DIRECTORATE OF REVENUE INTELLIGENCE versus RAJ KUMAR ARORA & ORS. (17/04/2025) — Supreme Court headnote

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Summary

The Supreme Court held that dealing in Buprenorphine Hydrochloride, a psychotropic substance listed in the Schedule to the NDPS Act but not in Schedule I of the NDPS Rules, 1985, is an offence under Section 8(c) of the Act, that the three-Judge Bench decision in Sanjeev V. Deshpande overruling Rajesh Kumar Gupta operates retrospectively to all pending cases without offending Article 20(1), though acquittals that have attained finality are not to be disturbed, and that a trial court cannot delete a charge or discharge an accused under Section 216 CrPC once charges are framed. Orders transferring the cases to the Metropolitan Magistrate under the Drugs and Cosmetics Act were set aside and the accused directed to be tried by the Special Judge.

Issues

Whether dealing in a psychotropic substance listed in the Schedule to the NDPS Act, 1985 but not in Schedule I of the NDPS Rules, 1985 constitutes an offence under Section 8(c) of the Act.
Whether the decision in Union of India v. Sanjeev V. Deshpande, which overruled State of Uttaranchal v. Rajesh Kumar Gupta, should operate prospectively, and whether its retrospective application offends Article 20(1) of the Constitution.
Whether, once a charge has been framed under Section 228 CrPC, an accused can be discharged or a charge deleted on an application under Section 216 CrPC.
Whether the NDPS Act and its Rules apply in addition to the Drugs and Cosmetics Act, 1940 under Section 80 of the NDPS Act, so that mention of a substance in the D&C regime does not exclude prosecution under the NDPS Act.

Provisions considered

Section 8(c), Narcotic Drugs and Psychotropic Substances Act, 1985Section 8(c) prohibits dealing in any narcotic drug or psychotropic substance except for medical or scientific purposes and in the manner and to the extent provided by the Act, Rules or orders, and in accordance with any licence, permit or authorisation. The Court held these conditions are cumulative; mere potential medical use is not enough, and dealing in a Schedule substance other than for medical or scientific purposes, or not in accordance with the Rules or licence conditions, is an offence. (¶¶ 53, 54, 55, 56, 79, 90, 156)
Section 2(xxiii) and the Schedule, Narcotic Drugs and Psychotropic Substances Act, 1985'Psychotropic substance' means any substance, salt or preparation included in the list specified in the Schedule to the Act; the term in Section 8 must be read with this definition, so all Schedule substances, including Buprenorphine (Item 92), are covered, and the Schedule to the Act is a superset of which Schedule I to the Rules is a more restricted subset. (¶¶ 52, 54, 69, 70, 90)
Sections 9 and 76, Narcotic Drugs and Psychotropic Substances Act, 1985The rule-making powers are expressly 'subject to' Section 8; the Rules exist to permit and regulate, not to prohibit, and cannot lay down standards inconsistent with Section 8 and the Schedule to the Act. (¶¶ 57, 58, 59, 90)
Rules 53 to 67A (Chapters VI, VII and VIIA, as on 27.09.2003), Narcotic Drugs and Psychotropic Substances Rules, 1985Rules 55, 57, 58, 60 and 61 require import certificates and export authorisations for all substances in the Schedule to the Act; Rules 65, 66 and 67 regulate manufacture under D&C licence conditions, possession and transport of all such substances; Rules 53 and 64 impose stricter restriction on Schedule I substances, which may be dealt with only for Chapter VIIA purposes. Following Sanjeev V. Deshpande, Rules 53 and 64 are exceptions, not the genus of their chapters, and the source of prohibition is Section 8, not the Rules. The 2015 recast of the Rules streamlined the language without changing their substance. (¶¶ 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 80, 81, 82, 83, 84, 85)
Section 80, Narcotic Drugs and Psychotropic Substances Act, 1985The Act and Rules are 'in addition to, and not in derogation of' the Drugs and Cosmetics Act, 1940 and its Rules; following Sanjeev V. Deshpande and Rakesh Kumar, where an offence under the D&C Act is made out the accused can also be prosecuted under the NDPS Act, the two enactments having distinct objects, and listing a substance in Schedule H of the D&C Rules does not take it outside the NDPS Act. (¶¶ 86, 87, 88, 89, 90, 157)
Article 20(1), Constitution of India'Law in force' means the law factually in existence at the time of the offence (Rao Shiv Bahadur Singh); an overruling decision does not create a new offence or an ex post facto law but declares what the statute always meant, so the retrospective application of Sanjeev V. Deshpande does not offend Article 20(1), and no vested right accrued to the accused from the overruled decision in Rajesh Kumar Gupta. (¶¶ 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 159)
Section 216, Code of Criminal Procedure, 1973Section 216 empowers a court to alter or add to a charge at any time before judgment, suo motu or on application, on the material on record and without prejudice to the accused; 'alter' means to vary an existing charge and make a different one. The provision confers no power to delete a charge or discharge an accused, and the Special Judges' orders holding that no NDPS offence was made out and transferring the files to the Magistrate were in effect impermissible discharges. (¶¶ 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 161)
Sections 227 and 228, Code of Criminal Procedure, 1973The power under Section 216 can be exercised only after a charge is framed under Section 228 and is not available where an accused has been discharged under Section 227; once charges are framed, the accused cannot thereafter be discharged under either Section 227 or Section 216 and must be convicted or acquitted at the end of the trial. (¶¶ 143, 154)

Held

To claim the exception in Section 8(c) of the NDPS Act, an accused must prove that the psychotropic substance was dealt with for a specified and real medical or scientific purpose, in the manner and to the extent provided by the Act, Rules and orders, and in accordance with any licence, permit or authorisation; the conditions are conjunctive, and an expansive reading that mere potential for medical use suffices would defeat the deterrent object of the Act. (¶¶ 54, 55, 56, 90)
Dealing in a psychotropic substance that appears in the Schedule to the NDPS Act but not in Schedule I of the NDPS Rules constitutes an offence under Section 8(c); Hussain, Ouseph, Ravindran, Sanjay Kumar Kedia, D. Ramakrishnan and the three-Judge Bench in Sanjeev V. Deshpande all so hold, Rajesh Kumar Gupta being the sole outlier and now overruled. To hold otherwise would render the entire Schedule to the Act nugatory. Rules 53 and 64 are not the governing rules of their chapters; the other rules in Chapters VI and VII plainly apply to all Schedule substances. (¶¶ 70, 71, 72, 73, 77, 78, 79, 80, 90, 156)
Under the scheme of the Rules, Schedule I substances must be dealt with strictly under the Rules and only for Chapter VIIA purposes, while other Schedule substances must also comply with the Rules but may additionally be dealt with for other medical or scientific purposes; manufacture in breach of D&C licence conditions contravenes Rule 65 and thereby Section 8; clarifying Sanjeev V. Deshpande, Schedule I substances are not absolutely prohibited but may be dealt with for the limited Chapter VIIA purposes, as the 2015 recast of the Rules makes explicit. (¶¶ 63, 65, 66, 69, 81, 85, 90)
Under Section 80 the NDPS Act and Rules operate in addition to and not in derogation of the Drugs and Cosmetics Act; the two Acts have distinct objects, and where a substance falls under both regimes offences under both may be constituted simultaneously, so the mention of a psychotropic substance in the D&C regime does not remove it from the NDPS Act. (¶¶ 87, 88, 89, 90, 157)
An overruling decision operates retrospectively by default, since a judgment declares what the statute always meant and the judge discovers rather than creates the law; prospective overruling is an exception that must be declared expressly and clearly, is to be invoked only where circumstances such as settled positions, administrative chaos, reliance in good faith or impact on large numbers demand it, and (following Jarnail Singh) may be declared by a later and even smaller Bench under Article 142. If applied, pending cases remain governed by the old law; otherwise all pending and future cases are governed by the overruling decision. (¶¶ 91, 92, 93, 94, 95, 96, 97, 98, 105, 113, 117, 122)
There is no overwhelming reason to declare Sanjeev V. Deshpande prospective; its conspicuous silence on prospectivity while overruling Rajesh Kumar Gupta deserves deference, and public interest and the object of the NDPS Act require retrospective application, so pending cases instituted before that decision are governed by the law as clarified by it. Acquittals already recorded on the basis of Rajesh Kumar Gupta that have attained finality will not be disturbed. (¶¶ 123, 135, 137, 158, 160)
Retrospective application does not offend Article 20(1): 'law in force' means the law factually in existence at the time of the offence, and the overruling of a decision is neither the creation of a new offence (unlike Section 304-B IPC in Soni Devrajbhai) nor an ex post facto law, the interpretation in Sanjeev V. Deshpande being neither novel nor unforeseeably expansive; no vested right can accrue to an accused from a judgment that declared a wrong proposition of law. (¶¶ 128, 132, 133, 134, 135, 136, 159)
Had the accused been acquitted on the strength of Rajesh Kumar Gupta, the Court could have declared them 'technically guilty' as in Cherukattil Gopalan without disturbing the acquittals; but as they were discharged, not acquitted, they must be tried in accordance with law. (¶¶ 138, 139, 140, 162)
Section 216 CrPC permits only the alteration of or addition to an existing charge, on the material on record and without prejudice to the accused; it confers no power to delete a charge or discharge an accused, and once charges are framed under Section 228 the accused cannot be discharged under Section 227 or Section 216 but must be acquitted or convicted at the end of the trial. Applications under Section 216 seeking discharge after charge, as deprecated in K. Ravi, are impermissible shortcuts. (¶¶ 143, 144, 149, 150, 151, 152, 154, 155, 161)

Result

Both appeals allowed; the High Court's orders dated 13.07.2011 and 20.03.2013 set aside; the accused in both appeals, not having been acquitted, to be tried by the Special Judge, NDPS, in accordance with law, the trial to be concluded expeditiously; Registry to send a copy of the judgment to all High Courts; pending applications disposed of.