165A were repealed by PC Act, 1988.
136
Section 409 – Criminal Breach of Trust by public servant, or by banker, merchant or agent.
137
This Report is available at:
https://lawcommissionofindia.nic.in/reports/Report_No.254_Prevention_of_Corruption.pdf (Visited on October 30,
2020).
138
This Report is available at: https://lawcommissionofindia.nic.in/reports/Report258.pdf (Visited on October 30,
2020).
139
Para 2.1, The Report of Santhanam Committee.
140
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).

121
Need of The Prevention of Corruption Act, 1988 – There were several reasons of enactment of
the Prevention of Corruption Act, 1988. These are –
1. Bofors Scam - 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 on March 18, 1986. 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.141
2. Too Narrow PC Act, 1947 - The scope of the 1947 Act was considered too narrow and
the PC Act, 1988 was enacted to replace the PC Act, 1947 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 amendments 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
Singh142 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 is 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 254th143 and Report 258th144 recommended amending 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.
141
This information is available at: https://indianexpress.com/article/india/what-is-the-bofors-scandal-case-why-is-
it-being-opened-now-4823576/
142
Date of Judgment – February 1, 2000
143
https://lawcommissionofindia.nic.in/reports/Report_No.254_Prevention_of_Corruption.pdf (Visited on October 30,
2020).
144
This Report is available at: https://lawcommissionofindia.nic.in/reports/Report258.pdf (Visited on October 30,
2020).

122
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
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 had 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 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 2015.145
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 Member of Parliament (M.P.). Committee was
constituted and Pt. K. Santhanam was Chairperson of that Committee.
Report of the Committee on Prevention of Corruption146 was submitted in 1964. This Committee
is known as Santhanam Committee. There are following recommendation of the Committee -
 Source of Corruption – Main source of corruption is ‗Black Money‘. The Committee
observed, ―We wholeheartedly endorse the view that the existence of large amounts of
unaccounted black money is a major source of corruption. This money is obtained by
various ways, viz. tax evasion, smuggling, speculation in immovable property and shares
and stocks, receiving fees and remuneration partly or wholly in cash without showing them
in the accounts, trading in licences and permits, over-invoicing and under-invoicing etc.‖147
 Cooling Period for two years– There must be cooling period. It means Government
employee should not be allowed to join other services within 2 years from the date of
145
This Report is available at https://lawcommissionofindia.nic.in/reports/Report258.pdf
146
https://cvc.gov.in/sites/default/files/scr_rpt_cvc.pdf
147
Para 6.17, Report of the Committee on Prevention of Corruption.

123
retirement. That there should be a complete ban against Government servants accepting
private commercial and industrial employment for two years after retirement148.
Why cooling period? We considered that such a strict restriction was necessary to dispel
any impression that there is any sort of link or partnership or community of interest or
collusion between the higher echelons of administration and the private corporate sector as
such an impression, whether justified or not, not only affects the prestige of the Civil
Service but also affects the social climate.
 All benefits including (Pension, PF) must be seized in case of violation - Recovery from
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.
Effect of the recommendation - 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 vigilance.149 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‘. Its 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.150 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
148
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)
149
This information is available at: https://cvc.gov.in/about/background (Last visited on October 30, 2020).
150
Infra….

124
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 Singh151, 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.
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'
PC Act, 1988: Section 2

IPC, 1860: Section 21
(c)
Section 21. ―Public servant‖ - The words ―public servant‖ denotes 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;
151
Supra……( Date of Judgment – February 1, 2000)

125
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 -
(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
person 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;

126
(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,
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.

127
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 1998 MPs and MLAs
(CBI)
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 2016 Chairman, Directors and Officers of
Cell v. Ramesh Gelli and Others – Private Banks are also ‗Public
Section 2 (b) & Section 2 (c) Servant‘ under PC Act, 1988.
(viii), PC Act, 1988
Question 1- Is Chief Minister or Minister is ‗Public Servant‘?

Answer – Yes. In the case of M. Karunanidhi v. Union of India152 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),153 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
152
Date of judgment – February 12, 1979.
153
Date of judgment – April 17, 1998

128
an offence punishable under Section 7, 10, 11, 13, and 15 of the 1988 Act against a Member 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 Others154 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.
Hon‘ble Justices Shetty and Venkatachaliah observed, “The expression “public servant” as
defined under Section 2 of the Prevention of Corruption Act, 1947 means a public servant as
defined in Section 21, I.P.C. From the very commencement of the I.P.C. “Every Judge” finds a
place in the categories of public servant defined under s. 21 and this expression indicates all
Judges and all Judges of all Courts. It is a general term and general term in the Act should not
be narrowly construed. It must receive comprehensive meaning unless there is positive
indication to the contrary. There is no such indication to the contrary in the Act. A Judge of the
superior Court cannot therefore excluded from the definition of 'public servant‟. ‖
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
154
Date of Judgment – July 25, 1991.

129
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.
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 India155(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 Pradesh156 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
Corruption Act, 1988.
Prevention of Corruption (Amendment) Act, 2018157
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.
155
Date of judgment – August 06, 2014.
156
This judgment is available at: https://indiankanoon.org/doc/62259323/ (Visited on October 31, 2020).
157
Prevention of Corruption (Amendment) Act, 2018 is available at:
http://www.egazette.nic.in/writereaddata/2018/187644.pdf (Visited on November 1, 2020).

130
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.‘‘
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.

131
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.
Section 2 (d) covers illegal gratification.
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 give 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 Kalicharan Case –
Servants into two parts to understand Previous sanction is not
requirement of ‗Previous Sanction‘. necessary.
These are - PC (A) 2018, previous
(I) Laws are silent. section is mandatory.
(II) Laws expressly give protection.
(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)

132
…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‘) authority in case of retired servants‘
‗public servants‘.
Kalicharan Mahapatra v. State of Orissa158
(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 LCI159 (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.
 May 12, 1990 - Raid was conducted at his residence on 12-5-1990 and a good amount of
cash and jewellery were recovered from his residence.
 Case was registered against him under section 13(2) r/w Section 13(1) (e) of the
Prevention of Corruption Act, 1988.
158
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159
Para 15.123 https://lawcommissionofindia.nic.in/1-50/Report41.pdf (Visited on November 5, 2020).

133
 December 31, 1990 - On 31-12-1990 appellant retired from service but the investigation
into the case was 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
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 197 CrPC, 1973?
Answer – No, both are different.
Arguments of Appellant
His main argument was non application Prevention of Corruption Act, 1988. His arguments are
following -
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 was 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).

134
 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 the Section ―any person who is or was......a public servant‖.
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 were accepted by Supreme Court. So I
am not going to discuss it separately.
Statutory provisions
Following statutory provisions and report of law commission were discussed in this case -
(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 LCI160 (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
160
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135
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 are governed under Code of Criminal
Procedure, 1973. Sections 195 to 199 impose certain limitation over court from taking
cognizance. For example in certain cases previous sanctions are required. Section 196 161 and
Section 197162 CrPC deals requirement of previous sanction in certain case.
Grounds Old CrPC, 1898 New CrPC, 1973
Section 197 Section 197
Acting Public Servant There was protection for There is protection for
acting ‗public servants‘ acting ‗public servants‘
Retired Public Servants There was no protection There is protection for
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, CrPC, 1973 CrPC PC Act, 1988 PC (Amend),
1947 1988 2018
Acting public Clear Clear Clear Clear Clear protection
servants protection protection protection protection
Retired Silent Clear Silent Silent Clear protection
Public protection
Servants
161
Section 196. Prosecution for offences against the State and for criminal conspiracy to commit such offence
162
Section 197. Prosecution of Judges and public servants

136
Ratios
In this case Supreme Court laid down following ratios –
(1) PC Act is also applicable in case of retired public servant [Include v. Exclude] –
 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.
 Venkataraman Case -In the case of S.A. Venkataraman v. The State163 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.164 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 of 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.
163
1958 SCR 1040.
164
1991(3) SCC 655.

137
(3) PC Act, 1988 & CrPC, 1973 are different – It was observed that both laws cover different
area. 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, 1947 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 was cited in several cases. Ratio of this case had 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
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.

138
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.165
(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.166
 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]
 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.
165
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166
(2008) 11 SCC 681

139
 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.
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

140
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

141
c. 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.
2. Examples of corruption-
 What is not corruption? 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.
 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.167 – 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- 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 - Ingredients of the 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
167
(2008) 11 SCC 681.

142
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 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.
DU LL.B. Previous Years Questions Papers
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
2017

143
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
After 2018 Amendment

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
Antulay168
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
168

144
R.S. Nayak v. A R. Antulay169
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 from 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 was being managed by him. Complaint was filed against him for abuse of post of Chief
Minister. Sanction was not given by Governor. He had 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 Section 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.
169

145
Question Is it implicit in Section 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?
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 Section 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. CBI170 (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
170
This case is available at: https://main.sci.gov.in/judgment/judis/38157.pdf (Visited on November 13, 2020).

146
 Facts
 Statutory Provisions and cited cases
 Issues
 Arguments of appellants
 Arguments of respondent
 Ratios
 Decision
 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 Om
Prakash Chautala, who was also handling the education ministry then, had forced him to change
the original list of 2,000 selected candidates.171 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, Abhay
Singh Chautala had amassed wealth worth Rs.1,19,69,82,619/- which was 522.79 % of Abhay
171
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).

147
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.
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, 1988 read with Section 109 of Indian Penal Code, 1860.
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. Antulay172 required reconsideration?
Answer – No.
4. Was the ratio of R S Nayak v. A R. Antulay „Obiter Dictum‟173?
Answer – No.
5. Was R.S. Nayak v. A R. Antulay decided per incuriam174?
172
[1984 (2) SCC 183].
173
„Obiter Dictum‟ mean an incidental remark. a judge's expression of opinion uttered in court or in a written
judgement, but not essential to the decision and therefore not legally binding as a precedent.
174
Per incuriam means ‗lack of care‘. When a case has been decided in ignorance of law or precedent, that judgment
is called per incuriam judgment. Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors (2 December,
2010) Supreme Court of India discussed meaning of per incuriam with the help of English Cases. In Young v.

148
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 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. Antulay175 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
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
Bristol Aeroplane Company Limited (1994) All ER 293 the House of Lords observed that `Incuria' literally means
`carelessness'. In practice per incuriam appears to mean per ignoratium. "A decision is given per incuriam when
the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which
covered the case before it, in which case it must decide which case to follow.
175
[1984 (2) SCC 183]

149
decisis et non quieta movere,176 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.
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, 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) only in case of doubt - 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.
2018 Amendment
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
176
Stare decisis et non quieta movere means ―to stand by decisions and not to disturb settled matters‖. The doctrine
is the foundation of the American common law system.

150
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:
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 errors - Notwithstanding anything contained in the Code of Criminal Procedure,
1973 -
(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

151
 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.
Om Prakash Chautala v. CBI177
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
177
This order is available at: https://main.sci.gov.in/jonew/courtnic/rop/2015/16248/rop_327892.pdf (November 15,
2020).

152
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.
(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 Previous ‗Sanction‘ is necessary.
Previous ‗Sanction‘ is
Servants necessary.
Retired Public Previous ‗Sanction‘ is not Previous ‗Sanction‘ is
Servants necessary. necessary.
(Kalicharan Mahapatra v. State
of Orissa)
Acting Public Previous ‗Sanction‘ is not Previous ‗Sanction‘ is
Servants (Change of necessary. necessary.
office time to time) (RS Nayak v. A R. Antulay &
Abhay Singh Chautala v. CBI)

153

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 had 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.

154
TOPIC 6: THE PREVENTION OF MONEY-LAUNDERING ACT, 2002

LAW CENTRE – 1, FOL,
University of Delhi, Delhi
krishnamurari576@gmail.com
S. Leading Cases Date of Judgment

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)
4 Gautam Kundu v. Manoj Kumar, Assistant Director, December 16, 2015 (SC)
5 Nikesh Tarachand Shah v. Union of India November 23, 2017 (SC)
6 P. Chidambaram v. Directorate of Enforcement December 04, 2019 (SC)
7 Mohammad Arif v. Directorate of Enforcement, Govt. of July 13, 2020 (Orissa HC)
India
(6.1) Introduction
Problem of black money is rising day by day. UPA 1 and UPA2 was totally failed to implement
PMLA, 2002. In Ram Jethmalani and Ors. v. Union of India178(2011) Supreme Court passed an
order for constitution of SIT headed by Hon‘ble Justice Mr. B.P. Jeevan Reddy as Chairman.
This SIT was constituted only the grounds that the Government was totally failed to implement
PMLA, 2002 properly and effectively.
Mr. Modi Government is also totally failed on this point. Before 2014, he was making promise
that he would bring black money and every Indian will get 15 lakh rs. But at present time, black
money in Swiss Bank had doubled. It happened even after decision of ‗Demonetization‘ in 2016.
According to his reasoning, every citizens are now entitled for getting 30 lacks now. Baba
Ramadev was also raising black money issue before 2014, but at present time he os totally silent
and he is trying to justify Government without rational minds.
Enforcement Agencies especially Directorate of Enforcement (ED) are doing as a tools for
winning election and helping in formation of Government. It cannot be denied that many leaders
of opposite parties, may be involved in money laundering and corruption cases. But as soon as
they join, ruling party, ED and other enfocement agencies either stop action are they become
reluctant. Some leaders of opposite parties are being harassed by Central Agencies in guise of
PMLA. Enforcment agencies must perform for protection of economic growth and integrity of
nation rather than as a political worker of a party.
Time has come implement this law professionally.
178
Available at: https://main.sci.gov.in/judgment/judis/38154.pdf (Visited on March 21, 2022).

155
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 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. 179 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.180
Arrest of Mr. Nawab Malik, NCP Leader and Cabinet Minister, under Money Laundering case is
most recent arrest by ED under Money Laundering Case in February 2022.181
(6.2) History
This Act was enacted during Mr. Atal Bihari Bajpai. 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 January 17, 2003. The Prevention of Money-Laundering Act,
2002 (PMLA) was brought into force on July 01, 2005.182 It is special law.183 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]
179
Rhea booked under PMLA in Sushant case, The Tribune, July 31, 2020.
180
https://www.theleaflet.in/why-is-rhea-chakraborty-being-questioned-under-the-prevention-of-money-laundering-
act/# (Visited on November 21, 2020).
181
Khushboo Narayan & Sadaf Modak, ‗Nawab Malik arrested by ED in connection with money laundering case
against Dawood Ibrahim‘ Indian Express, February 24, 2022.
Available at: https://indianexpress.com/article/cities/mumbai/nawab-malik-ed-dawood-ibrahim-money-laundering-
case-7786639/ (Visited on March 20, 2022).
182
Nikesh Tarachand Shah and Ors. v. Union of India and Ors., Division Bench of Supreme Court. Date of
Judgment: November 23, 2017. Available at:
https://main.sci.gov.in/supremecourt/2017/13393/13393_2017_Judgement_23-Nov-2017.pdf (Visited on March 21,
2022).
183
Gautam Kundu v. Manoj Kumar, Assistant Director, Eastern Region, ED, (PMLA) Govt. of India, Division
Bench , Supreme Court: Date of Judgment – December 16, 2015 Available at:
https://main.sci.gov.in/judgment/judis/43201.pdf (Visited on March 20, 2022).

156
 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).
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.184 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.185 This is not good
for healthy democracy.
(6.3) 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
184
Krishnadas Rajagopal, ―Prevention of Money Laundering Act: Supreme Court seeks Centre‘s view on Jairam
Ramesh‘s petition‖ The Hindu, July 2, 2020.
185
Krishnadas Rajagopal, ―Prevention of Money Laundering Act: Supreme Court seeks Centre‘s view on Jairam
Ramesh‘s petition‖ The Hindu, July 2, 2020.

157
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 India (2017)186, 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‘.
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 destroys economic condition of country.
Preamble of The Prevention of Money-Laundering Act, 2002187 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‘ 1990 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.
(6.4.) OBJECTS OF PMLA, 2002
Objects of the PMLA, 2002 can be find out with the help of Statement of Objects and Reasons of
the Act, Preamble of the Act and leading judgments . There are following objects of the Act -
 To prevent money-laundering,
 To provide for confiscation of property derived from, or involved in, money-laundering,
and for matters connected therewith or incidental thereto.
 To fulfill international obligations188
 To protect financial systems of country and its integrity and sovereignty‘.189
(6.5.) Salient features of PMLA, 2002
186
Infra………
187
Available at: https://www.indiacode.nic.in/bitstream/123456789/2036/1/A2003-15.pdf (Visited on March 20,
2022).
188
Gautam Kundu v. Manoj Kumar, Assistant Director, Eastern Region, ED, (PMLA) Govt. of India, Division
189
Nikesh Tarachand Shah and Ors. v. Union of India and Ors., Division Bench of Supreme Court. Date of
Judgment: November 23, 2017. Available at:
https://main.sci.gov.in/supremecourt/2017/13393/13393_2017_Judgement_23-Nov-2017.pdf (Visited on March 21,
2022).

158
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 or without FIR
10. Overriding effect (Special Law)
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.190 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.191
6. Presumption of commission of crime –Section 24 deals presumption and burden of prove.
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
190
It is available at: http://egazette.nic.in/WriteReadData/2019/209695.pdf (Visited on November 21, 2020).
191
Devesh K Pandey, ―Changes in PMLA Act empower ED‖, The Hindu, August 09, 2019.

159
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.192
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 - According to Section 46, offences under this Act is
tried by Special Courts.
9. Overriding effect (Special Law) - PMLA, 2002 is special law. In case of inconsistency with
general law for example IPC and CrPC, PMLA will prevail.193 Combined reading of Sections
65 and Section 71 of PMLA, 2000 and Section 5, CrPC, PMLA will be prevail over CrPC. 194
Combined reading of Section 71, PMLA and Sections 5 and Section 41, IPC, PMLA will
prevail over IPC.
(6.6) 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
Literal
Interpol
Standing Committee PMLA, 2002
Nikesh
Meaning Report Case
Literal Meaning -
Launder means
 wash and iron clothes.
192
https://www.theleaflet.in/why-is-rhea-chakraborty-being-questioned-under-the-prevention-of-money-laundering-
act/#
193
Gautam Kundu v. Manoj Kumar, Assistant Director, Eastern Region, ED, (PMLA) Govt. of India193 , Division
194
Gautam Kundu v. Manoj Kumar, Assistant Director, Eastern Region, ED, (PMLA) Govt. of
India, Division Bench , Supreme Court: Date of Judgment – December 16, 2015 Available at:

160
 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
(1) INTERPOL - Money laundering is concealing or disguising the identity of illegally
obtained proceeds so that they appear to have originated from legitimate sources.195
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.196
(2) 18th Report of Standing Committee on Finance197 - 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
195
It is available at: https://www.interpol.int/Crimes/Financial-crime/Money-laundering (Visited on November 21,
2020).
196
Ibid.
197
https://www.prsindia.org/sites/default/files/bill_files/scr1229936804_SCR_Prevention_of_Money_Laundering_Bill.
pdf (Visited on November 20, 2020)

161
 is actually involved
in any process or activity connected with the proceeds of crime198 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
(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 B199 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,
198
Section 2 (u) defines proceeds of crime.
199
Part B - Offence under The Customs Act, 1962.

162
 ―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

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, it can be said that there are three process of
‗Money-laundering‘.
Process of ML
18th Report of Mohammad Arif v. B. Ramaraju v. UOI

Standing Committee Directorate of Enforcement,
on Finance 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

163
(2) Mohammad Arif v. Directorate of Enforcement, Govt. of India200 and B. Ramaraju v. UOI
The Act money laundering involves the process of
 placement,
 layering and
 integration of ―proceeds of crime‖.
Source of pic- Jagran Josh201
(6.7.) PMLA as ‗Special Law‘: Relation

between PMLA and CrPC
Gautam Kundu v. Manoj Kumar, Assistant Director, Eastern Region, ED, (PMLA) Govt. of
India202
Date of Judgment – December 16, 2015
 Hon‘ble Justice Pinaki Chandra Ghose
200
This case was decided by Orissa High Court on July 13, 2020.
201
This is available at: https://www.jagranjosh.com/general-knowledge/meaning-of-money-laundering-
1549620151-1 (Visited on November 20, 2020).
202
Available at: https://main.sci.gov.in/judgment/judis/43201.pdf (Visited on March 20, 2022).

164
 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.
The Rose Valley financial scandal or simply Rose Valley Chit Fund Scam was a major financial
scam and alleged political scandal in India caused by the collapse of a „Ponzi scheme‟ run by
Rose Valley Group.
Rose Valley scam is one of the biggest financial frauds, which rocked the state of West Bengal in
2013. As per Enforcement Directorate (ED) estimates, Rs 17,520 crore was reportedly raised
from investors across India. The all India small depositors association pegged the amount at Rs
40,000 crore. Few reports pegged the amount at over Rs 60,000 crore.
This appeal, by special leave, is directed against the judgment and order dated 21st July, 2015
passed by the High Court of Calcutta in 2015, whereby the High Court has rejected appellant‘s
application for bail under Section 439 of the Code of Criminal Procedure, 1973. The appellant
was arrested on 25.03.2015 in relation to an offence alleged to have been committed under
Section 3 and Section 4 of the Prevention of Money Laundering Act, 2002.
Ratio of Supreme Court

In this case Supreme Court was dealing relation between Section 45, PMLA and Section 439
CrPC was discussed. PMLA is special law and CrPC is general law. Hon‘ble Justice Pinaki
Chandra Ghose observed at para 28, ―There is no doubt that PMLA deals with the offence of
money laundering and the Parliament has enacted this law as per commitment of the country to
the United Nations General Assembly. PMLA is a special statute enacted by the Parliament for
dealing with money laundering. Section 5 of the Code of Criminal Procedure, 1973 clearly lays
down that the provisions of the Code of Criminal Procedure will not affect any special statute or
any local law. In other words, the provisions of any special statute will prevail over the general
provisions of the Code of Criminal Procedure in case of any conflict”.
Hon‘ble Justice Pinaki Chandra Ghose observed at para 29, ―Section 45 of the PMLA starts with
a non obstante clause which indicates that the provisions laid down in Section 45 of the PMLA
will have overriding effect on the general provisions of the Code of Criminal Procedure in case
of conflict between them‖.
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.

165
 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‖.
Remark (It is not part of Judgment) – Many politicians of TMC were arrested in connection of
this case including sitting MP Tapas Pal and Sudip Bandyopadhyay.203
(6.8) Leading Cases

Nikesh Tarachand Shah and Ors. v. Union of India and Anr.204
November 23, 2017 (SC)
Statutory Provisions –
PMLA, 2002 - Section 45205 (Bail)
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
 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 Enforcement206
Date of Judgement – December 04, 2019
Bench – Full Bench
1. Hon‘ble Justice R. Banumathi
203
Available at: https://www.firstpost.com/politics/sudip-bandyopadhyay-arrested-all-you-need-to-know-about-
rose-valley-chit-fund-scam-3187490.html (Visited on March 20, 2022).
204
https://main.sci.gov.in/supremecourt/2017/13393/13393_2017_Judgement_23-Nov-2017.pdf
205
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.
206
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)

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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,
 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.

167
 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.
Ram Jethmalani and Ors. v. Union of India207

(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.
207
This is available at: https://main.sci.gov.in/judgment/judis/38154.pdf (Visited on November 24, 2020)

168
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 in 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.
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.

169
(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
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,
170
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.
Response of Court

171
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 this
Court, under Clause (1) of Article 32, to protect fundamental rights from evisceration of

172
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 Jharkhand208

(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
208
This judgment is available at : https://main.sci.gov.in/judgment/judis/37801.pdf (Last visited on November 25,
2020)

173
2. PC Act, 1988
Sections 7, 10, 11, 13(2) read with Section 13(1) (e)
3. PML Act, 2002
Section 2, Section 45 (1A)209
 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 Corruption
Act, 1988.
209
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.

174
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
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

175
authority to investigate the offences which are the sole domain of the Enforcement
Directorate.
Arguments of Respondent
There are following arguments of respondent -
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.

176
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).210 Under Section 45 (1A) Government has power to
authorise any agency to investigate offences under PMLA, 2002.
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)211
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 Indi
210
This Notification is available at: https://dea.gov.in/sites/default/files/moneylaunderingrule.pdf (November 25,
2020)
211
This Notification is available at: https://dea.gov.in/sites/default/files/moneylaunderingrule.pdf (November 25,
2020)

177
PREVIOUS YEARS QUESTION PAPERS (DU LL.B)

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

178
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,
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.

179
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)
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 of a person, other than a possession of a person, other than a person
person charged of having committed a charged of having committed a scheduled
scheduled offence is liable to attachment offence is equally liable to attachment and
and confiscation proceedings under confiscation proceedings under Chapter-III;
180
Chapter-III and if so whether Section and Section 2(1) (u) which defines the
2(1)(u) which defines “proceeds of expression ―Proceeds of Crime‖, is not
crime” broadly, is 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
of proof; ambiguity as regard criteria for
criteria for determination of the nexus
determination of the nexus between a between a property targeted for
property targeted for attachment attachment/confirmation and the offence of
/confirmation and the offence of money- money-laundering; or for exclusion of mens
laundering; and for exclusion of mens rea/ knowledge of criminality in the
rea/knowledge of criminality in the acquisition of such property; Section 8(4),
acquisition of such property? which enjoins deprivation of possession of
immovable property pursuant to an order
Issue: (D) Whether Section 8(4) is
confirming the provisional attachment and
invalid for enjoining deprivation of
before conviction of the accused for an
possession of immovable property even
offence of money-laundering, is valid.
before conclusion of guilt/conviction in
the prosecution for an offence of money-
laundering?
Issue: (E) Answer

Is Section 8 invalid? Section 23 is valid.
Issue: (E) Whether the presumption The presumption enjoined in cases of

181
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 The burden of proving that proceeds of crime
burden of proof, by Section 24 is are untainted property is applicable not only
arbitrary and invalid; is applicable only to to prosecution and trial of a person charged of
the trial of an offence under Section 3; committing an offence under Section 3 but to
not 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
182
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 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
183
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 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.

184
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.
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.

185
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?
………………………………………………………………………………………………….

WCC Notes Murari Sir

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Socio-economic Offences

Krishna Murari Yadav, LAW CENTRE-1,

Krishna Murari Yadav,

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

1. Santhanam Committee Report [1964]

IMPORTANT COMMITTEES & COMMISSIONS

(a) Emergence of socio-economic offences

(a) Emergence of socio-economic offences

 Tax-evasion and avoidance,

There are certain social offences may broadly be classified into:

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

[Para 1.6, 47th Report, LCI]

(2) Law Commission of India, 29th Report, 1966

(a) History of White Collar Crime

(b) Definition of White-collar Crime and Sutherland

Crime must be related to

(c) Definition of White-collar Crime and Arnold

(3) 47th Report of Law Commission of India [1972]9

SALIENT FEATURES OF SOCIO-ECONOMIC OFFENCES

DIFFERENCES BETWEEN SOCIO-ECONOMIC OFFENCES AND TRADITIONAL

DIFFERENCES BETWEEN SOCIO-ECONOMIC OFFENCES AND WCC

Scope It is wider It is narrower.

―DIFFERENTIAL ASSOCIATION THEORY‖

―Differential Association‖ theory was propounded by Sutherland. He was searching how a

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

4. When criminal behavior is learned, the learning includes

Contribution of this Theory – This theory is based on Hindi Poem i.e. ―स स

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

STATUTES AND CASES RELATED TO SOCIO-ECONOMIC OFFENCES AND MENS

(2) FOREIGN EXCHANGE AND REGULATION ACT, 1947

Previous Years Question Papers (LL.B. D.U.)

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

Krishna Murari Yadav

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

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

Purpose of the Act

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

Place for Purpose of

House, room , Any portion of any Sexual

Another person Mutual gain of two or

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

Prostitute [Section 2 (f)]

Sexual exploitation or abuse For commercial purpose

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

LEGAL STATUS OF PROSTITUTION IN INDIA46

Minor Women/ Girl Major Woman

Illegal/ Offence Without consent

With her consent, she is With her consent and

(4) Public Place

Salient Features of the Act

There are following salient features of the Act –

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

It is gray area. There is need to enact more clear law.

(3) Prohibition of Prostitution near to public place -

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

Prostitution cannot be eradicated either by banishing, branding, scourging or inflicting severe

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

Leading Cases on this topic

Krishnamurthy @ Tailor Krishnan v. Public Prosecutor, Madras54

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

Saroja Ambika Lakshmi

Presidency Court - High Court - Supreme Court

Issues – There were two issues-