2025 (4) TMI 1179 - SC - Indian Laws

Offence under Section 8(c) of the NDPS Act - production manufacture possession sale purchase transport warehouse use consumption import inter-State export inter-State import into India export from India or transhipment of a psychotropic substance which is listed under the Schedule to the NDPS Act but not mentioned under Schedule I of the NDPS Rules - Doctrine of prospective overruling - Prospective effect of decision of this Court in Sanjeev V. Deshpande 2014 (8) TMI 695 - SUPREME COURT - seeking for discharge/deletion of a particular offence from the charge under Section 216 CrPC once the charge has been framed by a competent court under Section 228 of the CrPC. HELD THAT - It cannot be said that the dealing in of Buprenorphine Hydrochloride would not amount to an offence under Section 8 of the NDPS Act owing to the fact that the said psychotropic substance only finds mention under the Schedule to the NDPS Act and is not listed under Schedule I of the NDPS Rules. There exists nothing to indicate that Rules 53 and 64 of the NDPS Rules respectively are the governing rules in their respective Chapters more so when the language of the other rules in Chapters VI and VII respectively are clear about their application to the substances mentioned under the Schedule to the Act as well. All the psychotropic substances mentioned under the Schedule to the Act have potential grave and harmful consequences to the individual and the society at large when abused. Some psychotropic substances mentioned under the Schedule to the NDPS Act are also mentioned under the D C Act and the rules framed thereunder - the mere mention of certain psychotropic substances under the D C regime would not take them away from the purview of the NDPS Act if they are also mentioned under the Schedule to the NDPS Act. There arises no occasion for us to declare the interpretation given to Section 8 of the NDPS Act and the relevant NDPS Rules by the decision in Sanjeev V. Deshpande 2014 (8) TMI 695 - SUPREME COURT as prospectively applicable. There exists no overwhelming reason for us to do so. On the other hand in order to meet the ends of justice and with a view to ensure that public interest is safeguarded and to give effect to the salutary object behind the enactment of the NDPS Act the decision must necessarily be retrospectively applicable. This Court in Sanjeev V. Deshpande perhaps did not think fit to confine or restrict its interpretation of Section 8 of the NDPS Act to future cases only. The retrospective application of the dictum in Sanjeev V. Deshpande would not give rise to any implications as regards the rights of the accused persons under Article 20(1) of the Constitution. This is because while overruling the decision in Rajesh Kumar Gupta 2006 (11) TMI 542 - SUPREME COURT the decision in Sanjeev V. Deshpande has only clarified the law as it stood from its inception and given true effect to the meaning assigned to the relevant provisions of the NDPS Act and the Rules thereunder by the lawmakers. The same cannot be construed as creating a new offence. Additionally the overruling of a decision cannot be equated to the enactment of an ex-post facto law especially when the interpretation given to the statute/provision in the overruling decision is not a novel and unreasonably expansive interpretation of the provision in question such that it was completely unforseeable - there remains no doubt that giving retrospective effect to the decision in Sanjeev V. Deshpande would be necessary considering the facts and circumstances in the background of which are called upon to adjudicate these matters. Both the Trial Court and the High Court committed an error in holding that the offence under the provisions of the NDPS Act is not made out. The Trial Courts in both the appeals could also not have discharged/deleted the charge under the NDPS Act framed against the accused persons while disposing of an application under Section 216 CrPC. This is something not permissible within criminal procedure and the High Court unfortunately failed to take notice of this aspect. Conclusion - The Trial Courts and High Courts erred in holding that offences under the NDPS Act were not made out and in permitting discharge or deletion of charges under Section 216 CrPC. The impugned orders passed by the High Court are set aside - appeal allowed.

Summary

1. The principal legal questions considered in this judgment are as follows:

(i) Whether dealing with psychotropic substances that are listed in the Schedule to the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) but not included in Schedule I of the NDPS Rules, 1985, constitutes an offence under Section 8(c) of the NDPS Act.

(ii) Whether the decision of the Supreme Court in Sanjeev V. Deshpande, which overruled an earlier contrary decision, should be applied prospectively or retrospectively.

(iii) Whether, after charges have been framed under Section 228 of the Code of Criminal Procedure, 1973 (CrPC), an accused can seek discharge or deletion of charges through an application under Section 216 CrPC.

2. Issue-wise detailed analysis:

(i) Whether an offence under Section 8(c) is made out when dealing with psychotropic substances listed in the Schedule to the NDPS Act but not in Schedule I of the NDPS Rules:

Relevant legal framework and precedents: The NDPS Act aims to consolidate and amend laws relating to narcotic drugs and psychotropic substances, providing stringent control and regulation to prevent illicit trafficking and abuse. Section 8(c) prohibits dealing in narcotic drugs or psychotropic substances except for medical or scientific purposes and in accordance with the Act, Rules, or orders made thereunder. The Schedule to the NDPS Act lists psychotropic substances, while Schedule I of the NDPS Rules contains a subset thereof with stricter controls.

The United Nations Convention on Psychotropic Substances, 1971, to which India is a party, classifies psychotropic substances into four Schedules with varying degrees of control, reflecting the balance between preventing abuse and permitting medical/scientific use. Buprenorphine Hydrochloride, the substance in question, is listed in Schedule III of the Convention, implying regulation but not absolute prohibition.

Earlier Supreme Court decisions, including Hussain v. State of Kerala and Ouseph alias Thankachan v. State of Kerala, recognized Buprenorphine as a psychotropic substance under the NDPS Act and held that possession or dealing must comply with Section 8 and relevant Rules. The Court in Rajesh Kumar Gupta had held that substances not in Schedule I of the Rules were not covered by Section 8, a position later overruled in Sanjeev V. Deshpande.

Court's interpretation and reasoning: The Court emphasized that Section 8(c) prohibits dealing in all psychotropic substances listed in the Schedule to the NDPS Act, subject to the exception for medical or scientific purposes and compliance with the Act and Rules. The Schedule to the Act is a superset, and Schedule I of the Rules is a more restricted subset. The NDPS Rules, particularly Chapters VI and VII, regulate import, export, manufacture, possession, and transport of psychotropic substances, with Rules 53 and 64 providing general prohibitions for Schedule I substances, but other rules applying to all substances listed in the Schedule to the Act.

The Court rejected the earlier interpretation in Rajesh Kumar Gupta that limited the applicability of Section 8 to Schedule I substances of the Rules. Instead, it held that Section 8's prohibition is independent and comprehensive, and the Rules serve to permit and regulate certain activities rather than to prohibit. The Court clarified that dealing with substances listed only in the Schedule to the Act but not in Schedule I of the Rules still constitutes an offence under Section 8 if not done in accordance with the Act and Rules.

The Court also discussed the interplay between the NDPS Act and the Drugs and Cosmetics Act, 1940 (D&C Act). Section 80 of the NDPS Act provides that its provisions are in addition to and not in derogation of the D&C Act. Therefore, substances like Buprenorphine Hydrochloride, which appear in both statutes, can attract offences under both laws. The mere fact that a substance is regulated under the D&C Act does not exclude the applicability of the NDPS Act.

Key evidence and findings: The seized substances were Buprenorphine Hydrochloride, a psychotropic substance listed in the Schedule to the NDPS Act but not in Schedule I of the NDPS Rules. The accused lacked any licence or permission to deal with these substances under the NDPS Act or the D&C Act. The prosecution established prima facie contravention of Section 8(c) and related provisions.

Application of law to facts: Since the accused dealt in Buprenorphine Hydrochloride without requisite licences or permissions and not for medical or scientific purposes in accordance with the Act and Rules, the offence under Section 8(c) of the NDPS Act was made out despite the substance not being in Schedule I of the Rules.

Treatment of competing arguments: The respondents relied on decisions holding that substances not in Schedule I of the Rules do not attract Section 8(c) offences. The Court rejected this, relying on Sanjeev V. Deshpande, which overruled such precedents. The respondents also argued that the D&C Act exclusively governed these substances; the Court held that the NDPS Act applies additionally and does not exclude the D&C Act.

Conclusions: Dealing with psychotropic substances listed in the Schedule to the NDPS Act but not in Schedule I of the Rules constitutes an offence under Section 8(c) unless done for medical or scientific purposes and in compliance with the Act and Rules. The NDPS Act and Rules apply in addition to the D&C Act.

(ii) Whether the decision in Sanjeev V. Deshpande should operate with prospective effect:

Relevant legal framework and precedents: The doctrine of prospective overruling allows courts to apply new legal interpretations only to future cases to avoid disturbing settled rights, prevent administrative chaos, and ensure justice. However, the default rule is that judicial decisions interpreting substantive law operate retrospectively as they declare what the law has always been.

Several Supreme Court decisions were examined, including Sarwan Kumar, Assistant Commissioner, Income Tax Rajkot, P.V. George, Baburam, Somaiya Organics, and others, which elaborate that overruling decisions generally have retrospective effect unless the court expressly declares otherwise. The doctrine of prospective overruling is an exception, applied sparingly and only when justice and public interest demand it.

Court's interpretation and reasoning: The Court held that the decision in Sanjeev V. Deshpande, which overruled Rajesh Kumar Gupta, was a clarification of the law as it always stood and was not a new law. Since the decision did not expressly declare prospective operation, the default rule of retrospective application applies. The Court found no overwhelming reason or public interest to justify prospective overruling in this case.

The Court also discussed Article 20(1) of the Constitution, which prohibits conviction under a law not in force at the time of the offence. It held that the interpretation in Sanjeev V. Deshpande reflects the law as it existed at the time and does not create a new offence. Therefore, retrospective application does not violate Article 20(1).

Key evidence and findings: The Court noted the absence of any express prospective declaration in Sanjeev V. Deshpande and the need to maintain legal certainty and justice. It also noted that acquittals already attained finality under the earlier interpretation would not be disturbed.

Application of law to facts: The Court applied the doctrine of retrospective overruling, holding that the clarified interpretation of Section 8(c) applies to all pending cases, including those instituted before Sanjeev V. Deshpande.

Treatment of competing arguments: The respondents argued for prospective application to avoid prejudice. The Court rejected this, emphasizing the absence of express prospective declaration and the importance of applying the correct legal interpretation retrospectively.

Conclusions: The decision in Sanjeev V. Deshpande operates retrospectively, applying to all relevant cases, except that acquittals already attained finality will not be disturbed.

(iii) The scope of Section 216 of the CrPC regarding alteration or deletion of charges after framing:

Relevant legal framework and precedents: Section 216 CrPC empowers courts to alter or add to any charge at any time before judgment is pronounced. The provision does not expressly allow deletion of charges or discharge of accused after charges are framed under Section 228 CrPC. Precedents, including K. Ravi v. State of Tamil Nadu and various High Court decisions, have held that Section 216 cannot be used as a vehicle for discharge or deletion of charges once framed.

Court's interpretation and reasoning: The Court interpreted "alter" as modifying or varying an existing charge, not deleting it. The power under Section 216 is exclusive to the court and must be exercised judiciously to ensure a fair trial without prejudice to the accused. The Court emphasized that once charges are framed, the accused must face trial and can only be acquitted or convicted at the conclusion. The Trial Courts in the present cases erred in effectively deleting the NDPS charges and transferring the matter to the Metropolitan Magistrate without formally discharging the accused or framing alternate charges under the D&C Act.

Key evidence and findings: The Trial Courts allowed applications under Section 216 CrPC to "alter" charges by dropping NDPS charges and remitting the case to the Magistrate for trial under the D&C Act, which was held to be impermissible.

Application of law to facts: The Trial Courts' orders amounted to discharge or deletion of charges under the NDPS Act, which is beyond the scope of Section 216. The Court held that the accused must be tried on the charges framed and the Trial Courts erred in transferring the cases without proper trial.

Treatment of competing arguments: The respondents argued that the offences under the NDPS Act were not made out and hence charges should be altered. The Court held that alteration under Section 216 does not permit deletion or discharge and that such relief must be sought under appropriate provisions before framing of charges.

Conclusions: Section 216 CrPC empowers alteration or addition of charges but does not authorize deletion or discharge after charges are framed. The Trial Courts erred in effectively discharging the accused and transferring the cases without trial under the NDPS Act.

3. Significant holdings:

"Section 8(c) of the NDPS Act prohibits the production, manufacture, possession, sale, purchase, transport, warehousing, use, consumption, import inter-State, export inter-State, import into India, export from India or transhipment of any narcotic drug or psychotropic substance, 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."

"The term 'psychotropic substance' as defined in Section 2(xxiii) of the NDPS Act includes all substances listed in the Schedule to the Act along with their salts and preparations. Therefore, dealing with substances listed in the Schedule to the Act but not in Schedule I of the NDPS Rules would still constitute an offence under Section 8(c) if not done in accordance with the Act and Rules."

"Rules 53 and 64 of the NDPS Rules are exceptions to the general scheme of Chapters VI and VII respectively, and pertain specifically to substances listed in Schedule I of the Rules. Other rules in these Chapters apply to all psychotropic substances listed in the Schedule to the Act."

"The NDPS Act and Rules operate in addition to the Drugs and Cosmetics Act and its Rules, as provided under Section 80 of the NDPS Act. Therefore, offences under both statutes can be prosecuted simultaneously where applicable."

"The decision in Sanjeev V. Deshpande overruled the contrary decision in Rajesh Kumar Gupta and clarified that Section 8(c) applies to all psychotropic substances listed in the Schedule to the NDPS Act, irrespective of their inclusion in Schedule I of the NDPS Rules."

"The doctrine of prospective overruling is an exception to the normal rule that judicial decisions interpreting substantive law operate retrospectively. In the absence of an express declaration, overruling decisions apply retrospectively."

"The decision in Sanjeev V. Deshpande does not contain any express prospective operation clause and therefore must be applied retrospectively to all pending cases."

"Section 216 CrPC empowers the court to alter or add to charges before judgment but does not authorize deletion of charges or discharge of accused after charges have been framed under Section 228 CrPC."

"Trial Courts erred in effectively discharging accused persons by deleting NDPS charges and transferring cases to Magistrate courts without trial under the NDPS Act."

"Acquittals already attained finality under the earlier interpretation will not be disturbed despite retrospective application of the overruling decision."

"The accused persons in the present appeals were not acquitted but discharged; hence, the trial must proceed in accordance with law."

"The Trial Courts and High Courts erred in holding that offences under the NDPS Act were not made out and in permitting discharge or deletion of charges under Section 216 CrPC."

"The appeals are allowed, the impugned orders are set aside, and the accused are directed to be tried expeditiously by the Special Judge NDPS."