Supreme Court: In the instant appeal the issue was whether production, manufacture, possession, sale, purchase, transport, warehouse, use, consumption, inter-State import and export, import and 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? The Division Bench of J.B Pardiwala* and Manoj Misra, JJ., held that some psychotropic substances mentioned under the Schedule to the Narcotic Drugs and Psychotropic Substances Act, 1985, are also mentioned under the Drugs and Cosmetics Act, 1940 (D&C Act) and the rules framed thereunder, 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.
The Court further held that 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 in Union of India v. Sanjeev V. Deshpande (2014) 13 SCC 1, must be given retrospective application.
Background:
The instant appeals arose from the order and judgments passed by Delhi High Court 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 (NDPS Act), respectively, could be said to have been made out since the psychotropic substance in question i.e., Buprenorphine Hydrochloride, did not figure in Schedule I of the 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 (“D&C Act”).
Issues before the Court:
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Whether production, manufacture, possession, sale, purchase etc., 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?
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Whether the decision of this Court in Sanjeev V. Deshpande (supra) must operate with prospective effect?
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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 the CrPC?
Court’s Assessment:
Perusing the issues, the Court delved into the history of NDPS Act and its Rules. The NDPS Act, 1985 sought 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 Substances, amongst others.
The Court explained that the term “psychotropic substance” mentioned in Section 8 of the NDPS Act must be seen in light of Section 2(xxiii) which refers to the Schedule to the Act and all the psychotropic substances mentioned therein. Additionally, to bring a case within the exception carved out under Section 8, each of the conditions specified therein must be satisfied. In other words, for the accused to take the plea that his dealing in the narcotic drug or psychotropic substance does not constitute an offence 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.
It is just not enough to prove or establish that the narcotic drug or psychotropic substance is capable of being used for a medical or scientific purpose. That would give unnecessary leeway to persons to indiscriminately deal with narcotic drugs and psychotropic substances under the garb that they could also be potentially used for medical or scientific purposes. Moreover, several of these drugs and substances are inherently of such a nature that they have widespread medicinal and scientific applications. Therefore, an expansive interpretation of the exception that the mere potential for usage of the narcotic drug or psychotropic substance ,for medical or scientific purpose, is sufficient would run counter to the object of the Act which seeks to act as a deterrent to the widespread dealing in narcotic drugs and psychotropic substances. What must, therefore, be proved to take the benefit of the exception is that the narcotic drug or psychotropic substances was being dealt in for a specified and real medical or scientific purpose, in the manner and to the extent provided by the provisions of the Act, the rules and orders made thereunder and, in case such provisions imposes any requirement by way of licence, permit or authorisation, in accordance with the terms and conditions of such licence, permit or authorisation.
Therefore, if any psychotropic substance mentioned in the Schedule to the Act is being dealt with for a purpose other than medical or scientific purposes, an offence under Section 8(c) of the NDPS Act would be made out. Furthermore, if any psychotropic substance mentioned in the Schedule to the Act is being dealt with for a medical or scientific purpose, but not in accordance with other provisions of the Act, rules, orders or, the terms and conditions of the licence, permit or authorisations, if any, then also, an offence under Section 8(c) of the NDPS Act could be said to have been made out. It is only when the exception is complied with entirely or wholly, that an accused can lay claim to the benefit provided under the said provision.
The NDPS Rules, 1985, have been brought into being by the Central Government in exercise of its powers under Sections 9 and 76 of the NDPS Act, respectively referred to above. However, what must necessarily be kept in mind is that the power conferred upon the Central Government under Sections 9 and 76 of the NDPS Act, respectively, is subject to Section 8 and this is evident by the use of the phrase “subject to the provisions of Section 8” and “subject to the other provisions of the Act” in both the provisions. Therefore, the NDPS rules must not be understood as laying down standards different from or inconsistent with the substantive provisions of the NDPS Act, especially Section 8 and the Schedule to the NDPS Act. The underlying object of the NDPS rules is to “permit and regulate” certain activities for carrying out the purposes of the NDPS Act and not to “prohibit” those activities.
Upon a meticulous analysis of the NDPS rules relating to psychotropic substances and analysing the purposes for which they are to be dealt in, along with the requirements and procedures to be complied with for each kind of dealing in the psychotropic substances, the Court observed that an underlying idea resonates throughout these rules i.e., that any dealing in the psychotropic substances mentioned under Schedule I of the Rules must strictly be in accordance with the NDPS Rules and only for the purposes enumerated under Chapter VIIA of the NDPS Rules. The substances not finding a mention under Schedule I of the Rules but listed in the Schedule to the Act must also meet with the requirements cast upon by the NDPS Rules. It can therefore be said that the substances under Schedule I to the Rules are more strictly restricted compared to the remaining psychotropic substances under the Schedule to the Act which are restricted more moderately in comparison. “On this aspect, our scheme is more or less similar to the scheme of the Convention on Psychotropic substances, 1971”.
Perusing several relevant precedents, the Court pointed out 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. Such was the position even before the decision in Sanjeev V. Deshpande (supra). It would be preposterous to say that no offence could be said to be made out when an accused deals with substances which are only mentioned under the Schedule to the Act. For then, the entire presence of the Schedule to the Act would have to be considered unnecessary to the scheme of the NDPS Regime. To render an entire Schedule nugatory could not have been the intention of the legislature.
The Court thus concluded that it cannot be said that the dealing in of “Buprenorphine Hydrochloride” would not amount to an offence under Section 8 of the NDPS Act owing to the fact that the said psychotropic substance only finds mention under the Schedule to the NDPS Act and is not listed under Schedule I of the NDPS Rules. There exists nothing to indicate that Rules 53 and 64 of the NDPS Rules respectively, are the governing rules in their respective Chapters, more so, when the language of the other rules in Chapters VI and VII respectively, are clear about their application to the substances mentioned under the Schedule to the Act as well.
Vis-a-vis prospective application of Sanjeev V. Deshpande (supra), the Court stated that there arises no occasion to declare the interpretation given to Section 8 of the NDPS Act and the relevant NDPS Rules, by the decision in Sanjeev V. Deshpande (supra), as prospectively applicable. The Court in Sanjeev V. Deshpande (supra), perhaps, did not think fit to confine or restrict its interpretation of Section 8 of the NDPS Act to future cases only. The Court clarified that the retrospective application of the dictum in Sanjeev V. Deshpande (supra) would not give rise to any implications as regards the rights of the accused persons under Article 20(1) of the Constitution. It cannot be reasonably argued 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 V. Deshpande (supra). Therefore, there remains no doubt that giving retrospective effect to the decision in Sanjeev V. Deshpande (supra) would be necessary considering the facts and circumstances in the background of which the Court is called upon to adjudicate these matters. The Court clarified that acquittals which have already been recorded as a consequence of the decision in State of Uttaranchal v. Rajesh Kumar Gupta, (2007) 1 SCC 355, and have attained finality, would not be unsettled in light of the overruling decision in Sanjeev V. Deshpande (supra) or the observations made by the Court.
With the afore-stated assessment, the Court noted that both the Trial Court and the High Court committed an error in holding that the offence under the provisions of the NDPS Act is not made out. The Trial Courts in both the appeals could also not have discharged/deleted the charge under the NDPS Act framed against the accused persons while disposing of an application under Section 216 CrPC. This is something not permissible within the criminal procedure and the High Court unfortunately failed to take notice of this aspect. Since the accused concerned in both the appeals were not acquitted in their respective trials; the Court direct that they be tried by the concerned Special Judge, NDPS, in accordance with law. The Trial Courts were directed to proceed with the trial and conclude it expeditiously.
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