Kamal Thakur vs State (Delhi Admn.)
1994 Latest Caselaw 735 Del

ORDER

1. Is Head Constable of Delhi Police an officer superior in rank to a Constable ? The learned counsel for the appellant says he is not. In support he relies upon a passing remark, if, with respect, I may say so, in Nand Lal v. State of Rajasthan (1987) 3 Crimes 629 to the effect that a Head Constable is also a Constable.

2. The question has arisen in the following circumstances.

3. The petitioner is facing trial under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the Act) for allegedly being in possession of 5 Kg. and 500 grams of charas. The recovery was made and investigation was completed by a Head Constable of the Delhi Police. The petitioner has sought quashing of the proceedings on the ground that a Head Constable being not superior in rank to constable he could neither conduct the search or make any seizure nor, for that matter, investigate the case.

4. Though the arguments from both the sides provide to be a mere formality rendering hardly any assistance, let me venture to answer the question posed.

5. Section 42 of the Act authorises officers superior in rank to a peon, sepoy or constable of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as are empowered in this behalf by general or special order by the Central Government or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue drugs control, excise police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government to enter search, seize and arrest without warrant or authorisation.

6. In terms of Section 42 of the Act referred to above, the State Government issued a notification and since the whole dispute revolves around it, let me reproduce the same. It says :

"No. F. 10(76)/85 - Fin. (G) - In exercise of the powers conferred by sub-section (1) of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) read with the Government of India, Ministry of Home Affairs Notification No. S.O. 818(E) dated the 8th November, 1985 the Administrator of the Union Territory of Delhi is pleased to empower all officers (being officers superior in rank to a peon or constable) of the following Departments of the Delhi Administration, Delhi, if they have reason to believe from personal knowledge or information given to any person and taken down in writing, that any narcotic drug or Psychotropic substance in respect of which an offence punishable under Chapter IV of the said Act has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place within the Metropolitan Area of Delhi between sunrise and sunset, to :-

(a) enter into and search any such building, conveyance or place,

(b) in case of resistance, break open any door and remove any obstacle to such entry,

(c) seize such drug or substance and all material used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under the said Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV of the said Act, relating to such drug or substance, and

(d) detain and search, and, if he thinks proper arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV of said Act relating to such drug or substance.

Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for escape of an offender he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief,

1. Revenue Department.

2. Drug Control Department.

3. Excise Department, and

4. Police Department.

7. As would be borne out from the notification reproduced above, it empowers all officers of the Police department who are "superior in rank to a peon or constable". However, the question remains : Is Head Constable in the Police Department "superior in rank" to a constable ?

8. The Delhi Police Act defines a Constable but not a Head Constable. And, who is a Constable ? Section 2(d) of the said Act says :

"constable" means a police officer of the lowest grade."

What is meant by "grade" ? In Hari Nandan Sharan Bhatnagar v. S. N. Dixit, "grade" has been interpreted to mean scale of pay. But then, "grade" is not a term of art but a word of broad meaning. It does not merely refer to a scale of pay nor to a greater or less excellence. See : A. Mukhopadhyay v. Delhi State Civil Supplies Corporation Ltd. C.W. 1366/89 decided by this court on August 26, 1994. The Supreme Court itself makes it clear that the word 'grade" has "various shades of meaning in the service jurisprudence. It is sometimes used to denote a pay scale and sometimes a cadre" (See : A. K. Subraman v. Union of India, ). At place "grade" may imply "rank" also. Afterall, a "rank" is a position of order in relation to others in a group. It means "relative standing". "showing position or standing". "a grade of official standing". However, I feel, in the context of the Act, "grade" means pay scale and surely is not synonymous with "rank" or "cadre". I say so on the strength of and on the basis of the Delhi Police (Promotion and Confirmation) Rules which use the three expressions "grade", "cadre" and "rank" in contradistinction to each other making it clear that none of them is to be confused with the other. In this respect, I may particularly refer to clause (a) of Section 5 of the Delhi Police Act and to the opening part of Rule 8 of the Delhi Police (Promotion and Confirmation) Rules, 1980. Clause (a) of Section 5 says :

"5. Constitution of Police force - Subject to the provisions of this Act :-

(a) the Delhi Police shall consist of such number in the several ranks and have such organisation and such powers, functions and duties as the Administrator may, by general or special order, determine.

And as far as the opening part of Rule 8 is concerned it reads as under :

"8. Constitution of departmental promotion committee - Fitness of personal for promotion to various ranks in different grades/cadres shall be judged by departmental promotion committees, which by departmental promotion committees, which shall be constituted by the Commissioner of Police as under :-

obviously thus, "grade" here is not to be confused with 'rank' and since "constable" means a police officer of the lowest grade", it provided the answer too. Admittedly the grade of a "constable" in the Delhi Police is 950-1200 while a Head Constable enjoys the grade of 975-1600. The distinction between the two thus becomes too obvious.

9. However, the notification issued by the State Government does not use the word "grade". It speaks of "rank" and since in the context of the Delhi Police Act the word "grade" is not to be confused with the word "rank", and as the difference of pay scales may be taken to be merely indicative of some superiority of a Head Constable in the hierarchy, it does not provide a complete answer. Is then a Head Constable equal in rank to a constable ? Surely not. And, in support I seek to rely upon the Delhi Police (Promotion and Confirmation) Rules 1980. The rules define "lower subordinate", as under :-

"Lower subordinates" means and includes Police Personnel of and below the rank of Head Constable."

Clearly then, there are Police Personnel below the rank of "head Constable". Is "constable" one to them ? The answer is provided by Rule 8 which enacts that fitness "of personal detailed in List A to List F fro promotion to "various ranks in different grades/cadres" shall be judged by different departmental promotion committee to be constituted by the Commissioner of Police. Out of lists A to F, only lists A, B, C and D are relevant for our purposes and more particularly the details of the Personnel so "listed" in them. Let me reproduce only that part.

"List A for selection of confirmed 2 Dy. Commissioners of Police and constables training in Lower one Asstt. Commissioner of School Course."

Police to be nominated by Commissioner of Police.

Note :- "Out of two Deputy Commissioners of Police seniormost between them shall be nominated as Chairman of the DPC".

List B for promotion of confirmed constables (Lower School Course trained) or professionally qualified in technical trades to the rank of Head Constable.

List C for promotion of confirmed Constables (Overage and -Do- unqualified) to the rank of Head Constable.

  List D for promotion of confirmed     One Addl. C.P. & two DCP to be Constable to the rank of Asstt.       nominated Commissioners of Police. Sub-Inspector.  
 
 

 Do these Lists not show that "constable" becomes "Head Constable" only on promotion ?  
 

10. That "Constables" and "Head Constables" constitute different ranks and that "Head Constable" is senior in rank is further borne out from Rules 12, 13 and 14 which speak of promotion Lists A, B and C respectively relating to the "promotion" of Constables to the "rank" of Head Constable".

11. If "Constables" and "Head Constables" belong to the same rank, as is canvassed by the learned counsel for the petitioner, them how does one explain the "promotion" of "Constables" to the rank of "Head Constable" ? And if both belong to the same "rank" then why use the expression "promotion to the rank of Head Constable" as used in Rules 13 and 14 of the Rules ? If the argument of the learned counsel for the petitioner is accepted the words "to the rank of" in the Rules noticed would become redundant. And redundant they are not. In fact they clearly demolish the argument and point out clearly and unmistakenly, that constables and Head Constable relate to two different ranks and that when under the Rules persons of the the rank of constables are promoted then they are promoted as per Rules 13 and 14 "to the rank of Head Constables".

12. Surely then, Head Constables are officers superior in rank to constables. This being the position the challenge fails, and with it the petition.

13. Petition dismissed.