DIRECTORATE OF REVENUE INTELLIGENCE v. RAJ KUMAR ARORA & ORS

Citation: [2025] 4 S.C.R. 835, 2025 INSC 498

Court: Supreme Court of India

Bench: J.B. Pardiwala and Manoj Misra, JJ.

Judgment text

SUPREME COURT OF INDIA Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors. Criminal Appeal No. 1319 of 2013 [2025] 4 S. C. R. 835 : 2025 INSC 498 Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors. (Criminal Appeal No. 1319 of 2013) 17 April 2025 [J. B. Pardiwala* and Manoj Misra, JJ. ] Issue for Consideration Issue arose whether an offence u/s. 8(c) of the NDPS Act 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; whether the decision in Sanjeev V. Deshpande's case must operate with prospective effect; and that once, charge has been framed by a competent court u/s. 228 CrPC, can an accused thereafter seek for discharge/deletion of a particular offence from the charge u/s. 216 CrPC. Headnotes† Narcotic Drugs and Psychotropic Substances Act, 1985 - s. 8 - Narcotic Drugs and Psychotropic Substances Rules, 1985 - rr.

53, 64, Chapter VIIA - Drugs and Cosmetics Act, 1940 - Dealing in psychotropic substances-"Buprenorphine Hydrochloride" that appear in the Schedule to the NDPS Act but do not figure in Schedule I to the NDPS Rules, if constitutes an offence u/s. 8(c): Held: It cannot be said that the dealing in of "Buprenorphine Hydrochloride" would not amount to an offence u/s. 8 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 rr.

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 * Author 836 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 - This is only because those substances while capable of being abused for their inherent properties could also be used in the field of medicine - However, 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 - Courts below erred in holding that the offence under the provisions of the NDPS Act is not made out - Trial courts could also not have discharged/deleted the charge under the NDPS Act framed against the accused persons while disposing of an application u/s.

216 - This is something not permissible within the criminal procedure and the High Court unfortunately failed to take notice of this aspect - Accused persons were not acquitted but discharged - There arises no occasion to hold them technically guilty of the offences under the provisions of the NDPS Act that they were charged with - Accused to be tried by the concerned Special Judge, NDPS, in accordance with law - Impugned orders passed by the High Court set aside. [Paras 156, 157, 161-163] Narcotic Drugs and Psychotropic Substances Act, 1985 - Narcotic Drugs and Psychotropic Substances Rules, 1985 - Drugs and Cosmetics Rules, 1940 - NDPS Act and Rules, if applicable in addition to the 1940 Act: Held: s.

80 states that the provisions of NDPS Act or Rules made thereunder shall be in addition to, and not in derogation of D&C Act and Rules made thereunder - Thus, when an offence under D&C Act is made out or can potentially be made out, accused can also be charged or prosecuted for an offence under NDPS Act or vice-versa - Due to operation of r.

65, a violation of the condition of licence under the D&C Act read with its Rules would ipso facto tantamount to a violation of NDPS Act read with its Rules - To say that no offence would be made out in a case where an accused deals with a substance mentioned only under Schedule to the Act, would have the consequence of rendering entire Schedule to the Act useless, unnecessary and nugatory - NDPS Rules do not absolutely prohibit dealing in of substances mentioned under Schedule I of Rules - Substances in Schedule I of Rules can also be dealt with but only for the limited purposes mentioned under Chapter VIIA - All other substances mentioned only under Schedule to the Act can Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors. be possessed for the purposes mentioned under Chapter VIIA and also for the purposes falling under the broad umbrella of "medical or scientific purposes" as mentioned u/s. 8 NDPS Act. [Para 90] Narcotic Drugs and Psychotropic Substances Act, 1985 - s.

8 - Narcotic Drugs and Psychotropic Substances Rules, 1985 - Treatment of substances mentioned in Schedule to the Act and not in Schedule I of the Rules - Sanjeev Deshpande's judgment holding that s. 8 is applicable to all the psychotropic substances which are mentioned in Schedule to the Act but not in Schedule-I to the Rules framed under the Act - If Sanjeev Deshpande's judgment operative with prospective effect: Held: Decision in Sanjeev V. Deshpande's case must be given retrospective effect - No reason to declare the interpretation given to s. 8 of the NDPS Act and the relevant NDPS Rules, by the decision in Sanjeev V. Deshpande's case, as prospectively applicable - 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's case, perhaps, did not think fit to confine or restrict its interpretation of s. 8 to future cases only - Whilst overruling Rajesh Kumar Gupta's case, it deliberately chose not to discuss the doctrine of prospective overruling let alone resort to it - This conspicuous silence in Sanjeev Deshpande's case as regards the prospective or retrospective effect of overruling Rajesh Kumar Gupta's case has to be borne in mind and given due deference - As a natural corollary to the aforesaid, no reason why there should be deviation from the default rule of retrospectivity and instead, resort to the doctrine of prospective overruling - Thus, pending cases, if any, which were instituted before the decision of this Court in Sanjeev V. Deshpande's case would also be governed by the law as clarified by it.

[Paras 158-160] Doctrines - Doctrine of prospective overruling - Meaning, object and scope - Applicability or non-applicability of doctrine of prospective overruling in criminal matters, so far: Held: Default rule is that overruling of a decision generally operates retrospectively - This is because a judgement which interprets a statute or provision declares the meaning of the statute as it should have been construed from the date of its enactment and 838 what has been declared to be the law of the land must be held to have always been the law of the land - If a subsequent decision alters or overrules the earlier one, it cannot be said to have made a new law - Correct principle of law is just discovered and applied retrospectively - Since resorting to the doctrine of "prospective overruling" is an exception to the normal rule that a judgement or decision applies retrospectively and to the general rule of doctrine of precedent, an express declaration by the court that its decision is prospectively applicable is absolutely necessary - Prospectivity as a concept cannot be considered to be inhered in situations since the intention to attribute prospectivity to a decision must be limpid and clear - Doctrine is being applied with a view to not unsettle everything that was undertaken in the past either on account of an existing law/rule or due to the decision of a court - Prospective overruling is an accepted doctrine as an extended facet of stare decisis - Doctrine involves giving effect to the new law laid down from a prospective date, ordinarily from the date of the judgement of the overruling decision - There are several factors or considerations which may weigh with the court before the doctrine of prospective overruling is applied - Ambit of the doctrine is co-extensive with the equity of a situation - If the doctrine of prospective overruling is applied, pending cases would not be affected by the new declaration of law - In the realm of criminal law, the question of prospective or retrospective declaration of a law/decision has been comparatively rare.

[Paras 118, 122] Constitution of India - Art. 20(3) - Consideration u/Art. 20(3), on the retrospective applicability of Sanjeev Deshpande judgment: Held: Retrospective application of the dictum in Sanjeev V. Deshpande's case overruling the decision in Rajesh Kumar Gupta's case, would not give rise to any implications as regards the rights of the accused persons u/Art.

20(1) - This is because while overruling the decision in Rajesh Kumar Gupta's case, the decision in Sanjeev Deshpande's case 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 - 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 Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

interpretation of the provision in question such that it was completely unforseeable - It cannot be said that the indiscriminate dealing in of substances which are only mentioned under the Schedule to the NDPS Act and absent under Schedule I of the NDPS Rules, was indubitably legal and allowed by the legislation, prior to the decision in Sanjeev Deshpande's case - Thus, giving retrospective effect to the decision in Sanjeev V. Deshpande's case would be necessary considering the facts and circumstances of the matters. [Para 159] Code of Criminal Procedure, 1973 - ss. 216, 228 - Alteration of charge - Meaning - Once, charge framed by a competent court u/s. 228, if accused can seek for discharge/deletion of a particular offence from the charge u/s. 216 : Held: s.

216 provides the Court with the power to alter a charge and add to a charge - To alter a charge would be to vary an existing charge and make a different charge - Nowhere, does the provision expressly or by necessary implication lead to an inference that a charge could be deleted altogether - Once charges have been framed by the trial court in exercise of the powers u/s. 228, the accused cannot thereafter be discharged, be it through an exercise of the powers u/s. 227 or 216 - Language of s. 216 provides only for the addition and alteration of charges and not for the deletion or discharge of an accused - If the Legislature intended to empower trial court with the power to delete a charge at that stage, the same would have been expressly and unambiguously stated - Thus, at such a stage of the trial, the accused must necessarily either be convicted or acquitted of the charges that were so framed against him. [Paras 149-151, 154] Case Law Cited State of Uttranchal v.

Rajesh Kumar Gupta [2006] Supp. 8 SCR 843 : (2007) 1 SCC 355; Union of India & Anr. v. Sanjeev V. Deshpande [2014] 11 SCR 981 : 2014 13 SCC 1; K. Ravi v. State of Tamil Nadu & Anr. [2024] 8 SCR 700 : (2024) SCC OnLine SC 2283; State of Rajasthan v. Udai Lal [2008] 8 SCR 38 : (2008) 11 SCC 408; Hira Singh v. Union of India [2020] 4 SCR 1130 : (2020) 20 SCC 272; Hussain v. State of Kerala [1999] Supp. 4 SCR 189 : (2000) 8 SCC 139; Ouseph alias Thankachan v. State of Kerala (2004) 4 SCC 446; Ravindran alias John and Anr. v. Superintendent of Customs (2007) 6 SCC 410; Sanjay Kumar Kedia v. Narcotics Control Bureau and Another [2007] 12 SCR 840 812 : (2008) 2 SCC 294; D. Ramakrishnan v. Intelligence Officer, Narcotic Control Bureau [2009] 11 SCR 442 : (2009) 14 SCC 603; State of Punjab v. Rakesh Kumar [2018] 14 SCR 415 : (2019) 2 SCC 466; Sarwan Kumar and Another v. Madan Lal Aggarwal [2003] 1 SCR 918 : (2003) 4 SCC 147; Gian Devi Anand v. Jeevan Kumar and Others [1985] Supp.

1 SCR 1 : (1985) 2 SCC 683; Assistant Commissioner, Income Tax, Rajkot v. Saurashtra Kutch Stick Exchange Limited [2008] 13 SCR 421 : (2008) 14 SCC 171; P. V. George and Others v. State of Kerala and Others [2007] 1 SCR 1198 : (2007) 3 SCC 557; B. A. Linga Reddy and Others v. Karnataka State Transport Authority and Others [2014] 13 SCR 205 : (2015) 4 SCC 515; Manoj Parihar and Others v. State of Jammu and Kashmir and Others [2022] 7 SCR 611 : (2022) 14 SCC 72; I. C. Golak Nath and Others v. State of Punjab and Another [1967] 2 SCR 762 : AIR 1967 SC 1643; Baburam v. C. C. Jacob and Others (1999) 3 SCC 362; Somaiya Organics (India) Ltd. and Another v. State of U. P. and Another [2001] 3 SCR 33 : (2001) 5 SCC 519; Synthetics and Chemicals Ltd. and Others v. State of U. P. and Others [1989] Supp. 1 SCR 623 :(1990) 1 SCC 109; Kailash Chand Sharma v. State of Rajasthan and Others [2002] Supp. 1 SCR 317 : (2002) 6 SCC 562; Managing Director, ECIL, Hyderabad and Others v. B.

Karunakar and Others [1993] Supp. 2 SCR 576 : (1993) 4 SCC 727; Union of India and Others v. Mohd. Ramzan Khan [1990] Supp. 3 SCR 248 : (1991) 1 SCC 588; K. Madhava Reddy and Others v. State of Andhra Pradesh and Others [2014] 7 SCR 348 : (2014) 6 SCC 537; Justice Chandrashekaraiah (Retired) v. Janekere C. Krishna and Others [2013] 3 SCR 987 : (2013) 3 SCC 117; Union of India v. I. P. Awasthi and Others (2015) 17 SCC 340; Union of India and Another v. Ganpati Dealcom Private Limited [2024] 10 SCR 2183 : (2023) 1 SCC 315; Saurabh Chaudri (Dr. ) and Others v. Union of India and Others [2004] Supp. 2 SCR 611 :(2004) 5 SCC 618; Saurabh Chaudri v. Union of India [2003] Supp. 5 SCR 152 : (2003) 11 SCC 146; Jarnail Singh and Others v. Lachhmi Narain Gupta and Others [2022] 19 SCR 711 : (2022) 10 SCC 595; M. Nagaraj v. Union of India [2006] Supp. 7 SCR 336 : (2006) 8 SCC 212; M. A. Murthy v. State of Karnataka [2003] Supp. 3 SCR 327 :(2003) 7 SCC 517; State of Kerala and Others v.

Alassery Mohammed and Others [1978] 2 SCR 820 : (1978) 2 SCC 386; Rajal Das Guru Namal Pamanani v. State of Maharashtra [1975] 2 SCR 886 : (1975) 3 SCC 375; Rao Shiv Bahadur Singh and Another v. State of Vindhya Pradesh [1953] Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors. 1 SCR 1188 : (1953) 2 SCC 111; Soni Devrajbhai Babubhai v. State of Gujarat [1991] 3 SCR 812 : (1991) 4 SCC 298; Central Bureau of Investigation v. R. R. Kishore [2023] 13 SCR 1 : (2023) 15 SCC 339; Subramanian Swamy v. Director, Central Bureau of Investigation and Another [2014] 6 SCR 873 : (2014) 8 SCC 682; Food Inspector, Calicut Corporation v. Cherukattil Gopalan and Another [1971] Supp. 1 SCR 721 : (1971) 2 SCC 322; Anant Prakash Sinha v. State of Haryana and Another [2016] 2 SCR 128 : (2016) 6 SCC 105; Nallapareddy Sridhar Reddy v. State of A. P. [2020] 1 SCR 1116 : (2020) 12 SCC 467; Sohan Lal and Others v. State of Rajasthan [1990] 3 SCR 809 :(1990) 4 SCC 580 - referred to. Dev Narain v.

State of U. P. and Another, 2023 SCC OnLine All 3216; Rajesh Sharma v. Union of India, 2009 SCC OnLine Del 1330; Rajender Gupta v. State, 2005 SCC OnLine Del 873; Deepak Kumar Suthar v. State of Rajasthan (1999) 2 Raj LR 692 (FB) - referred to. Victor Linkletter v. Victor G. Walker, 1965 SCC OnLine US SC 126; Center School Township v. State, 150 Ind. 168; Mapp v. Ohio, 367 U. S. 643 - referred to. Books and Periodicals Cited P. Ramanatha Aiyar's Advanced Law Lexicon; Law Lexicon (6th ed. ) - referred to. List of Acts Narcotic Drugs and Psychotropic Substances Act, 1985; Drugs and Cosmetics Act, 1940; Narcotic Drugs and Psychotropic Substances Rules, 1985 ; Drugs and Cosmetics Rules, 1940; Code of Criminal Procedure, 1973.

List of Keywords Buprenorphine Hydrochloride; Injectable preparation of Buprenorphine; Psychotropic substance; Alteration of charge; Bunogesic injection; Discharge/deletion of charge; Health and welfare of mankind; Public health and social welfare; Convention on Psychotropic Substances, 1971; United Nation Convention on Psychotropic Substances, 1971; Single Convention on Narcotic Drugs, 1961; United Nations Convention against the Illicit Traffic in 842 Narcotic Drugs and Psychotropic Substances of 1988; Very limited medical purposes; Medical or scientific purpose; Nova Constitutio Futuris Forman Imponere Debet, Non Praeteritis; Prospective overruling; Blackstonian rule; Extended facet of stare decisis; International Convention on Drugs and Psychotropic Substances; International Drug Control Convention framework; Decision in Sanjeev V.

Deshpande's case; Prospective effect; Technically guilty; Treatment of Psychotropic substances mentioned in Schedule to the NDPS Act and not in Schedule I of the NDPS Rules; If Sanjeev Deshpande's judgment operative with prospective effect; Rule of retrospectivity; Doctrine of precedent; Retrospective applicability of Sanjeev Deshpande judgment. Case Arising From CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1319 of 2013 From the Judgment and Order dated 13. 07. 2011 of the High Court of Delhi at New Delhi in CRRP No. 494 of 2007 With Criminal Appeal No. 272 of 2014 Appearances for Parties Advs. for the Appellant: Vikramjit Banerjee, ASG, Ms. Ruchi Kohli, Sr. Adv. , Prashant Rawat, Ms. Srishti Mishra, S. K. Tyagi, G. S. Makkar, B. Krishna Prasad, Ms. Ruchi Kohli, Vatsal Joshi, Anuj Srinivas Udupa, Sarthak Karol, Arvind Kumar Sharma. Advs. for the Respondents: Yash Pal Dhingra, Deepak Goel, Jitendra Bharti, Ms. Alka Goyal. Judgment / Order of the Supreme Court Judgment J. B.

Pardiwala, J. For the convenience of exposition, this judgment is divided into the following parts: Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors. INDEX* A. FACTUAL MATRIX ............................................................. 3 i. Criminal Appeal No. 1319 of 2013 ............................. 3 ii. Criminal Appeal No. 272 of 2014 ............................... 16 B. SUBMISSIONS OF THE PARTIES ..................................... 22 i. Submissions on behalf of the Appellant(s) ............. 22 a. Criminal Appeal No. 1319 of 2013 .......................... 22 b. Criminal Appeal No. 272 of 2014 ........................... 26 ii. Submissions on behalf of the Respondent(s) ...... 27 C. ISSUES FOR DETERMINATION........................................ 29 D. ANALYSIS........................................................................... 30 i.

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. ........................................................ 30 a. Object of the NDPS Act and the United Nations Convention on Psychotropic Substances, 1971 ... 30 b. Relevant Statutory Provisions of the NDPS Act and its Rules ...................................................... 40 c. Analysing the treatment of substances mentioned in the Schedule to the Act and not in Schedule I of the Rules by previous decisions of this Court. ........ 58 d. The provisions of the NDPS Act and its Rules are "in addition to" the D&C Act and the Rules made thereunder. ................................................................ 87 ii. Whether the decision in Sanjeev V. Deshpande (supra) should operate with prospective effect? ....... 100 a.

An overruling decision generally operates retrospectively ........................................................ 100 * Ed. Note: Pagination as per the original Judgment. 844 b. The intention to make the decision prospectively applicable or the application of the doctrine of "prospective overruling" must be express and clear ... 105 c. The doctrine of "Prospective Overruling" and factors which may lead to the application thereof. ............. 109 d. It would be open for another bench to subsequently decide on the application of the doctrine of prospective overruling to a past decision. ................ 131 e. Applicability or non-applicability of doctrine of prospective overruling in criminal matters, so far. ...... 137 f. Article 20(1) considerations on the retrospective applicability of the decision in Sanjeev V. Deshpande (supra). .................................................................... 149 iii. The scope of Section 216 of the CrPC ...................... 172 a.

What is the meaning of the expression "alter" occurring in Section 216 CrPC. ............................... 177 b. Whether charges could be deleted or the accused be discharged under Section 216 CrPC .................... 180 E. CONCLUSION ..................................................................... 185 1. Since the issues raised in both the captioned appeals are the same, those were taken up for hearing analogously and are being disposed by this common judgment and order. 2. These appeals arise from the Judgment and Order passed by the High Court of Delhi in Criminal Revision Petition No. 494 of 2007 dated 13. 07. 2011 and in Criminal M. C. No. 2335 of 2010 dated 20. 03.

2013 respectively, by which the High Court rejected the respective petitions having found no legal infirmity in the orders passed by the Trial Court arriving at the conclusion that no offence under Sections 8, 22 and 29, and under Section 8(c) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter, the "NDPS Act"), respectively, could be said to have been made out since the psychotropic substance in question do not figure in Schedule I of the Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors. NDPS Rules, 1985. The Trial Court ultimately transferred the matter to the court of Metropolitan Magistrate with a direction to proceed in accordance with the provisions of the Drugs and Cosmetics Act, 1940 (hereinafter, the "D&C Act"). A. FACTUAL MATRIX i. Criminal Appeal No. 1319 of 2013 3. On 27. 09.

2003, an officer of the Department of Revenue Intelligence Headquarter (hereinafter, the "DRI(HQ)") received an information that several glass ampoules containing the injectable preparation of Buprenorphine were stored in an office premises located at 198, Office Complex, Jhandewalan Extn. , Cycle Market, New Delhi. The further information was that the injections had been illegally manufactured and cleared by M/s. Win Drugs Ltd. , Bhiwani Road, Jind, Haryana and that a few injections along with the raw materials of Buprenorphine could also be found at that location. Two teams of DRI(HQ) officers were deputed - one team to undertake the search of the premises in Delhi and another team who coordinated their action with the office of Central Excise Commissionerate, Rohtak (hereinafter, the "CEC") for the purpose of search at the premises of Win Drugs Ltd. at Jind, Haryana. 4. On the same day, i. e. , 27. 09.

2003, at around 08:15 pm, the DRI(HQ) officers visited the premises in Delhi with a search authorisation under Section 41 of the NDPS Act along with two witnesses. It is stated that upon entering the premises, Raj Kumar Arora (hereinafter, "respondent no. 1") who was the proprietor of M/s Kanishka Cargo Service, was present in the office premises. The DRI(HQ) officers recovered 25 corrugated card board cartons which contained small packets, each having ten unlabelled glass ampoules with a water coloured liquid, along with several sheets of printed labels which read as "Buprenorphine Hydrochloride". They also recovered one labelled glass ampoule containing the same coloured liquid from the table drawer of the respondent no. 1. Upon preparing a detailed inventory, it was stated that 1 labelled and 40,000 unlabelled glass ampoules containing Buprenorphine Hydrochloride which is a substance listed in the Schedule to the NDPS Act were recovered. Since the respondent no.

1 was unable to provide any permission or licence for the possession of the recovered glass ampoules, they were seized 846 under the provisions of the NDPS Act. The samples were drawn and the test memo was prepared in the presence of the respondent no. 1 and the witnesses. On 27. 09. 2003, i. e. , on the same day, the officers of CEC, Rohtak are said to have seized 23400 injections of Buprenorphine along with 100 grams of Buprenorphine in its powder form, from M/s Win Drugs Ltd at Jind, Haryana as well. 5. In response to the summons issued, the respondent no. 1 appeared and is said to have made a voluntary statement in writing dated 28. 09. 2003 which mentioned that during the course of his business as a customs clearing agent, he came in contact with one Mohd. Shebar Khan (hereinafter, "respondent no. 2") who handled the customs clearance of the drugs and medicines on behalf of Devang Bipin Parekh (hereinafter, "respondent no. 3") of M/s Sarvodiya Enterprises, Mumbai.

The statement further revealed the fact that the respondents were collectively involved in the illegal manufacture, storage, transport, sale and purchase of Buprenorphine Hydrochloride along with one Naresh Mittal of Win Drugs Ltd. 6. On 28. 09. 2003, the respondent no. 1 was arrested for the alleged commission of the offence punishable under Sections 22 and 29 of the NDPS Act respectively and was remanded to judicial custody. Since Naresh Mittal of M/s Win Drugs Ltd. had failed to appear despite repeated summons, a complaint for non-compliance of summons was filed against him before the Court of ACMM, New Delhi. The court took cognizance of the alleged offence and also issued a non-bailable warrant for his arrest. 7. The respondent no. 2 was summoned and is said to have tendered a voluntary statement dated 13. 11. 2004. The respondent no. 2 stated that during the course of his import business, he came in contact with one person named Mohd.

Abdul who showed him three ampoules of Buprenorphine and enquired whether the respondent no. 2 could procure one lakh ampoules of Buprenorphine manufactured by Neon Laboratories Ltd. or in the alternative, procure unlabelled drug ampoules of a similar size and shape having a red ring on the neck of the ampoules for him. Mohd. Abdul is said to have given an advance of Rs. 2,50,000. The respondent no. 2, thereafter, contacted the respondent no. 1 for the purpose of procuring the same and paid him the advance amount he had received along with three samples of the drug which he had obtained from Mohd. Abdul. Initially, 2,000 and 10,000 ampoules respectively, were procured and delivered. Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors. On 27. 09. 2003, the respondent no. 1 informed the respondent no. 2 that another consignment of 40,000 ampoules had been received by him at his office. When the respondent no. 2 tried to contact the respondent no.

1 at around 09:15 pm, on the same day, he came to know of the fact that the office premises of respondent no. 1 had been raided by a government agency. The respondent no. 2 further stated that upon complete delivery of one lakh ampoules, Mohd. Abdul had promised to give him an additional amount of Rs. 25,000. In light of the same, on 13. 11. 2003, the respondent no. 2 was also arrested for having committed the offence punishable under Sections 22 and 29 of the NDPS Act respectively and was remanded to judicial custody. 8. In the meanwhile, the DRI officers of the Mumbai Zonal Unit visited the premises of M/s Sarvodaya Enterprises, which is run by the respondent no. 3 and during the search recovered certain documents in the presence of witnesses. The respondent no. 3 was then summoned. He gave a voluntary statement dated 03. 12.

2003 stating that as a part of his business, his company had bought Buprenorphine in its powder form from M/s Pioneer Agro Industries, Mumbai and were selling the same to the manufacturers like M/s Win Drugs Ltd. He further stated that he knew the respondent no. 1 since he used to clear their pharmaceutical import consignments on a need basis. The respondent no. 3 further stated that he was the one who had directed the respondent no. 1 to contact Naresh Mittal of M/s Win Drugs Ltd for the purchase of Buprenorphine injections and that he had also spoken to Naresh Mittal in that regard despite knowing that the respondent no. 1 did not possess any licence to deal with the said psychotropic substance. The respondent no. 3 is also said to have intervened when the consignments were not being received in time from M/s Win Drugs Ltd and used to get the delivery to the respondent no. 1 expedited.

In the transaction in question which involved the supply of one lakh ampoules to the respondent no. 1, the respondent no. 3 was to get Rs. 1 Lakh from M/s Win Drugs Ltd in addition to some amount from the respondent no. 1, for his involvement. As a result, on 03. 12. 2003, the respondent no. 3 was also arrested for alleged commission of the offence punishable under Sections 22 and 29 of the NDPS Act respectively and was remanded to judicial custody. 9. The Chemical Examiner of the Central Revenue Control Laboratory, New Delhi, vide his report dated 20. 11. 2003 opined that, upon 848 chemical analysis conducted by him, the samples were found to be of Buprenorphine which is a psychotropic substance under the NDPS Act. It is the case of the appellant that despite their best efforts, Naresh Mittal of M/s Win Drugs Ltd.

could not be summoned and therefore, it was decided that the prosecution qua him and all other concerned persons would be considered as and when they would be available for enquiry. 10. On 25. 03. 2004, a criminal complaint as regards the offence punishable under Sections 22 and 29 of the NDPS Act respectively was filed against the respondents by one Mr. R. Roy (hereinafter, the "complainant"), an intelligence officer of the Directorate of Revenue Intelligence, New Delhi, (hereinafter, the "appellant") before the Special Court for NDPS cases, New Delhi. 11. On 03. 02. 2005, the Special Court observed that Buprenorphine is a psychotropic substance as per the Schedule to the NDPS Act and its commercial quantity is fixed at 20 gms. The test memo as regards the present seizure indicated that the contents of each of the ampoules varied between 0. 23 mg to 0. 34 mg. On a consideration of the above and the attendant circumstances, including that the respondent no.

1 did not possess any permission or licence for dealing in the substance and that all the respondents had conceded to their involvement in the crime, the Special Judge held that a prima facie contravention of Section 22 along with a case of conspiracy under Section 29 of the NDPS Act was made out. The Special Judge was also prima facie of the view that meticulous examination of the evidence is not required to be assessed at the stage of framing of charge and a mere strong suspicion of involvement in the crime is sufficient. Stating so, charge was directed to be framed. The charge was formally framed by the Special Judge on 08. 02. 2005. 12. The respondents applied for bail before the Special Judge and the same was declined. However, the High Court vide a common Judgment and Order dated 11. 01. 2005 granted bail to the respondent no. 3 along with several others. The respondent nos.

1 and 2 respectively, had also moved the High Court for bail and vide a common Judgment and Order dated 22. 08. 2005, the High Court stated that no offence under the NDPS Act was made out and directed that the respondent nos. 1 and 2 be released on bail upon furnishing a personal bond in the sum of Rs. 25,000 with one surety of the like amount to the Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors. satisfaction of the concerned trial court. The High Court in its common Judgement and Order dated 22. 08. 2005 had framed two questions of law for the purpose of considering the plea for bail - (a) Whether Buprenorphine Hydrochloride is a "psychotropic substance" within the meaning of the NDPS Act? , and (b) If yes, whether Buprenorphine Hydrochloride is a "psychotropic substance" to which Chapter VII of the Narcotic Drugs and Psychotropic Substances Rules, 1985 (hereinafter, the "NDPS Rules") apply and to what effect?

The first question was answered in the affirmative, however, on the second question, it was concluded that since Buprenorphine Hydrochloride is a psychotropic substance not included under Schedule I of the NDPS Rules, its manufacture, possession, sale and transport etc. would neither be prohibited nor regulated by the NDPS Rules and consequently by the NDPS Act. It was observed that an examination of Schedule H of the Drugs and Cosmetics Rules, 1940 (hereinafter, the "D&C Rules") made it clear that Buprenorphine Hydrochloride was listed therein as a "Prescription Drug" and therefore, the offence would fall within the rigours of the D&C Act and its Rules. 13. The appellant had preferred a petition for Special Leave to Appeal against both the orders of the High Court granting bail to the respondents. Vide order dated 31. 03.

2006, this Court declined to interfere with the grant of bail, however, made it clear that the observations of the High Court that Buprenorphine Hydrochloride would not be covered under the NDPS Act and that no offence under the NDPS Act and its rules was made out, would not have any persuasive effect when the matter would be finally considered before the Special Judge on merits. 14. The respondents thereafter preferred an application under Section 216 of the Code of Criminal Procedure, 1973 (hereinafter, the "CrPC") before the Special Judge for amendment/alteration of charge. Before filing the application under Section 216 CrPC, the respondent no. 3 had filed a Criminal Revision Petition No. 204 of 2005 before the High Court challenging the order dated 03. 02. 2005 and 08. 02. 2005 respectively, which framed charge against the respondents herein. Vide judgment and order dated 01. 08.

2006, the High Court disposed of the petition by observing that the application under Section 216 pending before the Special Judge shall be decided first before the matter is proceeded with. The relevant observations are as follows: 850 "This revision petition is directed against the order on charge dated 03. 02. 2005 as well as the formal charge framed on 08. 02. 2005 against the petitioner under Section 29 of the Narcotic Drugs And Psychotropic Substances Act, 1985. Mr. Sud, the learned Senior counsel for the petitioner has pointed out that the main issue involved in the present case is whether Buprenorphine Hydrochloride I. P. would be a psychotropic substance covered under the NDPS Act and Rules. According to Mr. Sud, this matter has been considered by this Court in the case of R Gupta v State: 123 (2005) DLT 55. This decision came after the order which is impugned in the present proceedings was passed. Mr.

Sud, also submitted that he had moved an application under Section 216 of Code of Criminal Procedure 1973 for amendment/alteration of the charge. That application, I have been told, is pending before the learned Additional Sessions Judge. In these circumstances it would be appropriate if the application under Section 216 of the Code of Criminal Procedure which has been filed by the petitioner is disposed of taking into account, inter alia, the said decision of this Court. While disposing of the application under Section 216 Code of Criminal Procedure, the learned Sessions Courts shall not be influenced by what has been held in the impugned order and shall consider the entire issue afresh. The Learned Sessions Court shall decide the application under Section 216 Code of Criminal Procedure first before proceeding further with the matter.

It is, of course, goes without saying that not only the counsel for the petitioner but the counsel for the State shall also be heard on all submissions. In view of above, terms this revision petition stands disposed of. " (Emphasis supplied) 15. The Special Judge heard the submissions of the counsel with respect to the Section 216 CrPC application made before him. Vide order dated 30. 11. 2006, the Special Judge echoed the reasoning adopted by the High Court while granting bail to the respondents and also arrived at the conclusion that the respondents are to be tried under Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors. the D&C Act and the Rules thereunder. The Special Judge allowed the application filed under Section 216 CrPC taking the view that since the offence under the NDPS Act was not made out, the file be sent to the ACMM, New Delhi for further proceedings. The relevant observations are as thus: "12. I have heard the Ld. Counsel for the parties at length. The Ld.

Counsel for the DRI also has not made out any other arguments which have been already dealt in the Hon'ble High Court in passing the judgment. Moreso, the accused has placed on record one order passed by Sh. N. K. Gupta, Special Judge in the matter, Manoj Kumar Gupta Versus State of NCT and said discussed above, since offence is made out under D & C Act which are triable by Ld. MM and not by the Court of Sessions. Accordingly, the matter was remanded back to Ld. ACMM to dealt with the judgment in accordance with law. Since Ld. Counsel for the DRI could not place any other material on record to come out with a different view that Buprenorphine Hydrochloride is covered under NDPS Act or Rule. It remains a substance to be dealt under D & C Act or Rules, Previous case of Manoj Kumar Gupta Versus State of NCT with similar allegations were ordered to be charged and tried under D & C Act and Rules and so it has to face the same consequences and not to be dealt differently. 13.

In these circumstance of the matter, I allow the application of the accused U/s 216 of Cr. P. C. and say that the charge framed by my Ld. Predecessor dated 08. 02. 2005 for the offence under NDPS Act is not made out against them and it has to be a case under D & C Act which are triable by Ld. MM and not by the court of Sessions. Accordingly, let the file be sent to Ld. ACCMM, New Delhi for further proceeding in accordance with law by herself or by assigning it to any other court of competent jurisdiction. The accused is directed to appear before Ld. ACMM on 11. 12. 2006. The file be sent immediately to the said Court. " 16. Aggrieved by the aforesaid order dated 30. 11. 2006 passed by the Special Judge, the appellant preferred Criminal Revision Petition No. 494 of 2007. Vide judgment and order dated 13. 07. 2011, the High Court dismissed the revision petition. The High Court followed the rationale adopted by this Court in State of Uttranchal v.

Rajesh Kumar Gupta reported in (2007) 1 SCC 355 wherein it was observed that if any particular drug does not find mention in the Schedule I appended to the NDPS Rules, then the provisions of Section 8 of the NDPS Act would have no application whatsoever. On the question of the respondents being discharged under Section 216 CrPC, the High Court remarked that it would not be right to say that the Special Judge had discharged the respondents. The matter was accordingly remitted to the Metropolitan Magistrate to proceed in accordance with the provisions of the D&C Act. The relevant observations have been reproduced below: "17 [... ] I am not in agreement with learned counsel for the Petitioner that by interpreting the Statute and the Rules, a penal offence be made out and the Respondents should be tried thereof.

Thus, I am of the considered view that the possession and transportation intra country of Buprenorphine Hydrochloride would not be an offence under the Act and hence not punishable under Section 22 and 29 of the Act and the learned Trial Court had rightly remanded the matter to the learned Metropolitan Magistrate holding that no case for offence under the NDPS Act was made out and the learned MM would examine the same in the light of the provisions of D&C Act. xxx xxx xxx 25. There is no denying that the above decision was rendered in the context of an order granting bail and when the Supreme Court was considering as to whether it should exercise its jurisdiction under Article 136 of the Constitution of India to interfere with the order passed by the High Court.

But that does not enable us to detract from the position that the Supreme Court, while considering the question, did examine the relevant provisions of the NDPS Act and the NDPS Rules and came to the conclusion that if the drugs did not find place in Schedule-I appended to the Rules, the provisions of Section 8 of the NDPS Act would have no application whatsoever. This, of course, was in Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors. the context of phenobarbitone which was also a Schedule 'H' drug under the Drugs and Cosmetics Rules, 1945. Mr Malhotra, as pointed out above, wanted us to ignore this decision because, according to him, it did not lay down the law or settle the issue inasmuch as the Supreme Court was only concerned with a bail order and consequently was required to take a prima facie view. We are not impressed by this argument advanced by Mr Malhotra.

The aforementioned detailed narration concerning the said decision indicates that the Supreme Court had specifically gone into the issue and had interpreted the provisions of the NDPS Act as well as the NDPS Rules. Mr Malhotra, the learned ASG, is asking us to shut our eyes to the clear dictum of the Supreme Court which is before us in black and white. We cannot do that. The Constitutional scheme of things which sets out the judicial hierarchy does not permit us to do that. Mr Malhotra submitted that the observations in Rajesh Kumar Gupta (supra) are in the nature of obiter dicta and do not constitute the ratio of the said decision [... ]. xxx xxx xxx 28. From these decisions, it is clear that, in the first place, the observations with regard to the provisions of the NDPS Act and the NDPS Rules in Rajesh Kumar Gupta (supra) cannot be construed as obiter dicta.

This is so because the discussion and conclusion with regard to the said provisions as appearing in Rajesh Kumar Gupta (supra) cannot be regarded as unnecessary to the decision. 29. Secondly, even if we assume for the sake of argument that the observations are in the nature of obiter dicta, they are normally binding on the High Courts in the absence of any direct pronouncement on that question by the Supreme Court. There is no other direct pronouncement of the Supreme Court on this issue and, therefore, even if the observations are regarded as obiter dictum, they would be binding on this Court. 30. Thirdly, apart from this, even if it is assumed that the observations of the Supreme Court in Rajesh Kumar 854 Gupta (supra) are not binding on us, the said observations will, in the least, be required to be construed as having considerable weight and of great persuasive value.

We are in full agreement with the observations of the Supreme Court and are indeed persuaded by the line of thought adopted in the said decision in Rajesh Kumar Gupta (supra. ). Thus, viewed from any angle, the submission of Mr Malhotra to ignore the decision of the Supreme Court in Rajesh Kumar Gupta (supra), deserves rejection. xxx xxx xxx 35. Till the matter is resolved by the larger bench of the Hon'ble Supreme Court this court is bound by the decision rendered in State of Uttaranchal (supra) and Rajesh Sharma (supra). Thus, I find no infirmity in the impugned order on this count. 36. I also do not find any merit in the contention of the learned counsel for the Petitioner that the Learned Trial Court erred in discharging the Respondents on an application under Section 216 Cr. P. C. Firstly the impugned order was not passed as an order in review but on an application under Section 216 Cr. P. C. duly permitted by this Court.

Moreover the Respondents have not been discharged but the matter has been remanded to the Learned Metropolitan Magistrate to proceed in accordance with the provisions of D & C Act and Rules. " (Emphasis supplied) 17. In such circumstances referred to above, the appellant is here before this Court with the present appeal. ii. Criminal Appeal No. 272 of 2014 18. On 07. 10. 2004, the Delhi Zonal Unit of the Narcotics Control Bureau (hereinafter, the "NCB") received an information from the Ahmedabad Zonal Unit that they had recovered and seized 50,000 ampoules of Buprenorphine and during the course of their investigation it was revealed that a huge quantity of these ampoules was also supplied by M/s Rusan Health Care Ltd. to their stockists in Delhi. One Monish Nayyer the proprietor of M/s Belsons was summoned in this regard. Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors. M/s Belsons had originally distributed the said ampoules to M/s Rusan Health Care Ltd.

In his statement, he disclosed that his firm had a drug licence and therefore, they had received large quantities of the said psychotropic substance from their suppliers out of which the major chunk was sold to one M/s International Drugs. Sajesh Sharma (hereinafter, the "respondent no. 1" had taken delivery of the substance on behalf of M/s International Drugs. Pursuant to this information, summons were issued to the respondent no. 1 who admitted that his firm was selling the ampoules of Buprenorphine Hydrochloride/bunogesic injections after purchasing them from M/s Belsons with a valid invoice. The respondent no. 1 then stated that he had sold 2,50,400 injections to a person named Shakeel without an invoice or consignment note as required under Rule 67 of the NDPS Rules and that he was not aware whether Shakeel had a valid drug licence or permission in accordance with law.

In the absence of any further information on Shakeel, it is the case of the appellant that no further action could be taken against him. However, on 09. 10. 2004, the respondent no. 1 was arrested and remanded to judicial custody. 19. On 02. 03. 2005, the appellant through its Intelligence Officer filed a complaint against the respondent no. 1 under Sections 8(c) and 22(c) of the NDPS Act respectively and on 04. 05. 2005, upon a prima facie case being made against the accused, a charge for the offence under Section 22(c) was framed. On 28. 11. 2006, in the midst of the trial and during the stage of recording evidence, the respondent filed an application under Section 216 CrPC drawing the attention of the Special Judge to the decision rendered by the Delhi High Court in Rajender Gupta v.

State reported in 2005 SCC OnLine Del 873 which held that dealing in substances mentioned in the Schedule to the NDPS Act and not mentioned in Schedule I of the NDPS Rules would not constitute an offence under the NDPS Act. As a consequence, the respondent no. 1 prayed that the charge be altered and the case be remitted to the appropriate court for trial under the D&C Act. 20. On 06. 07. 2009, the appellant moved an application before the Special Judge for stay of the proceedings since the matter on this issue was sub-judice before this Court by way of an SLP and also that the decision of the Delhi High Court in Rajender Gupta (supra) was challenged in appeal. Since this application was not being heard, the appellant also preferred a petition before the High Court 856 seeking stay of the further proceedings. Vide order dated 16. 09. 2009, the High Court directed the Special Judge to hear and dispose of the said application in the first instance before proceeding with the main matter.

21. Vide order dated 17. 04. 2010, the Special Judge observed that the judgement rendered in Rajender Gupta (supra) was not stayed by this Court in appeal. In fact, the same was even approved by this Court in Rajesh Kumar Gupta (supra). Therefore, the application dated 06. 07. 2009 made by the appellant was rejected. In the same breath, the Special Judge held that Buprenorphine Hydrochloride is a Schedule "H" drug under the D&C Act read with its Rules. Despite it being a psychotropic substance under the NDPS Act, it was not included in Schedule I of the NDPS Rules. That being the case, dealing in the said substance is not prohibited under the NDPS Act and the offence under Sections 8 and 22 of the NDPS Act respectively, were not made out. However, it was observed that the respondent no. 1 was involved in the illegal sale of the said substance since no record had been maintained in that regard.

In such a scenario, the case was remanded to the Court of the Metropolitan Magistrate, Delhi to deal with in accordance with law. The relevant observations of the Special Judge are reproduced hereinbelow: "19. There is no order of the stay of proceedings under the NDPS Act in this case by the Apex Court or in any other case on this issue. The operation of the judgment in Rajender Gupta's case supra has not been stayed by the Supreme Court. Further Rajender Gupta's decision had been considered and dealt with by the Supreme Court in Rajesh Kumar Gupta case supra where the Supreme Court has specifically approved of the same. In that case the Supreme Court had made observations with regard to the legal question. The Supreme Court has given its conclusive verdict thereon. Keeping this view in the matter I do not find any merit in the application. Same is accordingly dismissed. xxx xxx xxx 27.

Section 36 of the Act provides for constitution of special courts for providing speedy trial of offences under NDPS Act. The Special Courts are authorised to take cognizance Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors. of the case without its commitment by a Magistrate. The offences committed under NDPS Act are to be tried by the court of sessions. Section 80 of the Act provides that the provisions of this Act or the rules made thereunder shall be in addition and not in derogation of, the Drugs and Cosmetics Act 1940 or the Rules made thereunder. The cases under Drugs and Cosmetics Act are triable by the Court of Metropolitan Magistrate. The provisions of the Code of Criminal Procedure are applicable besides the provisions contained in the NDPS Act.

Section 228 of the code of Criminal Procedure provides that if, after such consideration and hearing as aforesaid, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence which is not exclusively triable by the Court of Sessions, he may transfer 'the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for trial in warrant cases. Section 32 of the Drugs and Cosmetics Act, 1940 provides that even if the complaint is not filed by the Drug Inspector, the cognizance against the accused is not bad. The prosecution can be launched by any Gazetted Officer of the Central Government authorised in writing in this behalf by the Central Government or a person aggrieved. 28.

As indicated above, Buprenorphine Hydrochloride is a Schedule 'H' drug under the Drugs and Cosmetic Act and Rules and though it is a psychotropic substance under the NDPS Act, it is not included in Schedule I to the NDPS Rules. That being the case, its manufacture, possession or sale is not prohibited. As such, there is no contravention of the provisions of the NDPS Rules. Consequently, the offence under Section 8 of the NDPS Act is not made out. Obviously, punishment under Section 22 of the NDPS Act is also not attracted. 29. In the present case, the accused has not maintained any record by way of consignment/ Form VI. He is involved in illegal sale of Buprenorphine Hydrochloride, a Schedule 'H' drug. As per CRCL report, the samples gave positive for the test of the Buprenorphine. Thus it being Schedule 'H' 858 drug, it would fall within the rigors of Drugs and Cosmetics Act and Rules. 30.

The offences under Drugs and Cosmetics Act and Rules are triable by the court of Metropolitan Magistrate and not by the Special Hon'ble or Court of Sessions. As such this case is remanded to Ld Chief Metropolitan Magistrate, Delhi to deal with the case in accordance with law. Ld CMM may also assign the case to any other Metropolitan Magistrate as may deem fit. It is made clear that question of limitation would not stand in the present case. Parties are directed to appear before Ld CMM on 07. 05. 2010. " (Emphasis supplied) 22. Aggrieved by the aforesaid order, the appellant preferred a Criminal M. C. No. 2335 of 2010 under Section 482 of the CrPC before the High Court. However, vide impugned Judgement and Order dated 20. 03. 2013, the High Court dismissed the petition being devoid of any merit and observed as thus: "14. It is true that in Rajinder Gupta the learned Single Judge had taken the view while dealing with the bail application.

The reasoning, however, as stated by me earlier fully applies even while dealing with the question whether the person is guilty for the offence punishable under Section 22 of the NDPS Act. 15. In this view, I also find support from another judgment of the Coordinate Bench of this Court in DRI v. Raj Kumar Arora & Anr. where relying on Rajinder Gupta and Rajesh Kumar Gupta, the learned Single Judge of this Court held that a person found in possession of Buprenorphine Hydrochloride will not be guilty under Section 22 of the NDPS Act. 16. In view of the foregoing discussion, the Petition is devoid of any merit; the same is accordingly dismissed. 17. Pending Applications stand disposed of. " (Emphasis supplied) Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors. 23. In such circumstance referred to above, the appellant is here before this Court with the present appeal. B. SUBMISSIONS OF THE PARTIES i. Submissions on behalf of the Appellant(s) a. Criminal Appeal No.

1319 of 2013 24. Mr. Vikramjit Banerjee, the learned Additional Solicitor General appearing on behalf of the appellant, submitted that, in the present case, there was a recovery of 40,001 injections of buprenorphine, which is a psychotropic substance mentioned in the Schedule to the NDPS Act. Therefore, the Respondent could be said to have contravened section 8(c) of the NDPS Act which prohibits the production, manufacturing, possession, selling, purchasing, transporting, warehousing, using, consuming, importing inter-State, exporting inter-State, importing into India, exporting 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. 25. It was submitted that the respondent no. 3 and respondent nos. 1 and 2 respectively were granted bail by the High Court vide its orders dated 11. 01. 2005 and 22. 08.

2005 respectively. However, in doing so, the High Court had observed that Buprenorphine Hydrochloride is beyond the pale of Chapter VII of the NDPS Rules and owing to it being a Schedule H drug under the D&C Act and its Rules, the offence under Section 8 of the NDPS Act would not be made out. Consequently, it was observed that the accused cannot be punished under Sections 22 and 29 of the NDPS Act respectively. Being aggrieved by the aforesaid observation made by the High Court, the appellant filed a Special Leave Petition against both the orders granting bail to the respondents and this Court vide its order dated 31. 03. 2006 had clarified and directed that the observations made by the High Court shall not have any binding effect when the matter is finally considered before the Special Judge on merits. 26. It was further submitted that the High Court committed an error in placing reliance on the decision in State of Uttaranchal vs.

Rajesh Kumar Guptareported in 2007 (1) SCC 355as the said decision is 860 not applicable to the facts of the present case. In the said case, the accused who possessed an Ayurveda Shashtri Degree was running a clinic while being assisted by eight other medical practitioners who were Allopathic and Ayurvedic doctors. A total of 7 medicines were seized and all of them were mentioned in Schedules G & H of the D&C Rules and the same were said to be used for medical purposes. However, in the present case, the contraband found in the illegal possession of the respondent no. 1 was without any label. Furthermore, the respondents are neither registered medical practitioners nor were they able to produce any document, permit or license to deal with said substances or medicines. 27.

It was vehemently submitted that the High Court had erred in holding that Rules 53 and 64 of the NDPS Rules respectively, only pertain to the psychotropic substances mentioned in Schedule I to the NDPS Rules and since Buprenorphine Hydrochloride is a psychotropic substance mentioned in the Schedule to the NDPS Act but not in Schedule I to the NDPS Rules, the offence under the NDPS Act would not be made out. It was argued that the said observation was contrary to the subsequent judgement passed by this Court in Union of India & Anr. Vs. Sanjeev V. Deshpandereported in 2014 13 SCC 1, wherein it has been clearly held that the prohibition under 8 of the NDPS Act is attracted in respect of the psychotropic substances listed in Schedule to the NDPS Act as well as Schedule I to the NDPS Rules framed under the Act.

It was further held that the NDPS Act does not contemplate the framing of rules for prohibiting activities involving drugs and psychotropic substances for the reason that Section 8(c) of the NDPS Act already prohibits such activities. 28. As regards the issue of prospective overruling, the counsel submitted that the decision of this Court in Sanjeev V. Deshpande (supra) overruled the decision in Rajesh Kumar Gupta (supra) without a specific declaration that the same was prospectively overruled. In the absence of such a declaration, the interpretation of law in Sanjeev V. Deshpande (supra) must be held to be retrospectively applicable to all cases, including those which have been pending before different courts. 29. It was then submitted that Section 80 of the NDPS Act provides that the provisions of the NDPS Act and Rules made thereunder, shall be in addition to, and not in derogation of the D&C Act, 1940 or the Rules made thereunder.

Therefore, the High Court wrongly held that the Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors. psychotropic substance in the present case is governed exclusively by the D&C Act without attracting an offence under the NDPS Act. 30. In the last, the learned counsel submitted that subsequent to bail being granted, the respondents, as a clever device, filed an application under section 216 of the CrPC, seeking alteration of charges. The Special Judge, in complete disregard to the direction passed by this Court, allowed the application and held that the offence under the NDPS Act is not made out qua all the respondents, and that the case rather pertains to the D&C Act. Such an order could not be said to be in tune with the judgement rendered by this Court in K. Ravi vs. State of Tamil Nadu & Anr.

reported in(2024) SCC OnLine SC 2283, wherein it was specifically held that Section 216 of the CrPC does not entitle the accused to file a fresh application seeking discharge, once the charges have been framed by the Court. It was further stated therein that an application under Section 216 CrPC is sometimes filed due to the ignorance of law and also with an aim to deliberately delay the trial proceedings. In the present case, the application filed under Section 216 CrPC was absolutely misconceived and was with a sole intent to derail the trial proceedings. b. Criminal Appeal No. 272 of 2014 31. Mr. Arvind Kumar Sharma, the learned counsel appearing on behalf of the appellant herein adopted the submissions canvassed by the learned ASG.

In addition, the counsel submitted that there is nothing to indicate that Rule 64 is the "governing rule" under Chapter VII of the NDPS Rules and since Rule 64 pertains only to Schedule I substances, all the other rules must also necessarily apply to Schedule I substances. The language of Rules 66 and 67 respectively, is unambiguous and they clearly apply to "any psychotropic substance" which cannot be read to exclude the substances which only find mention in the Schedule to the NDPS Act. Furthermore, Rules 65 and 66 respectively, adopt the provisions of the D&C Rules rather than excluding it. Therefore, the resultant effect must be that the contravention of the D&C Rules would ipso facto tantamount to a violation of Rules 65 and 66 of the NDPS Rules respectively, thereby attracting punishment under the NDPS Act. 32.

It was submitted that certain drugs are regulated by both the NDPS Act and the D&C Act simultaneously since they can be used as both psychotropic substances as well as medicinal drugs in view 862 of their narcotic properties. This does not necessarily mean that an accused would be absolved of his guilt under the NDPS Act once the substance finds mention under the D&C Rules. 33. In the last, both the counsels prayed that the impugned orders of the High Court be set aside and the appeals be allowed. ii. Submissions on behalf of the Respondent(s) 34. Mr. Yash Pal Dhingra, the learned counsel appearing on behalf of the respondents submitted that the drug/substance in question is covered by the exception to Section 8 of the NDPS Act i. e. , non- applicability of the prohibition in case the substance is to be used for "medical or scientific purposes".

Furthermore, he argued that an offence under Section 8 cannot be said to have been committed unless the substance also finds mention under Schedule I of the NDPS Rules. To fortify his contention, the learned counsel placed reliance on the decisions of the Delhi High Court in Rajender Gupta & Ors. v. State reported in 2005 SCC OnLine Del 873 and Rajesh Sharma v. Union of India reported in 2009 SCC OnLine Del 1330 along with the decision of this Court in Rajesh Kumar Gupta (supra). 35. The counsel vehemently submitted that the decision in Sanjeev V. Deshpande (supra) must strictly be held to be prospectively applicable. If not, it would serve to cause immense prejudice to the respondents who have already been discharged by the Special Judge. 36. It was submitted that the decision of the Delhi High Court in Rajesh Sharma (supra) cannot be said to be inapplicable solely because it was rendered in the context of a bail application.

It was submitted that while dealing with an application for bail under the NDPS Act, the Court must get over the rigour contained in Section 37(1)(b)(ii) of the NDPS Act. Therefore, only after giving an opportunity to the Public Prosecutor and recording a satisfaction to the effect that there are reasonable grounds for believing that the accused is not guilty of such offence, a decision to grant bail is arrived at. Hence, the findings rendered in a bail application are also extremely relevant while deciding the question whether an offence under Section 8 of the NDPS Act is made out or not. 37. In the last, the counsel submitted that there being no merit in the appeals, those may be dismissed. Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors. C. ISSUES FOR DETERMINATION 38. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following questions fall for our consideration: I.

Whether the 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 would constitute an offence under Section 8(c) of the NDPS Act? II. Whether the decision of this Court in Sanjeev V. Deshpande (supra) must operate with prospective effect? III. Once, the charge has been framed by a competent court under Section 228 of the CrPC, can an accused thereafter seek for discharge/deletion of a particular offence from the charge under Section 216 CrPC? D. ANALYSIS i. 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. a.

Object of the NDPS Act and the United Nations Convention on Psychotropic Substances, 1971. 39. Before we advert to the rival submissions canvassed on either side, it would be apposite to first look into the object and history behind the enactment of the NDPS Act and its Rules along with the broad scheme of the United Nations Convention on Psychotropic Substances, 1971. 40. As per its Preamble, the NDPS Act, 1985 seeks to consolidate and amend the law relating to narcotic drugs, make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic 864 Substances, amongst others. This Court in State of Rajasthan v.

Udai Lal reported in (2008) 11 SCC 408 elaborated that the NDPS Act is a special Act which has been enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and stated as thus: "10. [... ] Before analysing the same, it is relevant to mention that in order to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances, Parliament enacted the NDPS Act in the year 1985.

This is a special Act and it has been enacted with a view to make stringent provisions for the control and regulation of operations relating to the narcotic drugs and psychotropic substances [... ]" (Emphasis supplied) 41. Another decision of this Court in Hira Singh v. Union of India reported in (2020) 20 SCC 272 opined that while determining the "small or commercial quantity" of the narcotic drug or psychotropic substance in cases of seizure of a mixture of narcotic drugs or psychotropic substances with one or more neutral substances, the quantity of the neutral substance(s) is not to be excluded and is to be taken into consideration along with the actual content by weight of the offending drug. While declaring so, the Court also discussed the object of the NDPS Act and highlighted that the enactment was intended to be a deterrent against the use of narcotic drugs and psychotropic substances. The relevant observations are reproduced below: "10. [...

] As per the Preamble of the NDPS Act, 1985, it is an Act to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operation relating to narcotic drugs and psychotropic substances. To provide for forfeiture of the property derived from or use in illicit traffic in Narcotic Drugs and Psychotropic Substance. The Statement of Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors. Objects and Reasons and the Preamble of the NDPS Act imply that the Act is required to act as a deterrent and the provisions must be stringent enough to ensure that the same act as deterrents. xxx xxx xxx 10. 5. The problem of drug addicts is international and the mafia is working throughout the world. It is a crime against the society and it has to be dealt with iron hands. Use of drugs by the young people in India has increased. The drugs are being used for weakening of the nation.

During the British regime control was kept on the traffic of dangerous drugs by enforcing the Opium Act, 1857the Opium Act, 1875 and the Dangerous Drugs Act, 1930. However, with the passage of time and the development in the field of illicit drug traffic and during abuse at national and international level, many deficiencies in the existing laws have come to notice. Therefore, in order to remove such deficiencies and difficulties, there was urgent need for the enactment of a comprehensive legislation on narcotic drugs and psychotropic substances, which led to enactment of the NDPS Act. As observed hereinabove, the Act is a special law and has a laudable purpose to serve and is intended to combat the menace otherwise bent upon destroying the public health and national health. The guilty must be in and the innocent ones must be out. The punishment part in drug trafficking is an important one but its preventive part is more important.

Therefore, prevention of illicit traffic in the Narcotic Drugs and Psychotropic Substances Act, 1985 came to be introduced. The aim was to prevent illicit traffic rather than punish after the offence was committed. Therefore, the courts will have to safeguard the life and liberty of the innocent persons. Therefore, the provisions of the NDPS Act are required to be interpreted keeping in mind the object and purpose of the NDPS Act; impact on the society as a whole and the Act is required to be interpreted literally and not liberally which may ultimately frustrate the object, purpose and Preamble of the Act [... ]. " (Emphasis supplied) 866 42. There exist three Conventions (collectively referred to as the "International Drug Control Conventions") under the auspices of the United Nations which form the current normative framework for the control of narcotic drugs, psychotropic substances and precursor chemicals.

They are :- The Single Convention on Narcotic Drugs, 1961; The Convention on Psychotropic Substances of 1971; and the United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988. India has acceded to and is therefore, a party to the abovementioned International Drug Control Convention framework. 43. The Preamble to the Convention on Psychotropic Substances, 1971 (hereinafter, the "Convention"), elucidates that the Convention was adopted keeping in mind the primary concern as regards the health and welfare of mankind along with the public health and social problems which arise as a result of abuse of certain psychotropic substances. It called for a collective and determinative action from all States to prevent and combat the abuse of such substances and the rise in illicit trade thereof.

Rigorous measures were considered necessary to restrict the use of psychotropic substances to legitimate purposes while simultaneously acknowledging that their use for medical and scientific purposes must not be unduly restricted or curtailed. The Convention is annexed with four Schedules containing controlled psychotropic substances, where arguably, Schedule I substances are the most restricted while Schedule IV substances are the least restricted. 44. Article 1(e) of the Convention defines a "psychotropic substance" as any substance, natural or synthetic, or any natural material in Schedules I, II, III or IV of the Convention. Article 4 provides that, as regards the substances other than those mentioned in Schedule I i. e.

, in Schedule II, II and IV respectively, the States may permit - (a) the carrying by international travellers of small quantities of lawfully obtained preparations for personal use; (b) the use of such psychotropic substances in industry for the manufacture of non- psychotropic substances or products subject to the application of control measures until the psychotropic substances come to be in such a condition that they will not be abused or recovered in practice; and (c) the use of such psychotropic substances for the capture of animals by specifically authorised persons subject to the application of control measures. Article 5, in addition, states that the Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors. manufacture, export, import, distribution, stocking, trade, use and possession, of substances in Schedules II, III and IV respectively, must be limited to medical and scientific purposes, except for those purposes already enumerated under Article 4.

Furthermore, Article 5 states that it would be desirable if States do not permit the possession of substances mentioned in Schedules II, III and IV respectively, except under legal authority. 45. As per Article 8, the manufacture of, trade in, and distribution of substances listed in Schedules II, III and IV respectively, must also be under a licence or other similar control measures, provided that the requirements of licencing or other control measures need not apply to persons who are duly authorised to perform or are performing therapeutic or scientific functions. Article 9 states that the substances in Schedules II, III and IV respectively, shall be supplied or dispensed for use by individuals only pursuant to a medical prescription except when being lawfully obtained, used, dispensed or administered in the duly authorised exercise of therapeutic or scientific functions. 46.

In so far as the substances mentioned in Schedule I are concerned, Articles 4 and 7 respectively state that their use shall be prohibited except for scientific and very limited medical purposes, by duly authorized persons in medical or scientific establishments, which are either directly under the control of the government or specifically approved by them. Such persons performing medical or scientific functions must be required to maintain records concerning the acquisition of the substances and the details of their use which must be preserved for at least two years after the last use recorded therein. States must also require that the manufacture, trade, distribution and possession of Schedule I substances be under a special licence or prior authorization and be closely supervised. The quantity of Schedule I substances supplied to a duly authorised person must also be restricted to such level as required for his authorized purpose.

The export and import of Schedule I substances shall be prohibited except when both the exporter and importer are the competent authorities or agencies of the exporting or importing country, or other persons or enterprises which are specifically authorised for that purpose. During the export and import as enumerated above, the authorities or persons specifically authorized must have export and import authorizations for the substances mentioned in Schedule I. 868 47.

Article 11 elaborates on record-keeping and provides that - (a) In respect of substances in Schedule I, manufacturers and all other authorised persons under Article 7 shall maintain records indicating the details of the quantity manufactured, the quantity held in stock and, for each acquisition and disposal, the details of the quantity, date, supplier and recipient; (b) In respect of substances in Schedules II and III respectively, manufacturers, wholesale distributors, exporters and importers must keep records showing details of the quantity manufactured and, for each acquisition and disposal, details of the quantity, date, supplier and recipient; (c) In respect of substances mentioned in Schedule II, retail distributors, institutions for hospitalization and care, and scientific institutions must keep records showing for each acquisition and disposal, details of the quantity, date, supplier and recipient; (d) Information regarding the acquisition and disposal of substances in Schedule III by retail distributors, institutions for hospitalization and care, and scientific institutions must be made readily available through appropriate methods and by taking into account the professional and trade practices of the respective States; and (e) In respect of substances in Schedule IV, manufacturers, exporters and importers must keep records indicating the quantity manufactured, exported and imported.

48. Article 12 elaborates on the provisions relating to international trade and states that every State permitting the export or import of substances in Schedules I or II respectively, shall require a separate import or export authorization which shall state the international nonproprietary name or the designation of the substance in the Schedule, the quantity to be exported or imported, the pharmaceutical form, the name and address of the exporter and importer, and the period within which the export or import must be effected. Additionally, the export authorization shall also state the number and date of the import authorization and the authority by whom it has been issued.

Before an export authorization is issued, the States shall require an import authorization issued by the competent authority of the importing country or region which certifies that the importing of the substance(s) referred to therein is approved and such an authorization shall be produced by the person or establishment while applying for the export authorization. A copy of the export authorisation is to accompany each consignment and the government issuing the export authorisation shall also send a copy to the government of the Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors. importing country or region. When the importation has been effected, the government of the importing country or region shall then return the export authorization to the government of the exporting country or region, with an endorsement certifying the amount of the substance which has actually been imported. 49.

With respect to the export of substances mentioned in Schedule III, Article 12 states that exporters must draw up a declaration in triplicate, on a form, which contains information including the name and address of the exporter and importer, the international non-proprietary name or the designation of the substance in the Schedule, the quantity and the pharmaceutical form in which the substance is exported, the name of the preparation, if any, and the date of despatch. Exporters must furnish two copies of the declaration to the competent authorities of their country or region and attach the third copy to their consignment. Thereafter, the State from whose territory a Schedule III substance has been exported, shall not later than 90 days after the date of despatch, send to the competent authorities of the importing country or region, one copy of the declaration received from the exporter by registered mail with return of receipt requested.

The States may also require that after the consignment has been received, the importer shall transmit the copy of the declaration accompanying the consignment which has been duly endorsed stating the quantities received and the date of the receipt, to the competent authorities of the importing country or region. 50. On a conspectus of the aforementioned Articles of the Convention, it can be seen that the substances mentioned in Schedules I, II, III and IV respectively are subject to different treatment and restrictions on their manufacture, use, possession, import and export, amongst others. While Schedule I substances are to be used for limited purposes by the authorized persons under a special licence or prior authorization, the substances mentioned under Schedule II, III and IV respectively, are used for a comparatively wider range of purposes by the licence holders and its supply is allowed to be made pursuant to a medical prescription.

Therefore, it cannot be stated that the substances other than the Schedule I substances are completely unregulated or allowed to be dealt with in any manner whatsoever. These substances also have the potential to be misused or abused and hence are subject to certain restrictions and procedural requirements albeit not u