This Article pertaining to “NDPS – Controversy over Schedules & Doctrine of Retrospectivity and Prospectivity of a Ruling – Explained“ is Authored by A. Rangadham, Superintendent (AR), Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Hyderabad.
Cause title: Directorate of Revenue Intelligence Versus Raj Kumar Arora & Ors. [Crl.A.No. 1319 /2013 decided on 17-04-2025]
In the captioned case the Hon’ble Supreme Court was called upon to answer “Whether an offence under Section 8(c) could be said to have been made out when an accused “deals with” psychotropic substances mentioned in the Schedule to the NDPS Act but not figuring in Schedule I of the Rules thereunder”
The psychotropic substance in question is Buprenorphine Hydrochloride.
After referring to Section 8 of the NDPS Act, 1985, the Hon’ble Supreme Court held that no person shall deal in 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. To bring a case within the exception carved out under Section 8, it must be proved that the drug or substance was being dealt with (a) for medical or scientific purposes AND; (b) in the manner and to the extent provided by the provisions of the NDPS Act or the NDPS Rules or the orders made thereunder AND; (c) in accordance with the terms and conditions of the licence, permit or authorisation, if any.
Only when all the conditions stated above are complied with, the accused can lay claim to the benefit under the said provision. Otherwise, an offence under Section 8(c) could be said to have been made out.
The NDPS Rules, 1985 are subject to the provisions of Section 8 of the Act and meant to ‘permit and regulate’ certain activities for carrying out the purposes of NDPS Act.
The drugs and substances in Schedule-I to the Rules are permitted to be imported into or exported out of India, subject to an import certificate or export authorisation issued.
Further as per Rule 64 & 65, manufacture of all psychotropic substances (listed in Schedule to the Act) must be in accordance with the conditions prescribed in the licence granted under D & C Rules. The manufacture of all psychotropic substances (as listed in the Schedule to the Act), and those mentioned under Schedule I of the Rules, in violation of the conditions of licence issued, would amount to a contravention of Rule 65 of the NDPS Rules and thereby Section 8 of the NDPS Act itself.
Hence, the Court concluded that violation of any of the conditions of licence under the D & C Act read with its Rules would ipso facto tantamount to a violation of the NDPS Act read with its Rules as well.
The NDPS Rules, resonates that any dealing in the psychotropic substances mentioned not only in Schedule-I but also in the Schedule to the Act must meet with the requirements cast upon by the NDPS Rules.
History of decisions of Supreme Court on psychotropic substances mentioned in the Schedule but not in Schedule-I of the Rules.
- Hussain v. State of Kerala reported in (2000) 8 SCC 139 – Item in question was “Buprenorphine”. The proviso to Rule 66(2) permitted person to keep in his possession psychotropic substances for medicinal use. Hence, the possession being of only 6 ampules, with a valid medical prescription and for personal medical use, the person stands acquitted.
- Ouseph alias Thankachan v. State of Kerala reported in (2004) 4 SCC 446 – Item in question was “Buprenorphine”. The accused was in possession of 110 ampules. It was intended for personal use and hence, the charges were altered to one under Sec. 27 (personal consumption).
- Ravindran alias John and Anr. v. Superintendent of Customs reported in (2007) 6 SCC 410 – Item in question was “Diazepam”. Weighing 1.53 kgs. The person was convicted u/s 22(c) even though the substance was absent in Schedule-I of the Rules.
- State of Uttaranchal vs. Rajesh Kumar Gupta reported in 2007 (1) SCC 355 – Item in question was 70kg of “Phenobarbitone” recovered from a clinic. It was held that psychotropic substance used for medicinal or scientific purposes is excluded from the operation of Sec. 8 of the Act. The item in question is listed in Schedule-H of the D & C Act and the clinic having a licence issued under D & C Act, the drugs can be said to be used for medicinal purposes. If the psychotropic substances do not find a place in Schedule I of the NDPS Rules, the provisions of Section 8 of the NDPS Act would not apply.
- Sanjay Kumar Kedia v. Narcotics Control Bureau and Another reported in (2008) 2 SCC 294 – The item in question is “Phentermine” and “Butalbital” and are not found in Schedule-I of the Rules. It was made clear that the prohibition contained in Sec. 8 of the Act will apply.
- D. Ramakrishnan v. Intelligence Officer, Narcotic Control Bureau reported in (2009) 14 SCC 603 – The item in question is “Alprazolam”, “Lorazepam” and “Nitrazepam”, alleged to be exported without a valid export authorisation. Since the D & C Act did not deal with exports, the accused were required to comply with the specific requirements of the Act. Hence, an offence under Sec. 8(c) is made out.
- Union of India and Another v. Sanjeev V. Deshpande reported in (2014) 13 SCC 1 [3 Judges] – Section 8(c) in no uncertain terms prohibits the dealing in any manner in any narcotic drug or psychotropic substance. To fall out of the purview of Sec. 8(c), the twin condition of medical or scientific purposes AND in the manner provided under the Act and Rules must be fulfilled. Since there is already a prohibition under Sec. 8(c), the contention that Section 8 is not attracted in respect to all those psychotropic substances which find a mention in the Schedule to the Act but not in Schedule I to the Rules framed under the Act is untenable. Rajesh Kumar Gupta is overruled.
From the above, the Hon’ble Supreme Court concluded that there is no shadow of doubt on the proposition that dealing in psychotropic substances not finding a mention in Schedule I of the NDPS Rules but finding place in the Schedule to the Act, would also constitute an offence under Section 8 of the NDPS Act.
The Court also ruled that when an offence under the D & C Act is made out or can potentially be made out, the accused can also be charged or prosecuted for an offence under the NDPS Act or vice-versa. This is because the object of both the Acts is distinct.
Doctrine of Retrospective or Prospective Operation of a Ruling:
Regarding whether Sanjeev V. Deshpande should operate prospectively, it was held that an overruling decision generally operates retrospectively. When a decision rendering an opinion as regards the interpretation of a penal provision is subsequently overruled by the decision of a larger bench, the consequence of the overruling is starkly different and by default, retrospective. The correct principle of law is just discovered and applied retrospectively. However, where matters are res judicatae, they should not be disturbed. However, the Court is not precluded from declaring a judgment to operate prospectively. The doctrine of prospective overruling must not be resorted in a routine manner, but only when circumstances demand such a solution to do complete justice and also to reorient the law in the right direction without creating chaos and disruption. If the doctrine of prospective overruling is applied, pending cases would not be affected by the new declaration of law.
On the point of whether another bench can subsequently decide on the application of doctrine of prospective overruling to a past decision, the Hon’ble Supreme Court held that a different or even a smaller Bench, subsequently, can declare that the doctrine of prospective overruling must be applied to the prior judgment of this Court, in exercise of the power under Article 142 to do complete justice to the matter at hand.
After considering elaborately the judicial rulings on doctrines of prospective and retrospective rulings the Hon’ble Court felt that there is no reason to declare the decision given in Sanjeev V. Deshpande to be prospectively applicable.
Another question that was considered was can the overruling judgment and its declaration of law be considered to be the “law in force at the time of the commission”?. This was in reference to Art. 20(1) of the Constitution of India which uses the phrase “law in force at the time of the commission”. After discussing the ‘vested rights’ that would accrue during the intervening period of the decision that was overruled, it was held that the legislative authority of the NDPS Act, more particularly Section 8 of the NDPS Act, would have the final say. When the very legal interpretation given to Section 8 of the NDPS Act could be said to have been wrong and misplaced in the overruled decision, it naturally follows that no vested right, whatsoever, could have accrued or be said to have existed independently of the statute, to such persons accused of a committing an offence under Section 8.
The intention of the legislature along with the true import and meaning of Section 8(c) read with the relevant rules was always that the dealing in of any psychotropic substance mentioned under the Schedule to the Act in contravention of the provisions of the Act and Rules framed thereunder, must necessarily be punished. Therefore in Sanjeev V Deshpande, this Court only clarified the true meaning of the Section while overruling Rajesh Kumar Gupta and as a consequence have retrospective effect and would not invite any adverse implications as regards Art. 20(1) rights against the accused. The Blackstonian theory was also taken into consideration to arrive at this conclusion.
It cannot be stated that a new offence was ‘created’ subsequently, by the decision arrive in Sanjeev V Deshpande. Therefore, all pending maters would be adjudged on the basis of the interpretation of law as declared in Sanjeev V Deshpande. The overruling decision only mirrors what the lawmakers wanted the law to be and what it always was. Therefore, it cannot be disputed that the interpretation given in the overruling decision was infallibly the “law in force” at all times.
It may be noted that the accused, in the instant case, were not acquitted but discharged due to the decision in Rajesh Kumar Gupta. Hence, it is obvious that trial of all the accused must be commenced in accordance with law.
Scope of Section 216 of Cr.P.C:
Regarding the scope of Sec. 216 of Cr.P.C, it was held that charges can be altered or added but cannot be deleted. Also, once charges have been framed, the accused cannot be discharged thereafter. The only recourse left is that the accused must either be convicted or acquitted. In the instant case the charges under NDPS Act were deleted and charges under D & C Act were framed, without arriving at a decision to acquit the accused as regards the charges already framed under the provisions of the NDPS Act. The same is impermissible under the scheme of our Criminal Procedure Code.
This judgment covers a gamut of issues and are summarised for the convenience of the readers:
- Dealing in a psychotropic substance [Schedule to the Act] would be an offence under Sec. 8 of the Act even though the same is not listed under Schedule I of the NDPS Rules.
- The mere mention of psychotropic substances under D & C regime would not take them away from the purview of the NDPS Act.
- The decision in Sanjeev V. Deshpande is applicable retrospectively and would not give rise to any implications as regards the rights of the accused under Art. 20(1) of the Constitution. The judgment only clarified the law as it stood from its inception.
- The acquittals already recorded must not be disturbed.
- After framing of charges, the accused cannot be discharged under Sec. 216 Cr.P.C by deleting the charges.
