Gujarat High Court
Mayank Girishbhai Shah vs Narcotics Control Bureau, Ahmedabad … on 11 June, 2025
NEUTRAL CITATION
R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025
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Reserved On : 08/05/2025
Pronounced On : 11/06/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3087 of 2025
With
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2025
In R/SPECIAL CRIMINAL APPLICATION NO. 3087 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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Approved for Reporting Yes No
Yes
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MAYANK GIRISHBHAI SHAH
Versus
NARCOTICS CONTROL BUREAU, AHMEDABAD ZONAL UNIT & ANR.
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Appearance:
MR. YATIN OZA, LD. SR. ADV. WITH MR PARICHAY N ASHAR(13304) for
the Applicant(s) No. 1
MR SHUSHIL R SHUKLA(5603) for the Respondent(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. By this application under Section 528 of the Bhartiya
Nagrik Suraksha Sanhita, 2023, the applicant seeks to invoke
the inherent powers of this Court praying for quashing of the
Special NDPS Case No.10 of 2022 pending before the learned
3rd Addl. Sessions Judge & Special NDPS Judge, Ahmedabad
(Rural) and all other ancillary proceedings arising therefrom.
2. The nuts and bolts of the case of the prosecution are that
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on 20.09.2021, an Intelligence Officer of the respondent No.1-
Department, namely, Shri Atul Yadav received a tip-off that a
courier Airway Bill No.561695954206 which was lying at DHL
Express (I) Pvt. Ltd. City Gold Center, Ground Floor, Behind
Police Chowki, Vejalpur, Ahmedabad (Gujarat) is suspected to
be containing contraband substance, on the basis of which, a
team of NCB officers was formed under the supervision of Shri
Atul Yadav for taking necessary action as per law. Thereafter,
Panchas were also called for who got acquainted about the
said information. Thereafter, after following necessary
procedure, one custom officer Shri Hem Vyas got acquainted
with the said information by the raiding team and asked about
the said consignment. Thereafter, the said consignment was
brought before the raiding party which was labelled as Airway
Bill No.5616954206. Then, upon a search being carried out of
the said consignment, 40 plastic jars labelled with eight
different Digestive Supplements (Hing Peda, Fruit Goli, Darksh
Vati, Hajma Goli, Anar Dana, Madhuri Imli, Jet Imly and Chaat
Goli) were recovered. Thereafter, a sample was taken from
each of the aforesaid jars and tested with the drug detection
kit, and on such test being carried out, each sample was found
to be tested positive for ‘opium’ which is a contraband
substance listed under the NDPS Act. Thereafter, the said
contraband substance was weighed with the weighing
machine, upon which, it was found to be 6.294 kilograms.
Then, the further mandatory procedure of seizure was also
carried out.
3. Following the aforesaid recovery of contraband substance
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‘opium’, one person, namely, Mayank G. Shah, i.e, the
applicant herein came to be apprehended on 21.09.2021, and
upon he being further enquired, he revealed that one
consignment containing same contraband is lying in his
warehouse viz. Shah Exim situated at Block No.255, Opp. GEB
Sub Station, Sanathal, Ahmedabad (Gujarat), and accordingly,
a seizure of 1.790 kgs of opium was made.
4. Thereafter, on 21.09.2021, the applicant was summoned
under Section 67 of the NDPS Act, wherein in his voluntary
statement, he revealed that he is involved in trafficking of
above seized opium. Consequently, complaint being
No.NCB/AZU/CR-16/2021 came to be registered under Sections
8(c), 18(b), 23(c), 27A, 29 and 35 of the NDPS Act, pursuant to
which, the applicant-Mayank G. Shah was put under arrest,
which ultimately, culminated into Special NDPS Case No.10 of
2022, which is pending trial.
5. Thereafter, the applicant applied for regular bail, which
was entertained by the learned trial court, and thereby
released the applicant herein on regular bail.
6. Thereafter, the applicant preferred a discharge
application before the trial court, which came to be rejected by
the trial court vide order dated 02.12.2024.
7. Thereafter, as the applicant could not assail the aforesaid
order passed in the discharge application, charge came to be
framed against the applicant and one another co-accused
under the relevant provisions of the NDPS Act.
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8. Being aggrieved, the applicant is here before this Court
with the present application.
9. Learned senior advocate Mr. Yatin Oza assisted by
learned advocate Mr. Parichay N. Ashar appearing for the
applicant, submits that the applicant herein is an innocent
person indulged in the legitimate business of import-export
having a good qualification. He submits that the applicant is
doing the business of Ayurvedic Medicines, more particularly,
“Kamini Vidravan Ras’ which is admittedly an infamous ‘over
the counter medicine’ with aphrodistac properties used to
increase men’s vitality and sexual functions. Learned senior
advocate Mr. Oza further submits that impugned complaint
invoking Sections 8(c), 18(b), 23(c), 27A, 29 and 35 of the
NDPS Act is filed with a complete non-application of mind since
the seized substances are nothing but commonly prescribed
medical tablets containing opium derivative, i.e, ‘morphine’.
He also submits that the entire complaint invoking the
aforesaid provisions of the NDPS Act is misconceived right from
the inception since the prosecution is sought to be pressed by
respondent No.1 and fashioned in terms of recovering opium,
whereas the chemical analysis / reports disclose the presence
of an opium derivative and not opium per se. Learned senior
advocate Mr. Oza submits that only on this glaring aspect
itself, the present application deserves consideration.
10. Learned senior advocate Mr. Oza submits that the
impugned complaint and the prosecution instituted thereupon
against the applicant and two others seems to be smacked
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with malice and prejudice. He further submits that the
applicant and two other came to be apprehended and
thereafter the investigation went on for about a long period of
two years, wherein all that is alleged and revealed is a record
of inculpatory material admitting indulgence in sending and
receiving the courier consignment containing Ayurvedic
medicines. The investigation neither unveils any aspect of
illegal manufacturing or selling of such nefarious medicines nor
is there any further actions taken by the Agency in denuding
the true perpetrators of an allegedly heinous crime against the
society. He, therefore, submits that in view of the fact that the
respondent No.1 selectively lodged prosecution and implicated
only individuals allegedly involved in forwarding the
consignments with no efforts whatsoever of unveiling the
channel of manufactures of the medicines, the present
application deserves consideration.
11. Learned advocate Mr. Oza has referred to the relevant
provisions of law, more particularly, Section 2 of the NDPS Act
and submits that as per Section 2(xv((b), ‘opium’ means ‘any
mixture, with or without any neutral material of the
coagulated juice of the opium poppy, but does not include any
preparation containing not more than 0.2 per cent of
morphine’. Learned senior advocate Mr. Oza also submits that
herein in the case on hand, only the spot analysis of the seized
contraband substance tested positive for the presence of
‘opium’, whereas the chemical analysis of the same reveals
the presence of ‘morphine’, which as per the definition, is an
opium derivative. Learned senior advocate Mr. Oza has drawn
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the attention of this Court to the definition of ‘opium
derivative’, and submits that the ‘medicinal opium, i.e., opium
which has undergone the process necessary to adapt it for
medicinal use in accordance with the requirements of the
Indian Pharmacopoeia or any other pharmacopoeia notified in
this behalf by the Central Government, and further that ‘all
preparations containing more than 0.2 per cent of morphine or
containing any diacetyl morphine’ would be considered as
opium derivative. Thus, from the above, it could be said that
‘morphine’ by itself does not fall within the definition of ‘opium’
and the same is an ‘opium derivative’ falling within the
definition of a ‘manufactured drug’ under the NDPS Act.
Learned senior advocate Mr. Oza then referred to the report
prepared by the FSL and submits that it is the specific case of
the prosecution that quantity of 2.2/2.4 per cent of morphine
was found to be present per 25 gram tablet, and therefore,
admittedly, in view of the relevant provisions incorporated by
the Legislature in the statute, it could safely be said that the
material alleged to have been seized as ‘opium’ is not an
‘opium’ but is an ‘opium derivative’. He, therefore, submits
that in lieu of the above, the rigors of prohibition as stipulated
under the NDPS Act would not attract in the present case since
the violating narcotic substance present in the seized
contraband is also medicinal opium which is covered under the
exception as carved out under Section 8(c) of the NDPS Act.
Learned senior advocate Mr. Oza submits that the fact of the
contraband containing medicinal opium also strikes down the
prosecution under Section 18(b) of the NDPS Act as charged
against the applicant. He, therefore, submits that on this
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ground also, the present application deserves consideration.
12. Learned senior advocate Mr. Oza submits that the
applicant did not have the knowledge of the fact that the
consignment which was received and sent by him contained
any prohibited narcotic drug. He further submits that the
applicant used to purchase the said tablet from the co-accused
and used to sent the said consignment to Australia to another
co-accused. Learned senior advocate Mr.Oza further submits
that it is an admitted position of fact that the applicant herein
purchased the said tablets/Ayurvedic medicines known as
Kamini Vidravan Ras which can be sold in the open market
without any prescription. The applicant had purchased the said
tablets and supposed to transport the said tablets/material in
the unlabelled bottles to Australia. He also submits that
assuming for a moment without admitting it that even if the
applicant had the knowledge that the seized medicines
contained violating substance opium derivative morphine,
even then such medicine comprising of medicinal opium would
fall within the ambit and purview of the ‘Drugs & Cosmetics
Act, 1940, more particularly, Ayurvedic, Siddha or Unani Drug
as defined under Section 3(a) of the said Act. He submits that
assuming for the sake of argument that the applicant is
involved in the crime of transporting unlabelled/mislabelled
Ayurvedic medicines, even then the same constitutes an
offence punishable under Chapter IV A of the ‘Drugs &
Cosmetic Act, 1940. Thus, by no stretch of imagination, it can
be said that the applicant herein is directly or indirectly
connected with any offence punishable under the provisions of
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the NDPS Act, and therefore, not a single section as mentioned
in the body of the complaint, is attracted in the present case.
13. Learned senior advocate Mr. Oza then referred to Section
3(a) of the Drugs & Cosmetics Act and submits that at the
most it can be said that the applicant has committed the
offence of misbranding of drugs under Section 33(e) of the said
Act as the product was not labelled in the prescribed manner.
Moreover, during the course of investigation, confessional
statement of the applicant was recorded, and on the strength
of the said statement, and on completion of the investigation,
at the time of submitting charge-sheet, the prosecuting agency
has heavily relied upon the said confessional statement.
Learned senior advocate Mr. Oza submits that it is a settled
position of law that the confession made by the accused before
the police while in custody is not admissible in evidence in the
eye of law, and solely on the ground of statement recorded by
the investigating officer during the course of investigation
under Section 67, the order of conviction could not have been
passed. He submits that except the confessional statement of
the applicant, no other concrete material is collected by the
investigating officer during the course of investigation,
establishing any nexus of the present applicant with the
commission of the alleged crime. Learned senior advocate Mr.
Oza also submits that it is also an admitted position of fact that
at the time of enacting the provisions of the NDPS Act, with a
sole intention to curb the menace of narcotic drugs prevailing
in the Society, strictest provisions were incorporated in the
statute, however, at the time of doing so, the Legislature was
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also mindful of the misuse of the said provision against the
innocent persons, and therefore, certain mandatory
requirements have been imposed upon the investigating
officer concerned that he has to follow the procedure as
mentioned in the statute in a stricto sensu manner. Learned
senior advocate Mr. Oza submits that thus at the time of
seizure of the Muddamal article, certain mandatory conditions
are required to be followed by the investigating officer, and if
the investigating officer fails to fulfill those conditions in its
true perspective, then certainly benefit of doubt would go in
favour of the applicant. Here, in the case on hand, at the time
of seizure, the concerned investigating officer has not
complied with the mandatory terms and conditions as
envisaged in the Act itself. Further, the Hon’ble Apex Court has
also issued certain guidelines to the investigating officer that
sampling of the seizure article shall be done under the
supervision of the Magistrate in a manner that ‘no sooner the
seizure of any Narcotic Drugs and Psychotropic and controlled
substances and conveyances is effected, the same shall be
forwarded to the officer in-charge of the nearest police station
or to the officer empowered under Section 53 of the Act. The
officer concerned shall then approach the Magistrate with an
application under Section 52A(ii) of the Act, which shall be
allowed by the Magistrate as soon as may be required under
sub-section (3) of Section 52A, and sampling shall be done
under the supervision of Magistrate. Learned senior advocate
Mr. Oza also submits that it is also an admitted position of fact
that if no proceedings under Section 52A of the NDPS Act is
undertaken by the investigating officer for preparing an
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inventory and obtaining samples in the presence of the
jurisdictional Magistrate, in that event, the FSL report is
nothing but a waste paper and cannot be read in evidence. So
far as the confession made by the applicant before the police
is concerned, the same is not admissible in evidence as the
same is hit by Section 25 of the Evidence Act. To buttress his
aforesaid submissions, learned senior advocate Mr. Oza relies
upon the following case laws;
(i) In the case of Union of India vs. Mohanlal & Ors., reported
in (2016) 3 SCC 379;
(ii) In the case of Babu Varghese vs. Bar Council of Kerala,
reported in 1999 (0) AIJEL-SC 2355;
(iii) In the case of Mohammed Khalid vs. State of Telengana,
reported in 2024 (5) SCC 393;
14. In such circumstances, referred to above, learned senior
advocate Mr. Oza prays that there being merit in this
application, the same be allowed and the relief, as prayed for,
be granted.
15. On the other hand, the present application has been
vehemently opposed by learned advocate Mr. Shushil Shukla
appearing for the respondent No.1. He submits that it is an
admitted position of fact that on the basis of the tip-off
received by the investigating officer about certain illegal
activities being carried out by the accused persons, they
immediately rushed to the office of the DHL Courier, and in the
presence of the Panchas, the consignment was taken out and a
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preliminary testing of the said product had been carried out in
the presence of the said Panchas, and upon such testing being
carried out, the product supposed to be sent to Australia by
the applicant was found to be positive for opium, and
therefore, the investigation was commenced, and accordingly,
they have reached to the premises of the applicant, where
also, they found the similar type of product having contents of
opium. He submits that the controversy involved in the present
case is not as simple as projected by the learned senior
advocate Mr. Oza. Learned advocate Mr. Shukla submits that
the seized substance constitutes ayurvedic medicine is
demonstrably false and misleading, as the chemical
examination reports from the FSL which is placed on record
shows that the contents of opium is found in the said product
with a net weight of 3.220 kg, exceeding the commercial
quantity of 2.5 kg. He submits that the said finding
scientifically refutes the claim about ‘Kamini Vidravan Ras’
particularly given that the said jars were labelled as ‘Hajma
Goli, Urban Desi, Fruit Goli etc., which is inconsistent with
standard packaging and nomenclature for the purported
“Kamini Vidravan Ras’ and the absence of declared medicinal
ingredients or relevant licenses (AYUSH or FSSAI)to
substantiate said claim. Learned advocate Mr. Shukla further
submits that the applicant’s reliance on ‘Kamini Vidravan Ras’
is further undermined by is proscription in Australia, and even
if the substance was an ayurvedic medicine containing opium,
the NDPS Act, with its specific provisions in Sections 2(xi) and
2(xiv) concerning narcotic drugs and manufactured drugs,
supersedes the Drugs and Cosmetics Act. He also submits that
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the applicant erroneously contends that the seized substance,
containing morphine (which is an opium derivative), qualifies
as a ‘manufactured drug’ under Section 2(xi) of the NDPS Act,
thereby escaping the rigors of Sections 8(c), 18(b)and 23(c) of
the NDPS Act, and the said arguments untenable in law.
Learned advocate Mr. Shukla has drawn the attention of this
Court to the definition of opium and submits that ‘any mixture
of the coagulated juice of the opium poppy’ within the
definition of opium, provided it exceeds the 0.2% morphine,
however, in the case on hand, the CRCL report confirms the
presence of 2.2-2.4% morphine, squarely bringing the
substance under ‘opium’ as defined.
16. Learned advocate Mr.Shukla has also drawn the attention
of this court to the definition of ‘manufacture drugs’, which
includes opium derivatives. It is further defined that even if
classified as a ‘manufactured drug’, under Section 2(xi), such
preparations remain subject to NDPS prohibitions unless
exempted for medical/scientific use under Section 8(c). He
submits that the applicant has miserably failed to produce any
license or evidence of lawful medicinal purpose under the Act,
not even along with the present application. Learned advocate
Mr. Shukla further submits that the applicant’s reliance on the
Drugs & Cosmetics Act, 1940 to argue that the substance is an
Ayurvedic medicine is misplaced in view of the fact that the
seized jars bore labels like ‘Hajma Goli’ and ‘Urban Desi’ with
no disclosure of medicinal ingredients of AYUSH/FSSAI
certifications. The genuine ‘Kamini Vidravan Ras’ would
comply with labelling requirements under Section 3(a) of the
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Drugs & Cosmetics Act. Further, the substance’s ban in
Australia as an opium product further negates its classification
as a legitimate Ayurvedic export. He submits that the total
seized quantity (3.220 kg) exceeds the commercial threshold
for opium (2.5 kg) under the NDPS Act. The applicant’s
calculation of morphine content (70.30 g) is irrelevant, as the
Act criminalizes possession/trafficking of the total weight of the
mixture containing the narcotic drug, not just the isolated
alkaloid. Further, Section 80 of the NDPS Act grants it an
overriding effect. Even if the substance were an Ayurvedic
Drug, its narcotic content and illicit trafficking attract NDPS
penalties. Thus, the seized substance is opium under the NDPS
Act, and its trafficking in commercial quantity attracts sections
8(c), 18(b) and 23(c). The applicant’s claim of it being a
‘manufactured drug’ or Ayurvedic medicine is just an
afterthought to distract the Hon’ble Court from clear cut case
of illicit trafficking of commercial quantity of narcotic drugs.
The prosecution’s case is firmly grounded on scientific reports,
financial trails, and digital evidence, warranting dismissal of
the present application.
17. Learned advocate Mr. Shukla further submits that the
contraband substance was found from the conscious
possession of the applicant-accused. Moreover, the lab report
also confirms the presence of opium in the said product. He
submits that the applicant’s claim of being falsely implicated is
baseless. The seized substance tested positive for opium, and
the ‘Ayurvedic Product’ defense is a cover up. The labels of
seized jars (Hajma Goli, Urban Desi) contradict his assertion of
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exporting legitimate medicine. The prosecution has already
established a money trail, digital evidence, and confessions
under section 67 of the NDPS Act. Learned advocate Mr.
Shukla submits that in view of the above, the prosecution
earnestly prays for the dismissal of the present application and
the trial must proceed unhindered to secure justice, adhere to
the statutory obligations under Section 37 of the NDPS Act and
deter the grave societal menace of drug trafficking. The cases
against Janak Patel and the applicant are inextricably
interlinked, as both alongwith co-accused Pramod Bansal
jointly conspired to traffic commercial quantities of opium.
Evidences like coordinated financial transactions, digital
communications, and repeated courier consignments routed to
Australia at Patel’s instance, underscores their collective
culpability and habitual engagement in illicit activities.
18. In such circumstances, referred to above, learned
advocate Mr. Shukla prays that there being no merit in the
present application, the same be dismissed.
19. Having heard the learned counsel appearing for the
parties and having considered the materials available on
record, the only question that falls for my consideration is
whether the relief, as sought for, should be granted?
20. Before delve into the merits of the matter, I would like to
straight way, at the very threshold, refer to and rely upon the
decision of the Hon’ble Apex Court, penned by His Lordship
Justice J.B. Pardiwala in the case of Directorate of Revenue
Intelligence vs. Rajkumar Arora & Ors., Criminal Appeal
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No.1319 of 2013 with Criminal Appeal No.272 of 2014, decided
on 17.04.2025, as the said judgment is applicable to the facts
of the present case in all fours. The relevant observations from
the aforesaid judgment are as under;
“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 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)Page 15 of 60
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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 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 deficienciesPage 16 of 60
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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)
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 andPage 17 of 60
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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 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
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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.
47. Article 11 elaborates on record-keeping and provides
that – (a) In respect of substances in Schedule I,Page 19 of 60
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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 non-
proprietary 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 anPage 20 of 60
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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 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,Page 21 of 60
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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 up to
the standards as strict as the Schedule I substances.
51. On a closer look at the substances mentioned in the
Schedules to the Convention, it is evident that
Buprenorphine and its salt Buprenorphine Hydrochloride
is listed under Schedule III. Therefore, according to the
scheme of the Convention, the manufacture, distribution,
stocking, and possession of Buprenorphine and its salt
Buprenorphine Hydrochloride shall be limited to medical
and scientific purposes in addition to the limited
purposes as provided in Article 4. The Convention casts a
mandate upon States that the manufacture of, trade in
and distribution of Buprenorphine and its salt
Buprenorphine Hydrochloride be under a licence or other
similar control measure. The only exception being that
such a licence or other control measure need not
necessarily apply to persons who are duly authorised to
perform therapeutic or scientific functions.
b. Relevant Statutory Provisions of the NDPS Act and its
Rules
52. Section 2(xxiii) of the NDPS Act defines a
“Psychotropic substance” as – “any substance, natural or
synthetic, or any natural material or any salt or
preparation of such substance or material included in the
list of psychotropic substances specified in the Schedule”
A bare reading of the definition would indicate that all
items listed in the Schedule to the Act along with its salts
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and preparations come within the purview of a
“psychotropic substance” under the NDPS Act.
53. Section 8 of the NDPS Act prohibits certain operations
and reads as thus:
8. Prohibition of certain operations.– No person shall –
(a) cultivate any coca plant or gather any portion of coca
plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase,
transport, warehouse, use, consume, import inter-State,
export inter-State, import into India, export from India or
tranship 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 and in a
case where any such provision, imposes any requirement
by way of licence, permit or authorisation also in
accordance with the terms and conditions of such
licence, permit or authorisation:
Provided that, and subject to the other provisions of this
Act and the rules made thereunder, the prohibition
against the cultivation of the cannabis plant for the
production of ganja or the production, possession, use,
consumption, purchase, sale, transport, warehousing,
import inter-State and export inter-State of ganja for any
purpose other than medical and scientific purpose shall
take effect only from the date which the Central
Government may, by notification in the Official Gazette,
specify in this behalf:
Provided further that nothing in this section shall apply to
the export of poppy straw for decorative purposes.
(Emphasis supplied)
54. The mandate under Section 8 is that no person shall
produce, manufacture, possess, sell, purchase, transport,
warehouse, use, consume, import inter-State, export
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inter-State, import into India, export from India or
tranship (hereinafter collectively referred to as “deal
in/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
provisions of this Act or the rules or orders made
thereunder. In a case where any such provision imposes
any requirement by way of licence, permit or
authorisation, the narcotic drugs and psychotropic
substances must also be dealt in accordance with the
terms and conditions of such licence, permit or
authorisation. The term “psychotropic substance”
mentioned in Section 8 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.
55. 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
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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.
56. 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.
57. Section 9 of the NDPS Act empowers the Central
Government to permit and regulate certain activities
subject to the provisions of Section 8. The same reads
thus:
“9. Power of Central Government to permit, control and
regulate.–
(1) Subject to the provisions of section 8, the Central
Government may, by rules–
(a) permit and regulate–
xxx xxx xxx
(vi) the manufacture, possession, transport, import inter-
State, export inter-State, sale, purchase, consumption or
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use of psychotropic substances;
(vii) the import into India and export from India and
transhipment of narcotic drugs and psychotropic
substances;
(b) prescribe any other matter requisite to render
effective the control of the Central Government over any
of the matters specified in clause (a).
(2) In particular and without prejudice to the generality of
the foregoing power, such rules may–
xxx xxx xxx
(i) prescribe the forms and conditions of licences or
permits for the manufacture, possession, transport,
import inter-State, export inter-State, sale, purchase,
consumption or use of psychotropic substances, the
authorities by which such licences or permits may be
granted and the fees that may be charged therefor;
(j) prescribe the ports and other places at which any kind
of narcotic drugs or psychotropic substances may be
imported into India or exported from India or
transhipped; the forms and conditions of certificates,
authorisations or permits, as the case may be, for such
import, export or transhipment; the authorities by which
such certificates, authorisations or permits may be
granted and the fees that may be charged therefor.”
58. Section 76 of the NDPS Act also empowers the
Central Government to make rules for carrying out the
purposes of the NDPS Act and reads thus:
“76. Power of Central Government to make rules–
(1) Subject to the other provisions of this Act, the Central
Government may, by notification in the Official Gazette,
make rules for carrying out the purposes of this Act.
(2) Without prejudice to the generality of the foregoing
power, such rules may provide for all or any of the
following matters, namely:–
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xxx xxx xxx
(e) the conditions and the manner in which narcotic
drugs and psychotropic substances may be supplied for
medical necessity to the addicts registered with the
Central Government and to others under sub-section (1)
of section 71;
xxx xxx xxx
(h) any other matter which is to be, or may be,
prescribed.”
59. 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.
60. Rule 2(k) of the NDPS Rules, 1985, states that –
“words and expressions used herein and not defined, but
defined in the Act shall have the meanings respectively
assigned to them in the Act.”. Therefore, any reference
to “psychotropic substances” under the NDPS Rules must
relate to the definition provided under Section 2(xxiii) of
the NDPS Act, which consists of the entire list of
psychotropic substances enumerated under the Schedule
to the Act. Chapter VI of the NDPS rules relate to the
import, export and transhipment of narcotic drugs and
psychotropic substances and Chapter VII deals with the
manufacture, sale, purchase, consumption, use,Page 27 of 60
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possession and transport of psychotropic substances.
Chapter VIIA details certain special provisions regarding
the manufacture, possession, transport, import-export,
purchase and consumption of narcotic drugs and
psychotropic substances for medical, scientific and
training purposes. It would be apposite to mention at this
stage that the NDPS rules have undergone some
significant changes over the years. However, our inquiry
would be limited to the version of the NDPS Rules as it
existed during the time the offence is alleged to have
been committed in the present case i.e., as on
27.09.2003.
61. Chapters VI and VII respectively, contain Rules 53 to
63 and 64 to 67 respectively. Under Chapter VI, Rule 53
provides for a general prohibition and states that subject
to the other provisions of this Chapter, the import into
and export out of India of the narcotic drugs and
psychotropic substances specified in “Schedule I
appended to the Rules” is prohibited. However, an
exception to this general rule was carved out under its
first proviso by stating that nothing in this rule shall
apply in case “the drug substance” is imported into or
exported out of India subject to an import certificate or
export authorisation issued under the provision of this
Chapter and for the purpose mentioned under Chapter
VIIA. The expression “the drug substance” mentioned in
the proviso must naturally be read to mean a “Schedule I
substance” since the language of Rule 53 is phrased such
that it alludes to a Schedule I substance only. Therefore,
in short, the import and export of narcotic drugs and
psychotropic substances specifically mentioned under
Schedule I of the Rules is generally disallowed provided
that person may import and export them, with a valid
import certificate or export authorisation, for the limited
purposes mentioned under Chapter VIIA.
62. Rule 55 on the ‘Application for an Import Certificate’
provides that, subject to Rule 53 as enumerated above,
no narcotic drug or psychotropic substance specified in
the “Schedule of the Act” shall be imported into India
without an import certificate, in respect of the
consignment, issued by the issuing authority, as per the
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form appended to the Rules. Rule 57 on ‘Transit’ states
that subject to the provisions of Section 79 of the NDPS
Act and Rule 53, no consignment of any narcotic drug or
psychotropic substance specified in the “Schedule of the
Act” shall be allowed to be transited through India unless
such consignment is accompanied by a valid export
authorisation in this behalf issued by the Government of
the exporting country. Rule 58 relating to the ‘Application
for Export Authorisation’ provides that, subject to Rules
53 and 53A, no narcotic drugs or psychotropic
substances specified in the “Schedule of the Act” shall be
exported out of India without an export authorisation in
respect of the consignment, issued by the issuing
authority in the requisite form appended to the Rules.
Rule 60 relating to ‘Transhipment’ provides that, subject
to the provisions of Section 79 of the NDPS Act and Rule
53, no consignment of narcotic drug or psychotropic
substance specified in the “Schedule to the Act” shall be
allowed to be transhipped at any port in India save with
the permission of the Collector of Customs. Rule 61 on
the ‘Procedure for Transhipment’ states that while
allowing any consignment of narcotic drug or
psychotropic substance specified in the “Schedule to the
Act” to be transhipped, the Collector of Customs shall
inter alia satisfy himself that the consignment is
accompanied by a valid export authorisation issued by
the exporting country.
63. What is discernible from the aforementioned rules
under Chapter VI is that the import into and export out of
India of all psychotropic substances (as listed in the
Schedule to the Act) must be accompanied by a valid
import certificate and export authorisation issued by the
issuing authority in India. As regards the transit and
transhipment of any psychotropic substance (as listed in
the Schedule to the Act) in India, a valid export
authorisation issued by the exporting country is a
requisite. On the other hand, what Rule 53 seeks to
achieve is to restrict the import and export of substances
enumerated in Schedule I of the Rules to a pre-
determined set of purposes as explained under Chapter
VIIA, despite having obtained an import certificate or
export authorisation under the other rules of this
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Chapter. This provision i.e., Rule 53 relating to the
Schedule I substances must not be flouted and this is
especially evident through the phrase “subject to Rule
53” featuring in almost every rule under this Chapter. It
is therefore, clear that, as far as import or export is
concerned, the substances mentioned in Schedule I
appended to the Rules are more strictly regulated or
restricted in comparison to the larger list of psychotropic
substances mentioned in the Schedule to the Act.
However, this is not to say that the psychotropic
substances mentioned only in the Schedule to the Act are
unregulated. Furthermore, it also cannot be said that the
substances mentioned in Schedule I of the NDPS Rules
are absolutely prohibited from being imported or
exported as per Section 8 of the NDPS Act since they are
clearly allowed to be validly imported and exported for
the limited purposes enumerated under Chapter VIIA.
64. Under Chapter VII, Rule 64 on ‘General Prohibition’
states that no person shall manufacture, possess,
transport, import inter-State, export inter-State, sell,
purchase, consume or use any of the “psychotropic
substances specified under Schedule I” of the Rules. Rule
65 relating to the ‘Manufacture of psychotropic
substances’, under sub-rule (1), provides that, subject to
the provisions of sub- rule (2), the manufacture of any of
the psychotropic substances other than those specified in
Schedule I (i.e., those mentioned only under the
Schedule to the Act) shall be in accordance with the
conditions of a licence granted under the Drugs and
Cosmetics Rules, 1945 framed under the Drugs and
Cosmetics Act, 1940, by an authority in charge of Drugs
Control in a State appointed by the State Government in
this behalf. Sub-rule (2) states that the authority in
charge of drugs control in a State/the Licensing Authority
shall consult the Drugs Controller (India) with regard to
the assessed annual requirements of each of the
psychotropic substance (which has been referred to in
sub-rule (1) i.e., the substances mentioned only under
the Schedule to the Act) in bulk form in the country and
after taking into account the requirement of such
psychotropic substances in the State, as also the
quantity of such substance required for supply to other
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manufacturers outside the State and the quantity of such
substance required for reasonable inventory to be held
by a manufacturer, the authority in charge of drugs
control in a State/the Licensing Authority shall specify, by
order, a limit to the quantity of such substance which
may be manufactured by the manufacturer in the State.
Sub-rule (3) provides that the specific quantity which
may be manufactured by a specific licensee in a year
shall be intimated by the Licensing Authority to the
licensee at the time of issuing the licence. Then, there
are two provisos to Rule 65 sub-rule (3) which were
inserted vide notification dated 25th June, 1997 w.e.f
27.06.1997. Through the first proviso, an exception has
been carved out under the Rule by stating that nothing
contained in this rule shall apply in case the
“psychotropic substances specified in Schedule I” are
manufactured, possessed, transported, imported inter-
State, exported inter-State, sold, purchased, consumed
or used subject to other provisions of this Chapter which
apply to psychotropic substances which are not included
in Schedule I and for the purposes mentioned in Chapter
VIIA. The second proviso contemplates that the authority
in charge of drugs control in a State shall consult the
Narcotics Commissioner before issuing a licence under
Rule 65 in respect of psychotropic substances included in
“Schedule I appended to the Rules” and Schedule III
appended to the Rules as well.
65. What can be discerned from the Rules 64 and 65
respectively, elaborated hereinabove is that: First, the
manufacture of all psychotropic substances (as listed in
the Schedule to the Act) must be in accordance with the
conditions prescribed in the licence granted under the
D&C Rules and the permissible quantity to be
manufactured would be intimated to the licensee at the
time the licence is issued. Notwithstanding the
prohibition to deal in psychotropic substances contained
in Section 8(c) of the NDPS Act, the manufacture thereof
is permitted subject to compliance with the D&C Act and
its Rules. Secondly, there is a general rule absolutely
prohibiting the manufacture, possession, transport,
import inter-State, export inter-State, sale, purchase,
consumption or use of any of the psychotropic
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substances which find mention in Schedule I appended to
the Rules. However, the above activities can be done vis-
á-vis the substances mentioned in Schedule I appended
to the Rules if their manufacture, possession, transport,
import inter-State, export inter-State, sale, purchase,
consumption or use is in accordance with other
provisions of the Chapter which generally apply to all
psychotropic substances (as listed in the Schedule to the
Act) and for the limited purposes mentioned under
Chapter VIIA. In other words, Schedule I substances can
also be dealt in, in due compliance with the rules
applicable generally to all the psychotropic substances
but specifically only for the purposes mentioned under
Chapter VIIA. However, while issuing a licence of
manufacture with respect to the Schedule I substances,
the Licensing Authority shall consult the Narcotics
Commissioner. Therefore, Rules 64 and 65 respectively,
permit the manufacture of psychotropic substances
mentioned under Schedule I of the Rules however subject
to certain provisions and purposes. This can be culled out
from a holistic reading of Rules 64 and 65 respectively,
and the two provisos which follow Rule 65(3). Thirdly, the
manufacture of all psychotropic substances (as listed in
the Schedule to the Act), and those mentioned under
Schedule I of the Rules specifically for the purposes
elaborated under Chapter VIIA, in violation of the
conditions of licence of manufacture issued under the
D&C Act would amount to a contravention of Rule 65 of
the NDPS Rules and thereby Section 8 of the NDPS Act
itself. Therefore, when such a contravention of the
conditions of licence occurs, it cannot be said that an
offence under the NDPS Act would not be made out and
that the contravention would be solely covered by the
D&C regime.Due to the operation of Rule 65, violation of
any of the conditions of licence under the D&C Act read
with its Rules would ipso facto tantamount to a violation
of the NDPS Act read with its Rules as well.
66. Rule 66 on ‘Possession etc. of psychotropic
substances’ states that no person shall possess any
psychotropic substance (as listed in the Schedule to the
Act) for any of the purposes covered by the D&C Rules,
unless he is lawfully authorised to possess such
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substance for any of the said purposes under these rules.
Therefore, what is being conveyed herein is that as far as
substances mentioned under Schedule I are concerned,
they can be possessed only for the purposes mentioned
under Chapter VIIA, and as far as the other substances
not being Schedule I substances but which are listed in
the Schedule to the Act are concerned, they can be
possessed for the purposes mentioned under Chapter
VIIA and also for other purposes which necessarily fall
under the broader considerations of medical or scientific
purposes as mentioned under Section 8 of the NDPS Act.
This compliance is in addition to the accused persons
possessing the said substances in accordance with the
purposes elaborated under the D&C Rules and the
requirements thereunder. Sub-rule (2), however, allows
any research institution or a hospital or a dispensary
maintained or supported by the Government or local
body or by charity or voluntary subscription, which is not
normally authorised to possess the psychotropic
substances under the D&C Rules, or any person who is
not so authorised under the D&C Rules, to possess a
reasonable quantity of such substance as may be
necessary for their genuine scientific or medical
requirements or both, for such period as is deemed
necessary by the said research institution or hospital or
dispensary or person, as the case may be. In case, of an
individual person, possessing the substance for his
personal medical use, the quantity shall not exceed one
100 dosage units at a time. The research institution,
hospital and dispensary referred to herein shall maintain
proper accounts and records in relation to the purchase
and consumption of the psychotropic substance in their
possession.
67. Rule 67 on ‘Transport of psychotropic substance’
provides that, subject to the provisions of Rule 64, no
consignment of psychotropic substance shall be
transported, imported inter-State or exported inter-State
unless such a consignment is accompanied by a
consignment note appended to the Rules and in the
manner provided under the Rules. The consignor and
consignee must keep the consignment note for a period
of two years and the said note may be inspected at any
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time by an officer authorised in this behalf by the Central
Government. This Rule would again apply to all
psychotropic substances (as mentioned under the
Schedule to the Act).
68. At this stage, it may be observed that it was vide a
notification dated 25th June, 1997 that Chapter VIIA
containing Rule 67A came to be inserted in the NDPS
Rules. Chapter VIIA states that, notwithstanding anything
contained in the foregoing provisions of these Rules, a
narcotic drug or psychotropic substance may be used for
– (i) scientific requirements including analytical
requirements of any Government laboratory or any
research institution in India or abroad; or (ii) very limited
medical requirements of a foreigner by a duly authorised
person of a hospital or any other establishment of the
Government especially approved by that foreign
Government; or (iii) the purpose of de-addiction of drug
addicts by the Government or local body or by an
approved charity or voluntary organisation or by such
other institution as may be approved by the Central
Government. The persons performing medical or
scientific functions as mentioned hereinabove shall
maintain records concerning the acquisition of the
substance and the details of their use in Form 7 of these
rules and such records are to be preserved for at least
two years. Furthermore, a narcotic drug or psychotropic
substance may be supplied or dispensed for use to a
foreigner pursuant to a medical prescription only from
authorised licensed pharmacists or other authorised
retail distributors designated by authorities responsible
for public health.
69. 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, 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
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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. The difference as regards these
substances however is that while they may be dealt with
for the purposes enumerated under Chapter VIIA of the
NDPS Rules, they can also be dealt with for other
purposes, provided that those purposes strictly fall under
the larger umbrella of “medical or scientific purposes” as
provided for in Section 8 of the NDPS Act. Whether the
accused has dealt with it within the confines of the
expression “medical or scientific purposes” must
obviously be determined on the facts and circumstances
of each case. 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. The different levels in
restriction could be seen as the primary reason behind
providing two different schedules, i.e., one under the Act
and another under the Rules. Moreover, the Schedule to
the Act can be considered as a superset of all
psychotropic substances wherein those substances
mentioned under Schedule I of the Rules form a small,
more restricted subset of the larger superset.
77. Again in D. Ramakrishnan v. Intelligence Officer,
Narcotic Control Bureau reported in (2009) 14 SCC 603,
the appellant and a co-accused were engaged in the
internet pharmacy business and were alleged to have
exported drugs abroad including “Alprazolam”,
“Lorazepam” and “Nitrazepam” which find place at S.
Nos. 30, 56 and 64 of the Schedule to the NDPS Act
respectively. Since the activities were carried on without
a valid export authorisation as required under the NDPS
regime, the appellant and his co-accused were
prosecuted under Section 8(c) read with Sections 22, 23,
25, 27-A, 53, 53-A and 58 of the NDPS Act. Taking
recourse to Rajesh Kumar Gupta (supra), it was argued
that the drugs being Schedule G and H drugs under the
D&C Rules and not mentioned in Schedule I to the NDPS
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Rules, its export thereof would not attract the provisions
of Rule 58 of the NDPS Rules which requires an export
authorisation. This is because Rules 53 and 64
respectively being the genus and dealing with
substances under Schedule I of the NDPS Rules would
mean that Rule 58 is also applicable only to such
Schedule I substances. Furthermore, it was contended
that since the drugs were used for medicinal purposes,
the same is acknowledged in terms of the proviso under
Section 8(c) of the NDPS Act. However, this Court took
the view that the fact that the appellant and his co-
accused had obtained licences under the D&C Act with a
general permission for import and export did not enure
any particular benefit to them since the D&C Act does
not deal with exports. The appellant and his co-accused
being licensees were thus required to comply with the
specific requirements of the NDPS Act and its Rules.
Hence, an offence under Section 8(c) was said to have
been made out in the absence of an export authorisation
and it was held that the application for bail was rightly
rejected by the Special Judge as also the High Court. The
relevant observations are as thus:
“13. The appellant and his co-accused are said to
have got licences under the Drugs and Cosmetics
Act, 1940. They had got general permission for
import and export.
14. Section 80 of the Act provides that the
provisions of the Act or the Rules made thereunder
are in addition to, and not in derogation of the
Drugs and Cosmetics Act, 1940 or the Rules made
thereunder. The Drugs and Cosmetics Act, 1940
does not deal with exports. The provisions of the
Customs Act do. The licensees, therefore, were,
thus, required to comply with the specific
requirements of the Act and the Rules. It is not
denied or disputed that the appellant neither
applied for nor granted any authority to export by
the Narcotic Commissioner or any other officer who
is authorised in this behalf.
15. We, therefore, are of the opinion that the High
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Court is right in opining that the decision of this
Court in Rajesh Kumar Gupta [(2007) 1 SCC 355 :
(2007) 1 SCC (Cri) 356] is not applicable to the facts
of this case.” (Emphasis supplied)
78. A three-Judge Bench decision of this Court in Union of
India and Another v. Sanjeev V. Deshpande reported in
(2014) 13 SCC 1 related to a batch of matters, all
pertaining to prosecutions under the provisions of the
NDPS Act wherein each one of the accused was alleged
to have been in possession of a psychotropic substance
only mentioned under the Schedule to the Act. In some of
the cases bail was granted by the concerned High Court
and in few others, bail was denied. This Court examined
the legality of the conclusion that the absence of mention
of a particular psychotropic substance in Schedule I to
the Rules excludes the application of Section 8,
notwithstanding the fact that such a drug is included in
the Schedule to the Act.
i. First, this Court in its decision analysed the true scope
and ambit of Section 8(c) of the NDPS Act and stated that
Section 8(c) in no uncertain terms prohibits the dealing in
any manner in any narcotic drug or psychotropic
substance. However, an exception to such prohibition is
also contained in the said section and that is, that the
dealing in any narcotic drug or psychotropic substance
would be permitted “in the manner and to the extent
provided by the provisions of this Act or the Rules or
Orders made thereunder”. Therefore, it was declared that
a twin condition must be fulfilled i.e., the dealing must be
for medical or scientific purposes AND in the manner and
to the extent provided by the provisions of the Act, Rules,
or Orders made thereunder and the Court stated as thus:
“24. Before we examine the correctness of various
submissions, we deem it appropriate to analyse and find
out the true scope and ambit of Section 8(c). Section 8(c)
in no uncertain terms prohibits the dealing in any manner
in any narcotic drug or psychotropic substance. However,
an exception to such prohibition is also contained in the
said section.
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“8. Prohibition of certain operations.–
No person shall –
***
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 and in a
case where any such provision, imposes any requirement
by way of licence, permit or authorisation also in
accordance with the terms and conditions of such
licence, permit or authorisation:”
The exception being that dealing in any narcotic drug or
psychotropic substance is permitted “in the manner and
to the extent provided by the provisions of this Act or the
Rules or Orders made thereunder”.
25. In other words, dealing in narcotic drugs and
psychotropic substances is permissible only when such
dealing is for medical purposes or scientific purposes.
Further, the mere fact that the dealing in narcotic drugs
and psychotropic substances is for a medical or scientific
purpose does not by itself lift the embargo created under
Section 8(c). Such a dealing must be in the manner and
extent provided by the provisions of the Act, Rules or
Orders made thereunder […]” (Emphasis supplied)
ii. Secondly, it was opined that Sections 9 and 10 of the
NDPS Act respectively, enable the Central and State
Governments respectively, to frame rules to “permit and
regulate” various aspects contemplated under Section
8(c) of dealing in narcotic drugs and psychotropic
substances. It was clarified that the Act does not
contemplate the framing of rules for “prohibiting” various
activities of dealing in the same since such a prohibition
is already present under Section 8(c). Therefore, it
cannot be said that the prohibition contained under
Section 8 would not be attracted in respect of all those
psychotropic substances which find a mention only in the
Schedule to the Act but not in Schedule I to the Rules
framed under the Act. The relevant observations are as
thus:
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“25. […] Sections 9 [ “9.Power of Central Government to
permit, control and regulate.–(1) Subject to the
provisions of Section 8, the Central Government may, by
rules–(a) permit and regulate–(i)-(v) ***(vi) the
manufacture, possession, transport, import inter-State,
export inter-State, sale, purchase, consumption or use of
psychotropic substances;”] and 10 [ “10.Power of State
Government to permit, control and regulate.–(1) Subject
to the provisions of Section 8, the State Government
may, by rules–(a) permit and regulate–***”] enable the
Central and the State Governments respectively to make
rules permitting and regulating various aspects
(contemplated under Section 8(c), of dealing in narcotic
drugs and psychotropic substances.
26. The Act does not contemplate framing of rules for
prohibiting the various activities of dealing in narcotic
drugs and psychotropic substances. Such prohibition is
already contained in Section 8(c). It only contemplates of
the framing of Rules for permitting and regulating any
activity of dealing in narcotic drugs or psychotropic
substances.
27. Therefore, we are of the opinion that the conclusion
reached by the various High Courts that prohibition
contained under Section 8 is not attracted in respect to
all those psychotropic substances which find a mention in
the Schedule to the Act but not in Schedule I to the Rules
framed under the Act is untenable.” (Emphasis supplied)iii. Thirdly, while overruling the decision made in Rajesh
Kumar Gupta (supra), it was stated that the rules framed
under the Act cannot be understood to create rights and
obligations contrary to those contained in the parent Act.
Therefore, neither Rule 53 nor Rule 64 is a source of
authority for prohibiting the dealing in narcotic drugs and
psychotropic substances, instead the source is Section 8
of the NDPS Act itself. The provisions of Chapter VI of the
NDPS Rules, contain rules permitting and regulating the
import and export of narcotic drugs and psychotropic
substances other than those specified in Schedule I to
the NDPS Rules subject to various conditions and
procedures stipulated in Chapter VI. Whereas, Chapter VII
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deals exclusively with various other aspects of dealing in
psychotropic substances and the conditions subject to
which such dealing is permitted. In that sense, both Rules
53 and 64 are really in the nature of an exception to the
general scheme of Chapter VI and VII respectively,
wherein those two rules pertain to a list of narcotic drugs
and psychotropic substances which cannot be dealt with
in any manner notwithstanding the other provisions of
these two chapters.The relevant observations are
reproduced hereinbelow:
29. We are unable to agree with the conclusion (reached
in Rajesh Kumar Gupta case [State of Uttaranchal v.
Rajesh Kumar Gupta, (2007) 1 SCC 355 : (2007) 1 SCC
(Cri) 356] ) that the prohibition contained in Rule 63
[ “63.Prohibition of import and export of consignments
through a post office box, etc.–The import or export of
consignments of any narcotic drug or psychotropic
substance through a post office box or through a bank is
prohibited.”] of the 1985 Rules is applicable only to those
narcotic drugs and psychotropic substances which are
mentioned in Schedule I to the Rules and not to the
psychotropic substances enumerated in the Schedule to
the Act. Such a conclusion was reached in Rajesh Kumar
Gupta case [State of Uttaranchal v. Rajesh Kumar Gupta,
(2007) 1 SCC 355 : (2007) 1 SCC (Cri) 356] on the
understanding that Rule 53 (prohibiting the import into
and export out of India of the narcotic drugs and
psychotropic substances specified in Schedule I to the
Rules) is the source of the authority for such prohibition.
Such a conclusion was drawn from the fact that the other
Rules contained in the Chapter permit import into and
export out of India of certain narcotic drugs and
psychotropic substances other than those specified in
Schedule I to the Rules. Unfortunately, the learned
Judges in reaching such a conclusion ignored the
mandate of Section 8(c) which inter alia prohibits in
absolute terms import into and export out of India of any
narcotic drug and psychotropic substance. Rules framed
under the Act cannot be understood to create rights and
obligations contrary to those contained in the parent Act.
30. On examination of the scheme of Rules 53 to 63
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which appear in Chapter VI, we are of the opinion that
Rule 53 [ “53.General prohibition.–Subject to the other
provisions of this Chapter, the import into and export out
of India of the narcotic drugs and psychotropic
substances specified in Schedule I is prohibited: Provided
that nothing in this rule shall apply in case the drug
substance is imported into or exported out of India
subject to an import certificate or export authorisation
issued under the provision of this Chapter and for the
purposes mentioned in Chapter VII-A.”] reiterates an
aspect of the larger prohibition contained in Section 8(c)
i.e. the prohibition of import into and export out of India
of the narcotic drugs and psychotropic substances
specified in Schedule I to the Rules. The proviso thereto
however enables the import into and export out of India
on the basis of an import certificate or export
authorisation issued under the provisions of Chapter VI.
The subsequent rules stipulate the conditions subject to
which and the procedure to be followed by which some of
the narcotic drugs and psychotropic substances could be
imported into India or exported out of India. For example,
opium is a narcotic drug by definition under Section
2(xiv) of the Act whose export and import is prohibited
under Section 8(c). But Rule 54 [ “54.Import of opium,
etc.–The import of–(i) opium, concentrate of poppy
straw, and(ii) morphine, codeine, thebaine, and their
salts is prohibited save by the Government Opium
Factory; Provided that nothing in this rule shall apply to
import of morphine, codeine, thebaine and their salts by
manufacturers notified by the Government, for use in
manufacture of products to be exported or to imports of
small quantities of morphine, codeine and thebaine and
their salts not exceeding a total of 1 kilogram during a
calendar year for analytical purposes by an importer,
after following the procedure under Rule 55 and subject
to such conditions as may be specified in the import
certificate issued in Form 4- A.”(emphasis supplied)]
authorises the import of opium by the Government opium
factory. The construction such as the one placed on Rule
53 in Rajesh Kumar Gupta case [State of Uttaranchal v.
Rajesh Kumar Gupta, (2007) 1 SCC 355 : (2007) 1 SCC
(Cri) 356] would in our opinion be wholly against the
settled canons of statutory interpretation that the
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subordinate legislation cannot make stipulation contrary
to the parent Act.
31. Chapter VII deals with psychotropic substances. No
doubt Rule 64 [ “64.General prohibition.–No person shall
manufacture, possess, transport, import inter-State,
export inter-State, sell, purchase, consume or use any of
the psychotropic substances specified in Schedule I.”]
once again purports to prohibit various operations other
than import into or export out of India in psychotropic
substances specified in Schedule I for the obvious reason
that import and export operations are already covered by
Rule 53. Rule 65 authorises the manufacture of
psychotropic substances other than those specified in
Schedule I to the Rules subject to and in accordance with
the conditions of a licence granted under the 1945 Rules.
The rule also provides for various other incidental
matters. Rule 65-A prohibits the sale, purchase,
consumption or use of any psychotropic substances
except in accordance with the 1945 Rules.
32. Rule 66 prohibits any person from having in
possession any psychotropic substance even for any of
the purposes authorised under the 1945 Rules unless the
person in possession of such a psychotropic substance is
lawfully authorised to possess such substance for any of
the purposes mentioned under the 1985 Rules. Persons
who are authorised under the 1985 Rules, and the
quantities of the material such persons are authorised to
possess, are specified under Rule 66(2). They are:
(1) any research institution or a hospital or dispensary
maintained or supported by the Government, etc. — Rule
66(2).
(2) individuals where such possession is needed for
personal medical use subject of course to the limits and
conditions specified — the two provisos to Rule 66(2).
33. Rule 66 reads as follows:
“66.Possession, etc., of psychotropic substances.–(1) No
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of the purposes covered by the 1945 Rules, unless he is
lawfully authorised to possess such substance for any of
the said purposes under these Rules.
(2) Notwithstanding anything contained in sub-rule (1),
any research institution, or a hospital or dispensary
maintained or supported by the Government or local
body or by charity or voluntary subscription, which is not
authorised to possess any psychotropic substance under
the 1945 Rules, or any person who is not so authorised
under the 1945 Rules, may possess a reasonable
quantity of such substance as may be necessary for their
genuine scientific requirements, or both for such period
as is deemed necessary by the said research institution
or, as the case may be, the said hospital or dispensary or
person:
Provided that where such psychotropic substance is in
possession of an individual for his personal medical use
the quantity thereof shall not exceed one hundred
dosage units at a time:
Provided further that an individual may possess the
quantity of exceeding one hundred dosage units at a
time but not exceeding three hundred dosage units at a
time for his personal long term medical use if specifically
prescribed by a Registered Medical Practitioner.
(3) The research institution, hospital and dispensary
referred to in sub-rule (2) shall maintain proper accounts
and records in relation to the purchase and consumption
of the psychotropic substance in their possession.”
34. On the above analysis of the provisions of Chapters
VI and VII of the 1985 Rules, we are of the opinion, both
these chapters contain rules permitting and regulating
the import and export of narcotic drugs and psychotropic
substances other than those specified in Schedule I to
the 1985 Rules subject to various conditions and
procedure stipulated in Chapter VI. Whereas Chapter VII
deals exclusively with various other aspects of dealing in
psychotropic substances and the conditions subject to
which such dealing in is permitted. We are of the opinion
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that both Rules 53 and 64 are really in the nature of
exception to the general scheme of Chapters VI and VII
respectively containing a list of narcotic drugs and
psychotropic substances which cannot be dealt in any
manner notwithstanding the other provisions of these
two chapters. We are of the clear opinion that neither
Rule 53 nor Rule 64 is a source of authority for
prohibiting the dealing in narcotic drugs and psychotropic
substances, the source is Section 8. Rajesh Kumar Gupta
case [State of Uttaranchal v. Rajesh Kumar Gupta, (2007)
1 SCC 355 : (2007) 1 SCC (Cri) 356] in our view is
wrongly decided.” (Emphasis supplied)
79. What is discernible from the aforementioned
decisions is that, there is no shadow of doubt on the
proposition that dealing in psychotropic substances not
finding a mention in Schedule I of the NDPS Rules but
finding place in the Schedule to the Act, would also
constitute an offence under Section 8 of the NDPS Act.
Such was the position even before the decision of this
Court in Sanjeev V. Deshpande (supra). The only decision
of this Court that laid down an alternate position of law
was Rajesh Kumar Gupta (supra) which now stands
overruled. 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.
80. What we understand to be the clarification of the
position of law in Rajesh Kumar Gupta (supra) and
Sanjeev V. Deshpande (supra) is thus:
i. In Rajesh Kumar Gupta (supra), Chapters VI and VII of
the NDPS Rules respectively, were interpretated in such a
manner where Rules 53 and 64 of the NDPS Rules
respectively, were considered to set the tone for the
other rules following in their respective Chapters i.e., that
Rules 53 and 64 respectively, were the genus and the
other rules were considered to be species thereof. InPage 44 of 60
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other words, since Rules 53 and 64 respectively, only
pertain to substances under Schedule I of the Rules, the
other rules must also pertain to Schedule I substances
only. Therefore, it was declared that it is only the
psychotropic substances appended to Schedule I of the
Rules which are regulated by the NDPS Rules, and
dealing in substances, not finding a mention in Schedule
I, would be unregulated and thus, not amount to an
offence under Section 8(c).
ii. Sanjeev V. Deshpande (supra) while overruling Rajesh
Kumar Gupta (supra) dispelled the idea that Rules 53 and
64 respectively, constituted a genus but instead stated
that Rules 53 and 64 respectively, are in the nature of an
exception to the general scheme of their respective
Chapters. To put it more clearly, that Rules 53 and 64
respectively stated that substances under Schedule I of
the Rules cannot be dealt with in any manner whatsoever
and the other Rules in the Chapter proceeded to lay
down the procedure and conditions under which
substances other than those mentioned in Schedule I of
the Rules but contained in the Schedule to the Act, could
be dealt with. Therefore, if an accused is charged with an
offence for dealing with a substance mentioned under
the Schedule to the Act and not in Schedule I of the
Rules, he would be guilty of an offence under Section
8(c) if the conditions and procedure laid down under the
Rules, other than Rules 53 and 64, are not complied with.
81. However, a detailed and comprehensive analysis of
Chapters VI and VII of the NDPS Rules, inter alia, makes it
clear that the substances mentioned under Schedule I of
the Rules are not absolutely prohibited to be dealt in, as
stated in Sanjeev V. Deshpande (supra). They are indeed
allowed to be dealt with for the limited purposes as
detailed in Chapter VIIA of the NDPS Rules. It goes
without saying that in such dealing for the purposes
mentioned under Chapter VIIA, persons would have to
comply with the set of procedures and conditions to
which the other substances are subjected to and strict
compliance of all those rules are mandatory considering
the high degree of havoc and menace that the
substances mentioned in Schedule I to the NDPS Rules
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can create on public health and societal well-being.
82. The NDPS rules were revamped in the year 2015 vide
G.S.R. 224(E) dated 25.03.2015 with a view to remove
the ambiguity that the phrasing of several rules created.
That the psychotropic substances mentioned under
Schedule I of the NDPS Rules can also be dealt with but
for the restricted and limited purposes enumerated
under Chapter VIIA of the Rules and in compliance with
the requirements under the other rules, is evident from
the language of the rules which came into effect post
25.03.2015. To illustrate, Rule 53 of the NDPS Rules now
reads as thus:
“53. General Prohibition. – Import into and export out of
India of the narcotic drugs and psychotropic substances
is prohibited except with an import certificate or export
authorization issued under the provision of this Chapter;
Provided that import into India or export out of India of
the narcotic drugs and psychotropic substances specified
in Schedule I of these rules shall be for the purpose
mentioned in Chapter VIIA.” (Emphasis supplied)
83. Similarly, at present, Rule 64 of the NDPS Rules reads
as follows:
“64. Manufacture of psychotropic substances. –
(1) No person shall manufacture any of the psychotropic
substances except in accordance with the conditions of a
licence granted under the Drugs and Cosmetics Rules,
1945 (hereinafter referred to as the 1945 rules) framed
under the Drugs and Cosmetics Act, 1940 (23 of 1940),
by an authority in-charge of Drugs Control in a State
appointed by the State Government in this behalf:
Provided that a licence to manufacture a psychotropic
substance specified in Schedule I shall be issued only for
the purposes mentioned in Chapter VIIA:
Provided further that the authority in charge of the drug
control in a State shall consult the Narcotics
Commissioner before issuing a licence to manufacture a
psychotropic substance specified in Schedule I.”
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(Emphasis supplied)
84. Rule 66 of the NDPS Rules also reads as thus:
“66. Possession, etc., of psychotropic substances. – (1)
No person shall possess any psychotropic substance for
any of the purposes covered under 1945 rules, unless he
is lawfully authorized to possess such substance for any
of the said purposes under these rules:
Provided that possession of a psychotropic substance
specified in Schedule I shall be only for the purposes
mentioned in chapter VIIA.” (Emphasis supplied)
85. In our opinion the pith and substance of the rules
essentially remained the same over the years, more
particularly pre and post 25.03.2015. It is only the
language that has been streamlined in a much more
organised manner. Of course, the interpretation of the
three-Judge Bench in Sanjeev V Deshpande (supra) of the
scheme of Chapters VI and VII of the NDPS Rules
respectively would hold the field in so far as the version
of the NDPS Rules pre-25.03.2015 is concerned. Judicial
propriety demands that we refrain from substituting our
own conclusions to the said decision. However, since the
rephrasing of the language and re-shuffling of the sub-
rules vide G.S.R. 224(E) dated 25.03.2015 has clarified
the true purport and intention behind the framing of the
NDPS Rules, there remains no doubt in our mind that the
law post – 25.03.2015 is crystal clear in itself.
d. The provisions of the NDPS Act and its Rules are “in
addition to” the D&C Act and the Rules made thereunder.
86. Section 80 of the NDPS Act states that the application
of the D&C Act would not be barred and reads as follows:
“80. Application of the Drugs and Cosmetics Act, 1940
not barred.– The provisions of this Act or the rules made
thereunder shall be in addition to, and not in derogation
of, the Drugs and Cosmetics Act, 1940 (23 of 1940) or
the rules made thereunder.”
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87. In P. Ramanatha Aiyar’s Advanced Law Lexicon, the
word derogation is defined as “the partial repeal or
abrogation of a law by a later act that limits its scope or
impairs its utility and force”. It is also stated that the
word “derogate” is a term of legislation. “Derogation” is
partial and indirect abrogation i.e., when a subsequent
law reduces the force and application of an older law, the
character of the subsequent law is technically said to be
erogatory. Therefore, the express language employed
herein which states that the NDPS Act is not in
derogation of the D&C Act leads to the inference that the
enactment of the NDPS Act must not in any way be
understood to take away the scope of an offence being
also made out under the D&C Act. Furthermore, it is also
stated that the provisions of the NDPS Act and its Rules
“shall be in addition to” the D&C Act or the Rules made
thereunder. Therefore, in the reverse scenario, i.e., when
an offence under the D&C Act is made out or can
potentially be made out, the accused can also be
charged or prosecuted for an offence under the NDPS
Act. Any argument to the contrary would be untenable.
This is so because the NDPS Act applies in addition to the
provisions of the D&C Act. Inevitably, there may arise
situations wherein the substance in question in a
particular case falls under the ambit of both the NDPS Act
and D&C Act. However, the overlap would not necessarily
imply that the application of the provisions of the NDPS
Act would be at the cost of exclusion of the provisions of
D&C Act, or vice versa. Section 80 of the NDPS Act must
be understood in the context and object behind the
coming into force of these two legislations i.e., the NDPS
Act and D&C Act respectively, and the distinct purposes
that they seek to achieve.
88. In Sanjeev V. Deshpande (supra), while it was
deemed unnecessary to undertake a complete analysis
of the implications of Section 80 of the NDPS Act in view
of the conclusion arrived at therein, yet it was observed
that the provisions of the NDPS Act apply in addition to
the provisions of the D&C Act. Furthermore, it was stated
that while the D&C Act deals with various operations of
manufacture, sale, purchase etc. of drugs generally, the
NDPS Act deals with a more specific class of drugs and is
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therefore, a special law on the subject. The relevant
observations are reproduced hereinbelow:
“35. In view of our conclusion, the complete analysis of
the implications of Section 80 [“80.Application of the
Drugs and Cosmetics Act, 1940 not barred.–The
provisions of this Act or the Rules made thereunder shall
be in addition to, and not in derogation of, the Drugs and
Cosmetics Act, 1940 (23 of 1940) or the Rules made
thereunder.”] of the Act is not really called for in the
instant case. It is only required to be stated that
essentially the Drugs and Cosmetics Act, 1940 deals with
various operations of manufacture, sale, purchase, etc. of
drugs generally whereas the Narcotic Drugs and
Psychotropic Substances Act, 1985 deals with a more
specific class of drugs and, therefore, a special law on
the subject. Further the provisions of the Act operate in
addition to the provisions of the 1940 Act.” (Emphasis
supplied)
89. The object of the NDPS Act and D&C Act, respectively
was reiterated in State of Punjab v. Rakesh Kumar
reported in (2019) 2 SCC 466. Herein, several
respondent-accused were convicted for the offence
committed either under Section 21 or Section 22 of the
NDPS Act for the bulk possession of “manufactured
drugs” without any valid authorisation. The High Court
allowed the applications seeking suspension of sentence,
preferred by the respondent- accused and directed that
they be released on bail pending the final disposal of the
appeals before it. In doing so, it was observed by the
High Court that in cases of manufactured drugs, be it
containing narcotic drugs or psychotropic substances, if
manufactured by a manufacturer, the same must be tried
if a violation has been committed, under the D&C Act and
not under the NDPS Act, except in cases where the
substance is in a loose form i.e., powder, liquid etc. This
Court disagreed with the High Court that the respondent-
accused could only be prosecuted for an offence under
the D&C Act despite there being a prima facie violation of
Section 8 of the NDPS Act. In opining so, the decision
elaborated on the following aspects:
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i. First, that the objectives behind the NDPS Act and D&C
Act are different. It was opined that the former is a
special law enacted with an object to control and
regulate the operations relating to narcotic drugs and
psychotropic substances. Whereas, the latter was
enacted specifically to prevent substandard drugs and to
maintain high standards of medical treatment. It
intended to curtail the menace of adulteration of drugs
and also of the production, manufacture, distribution and
sale of spurious and substandard drugs. In short, while
the D&C Act brings within its scope drugs which are
intended to be used for therapeutic or medicinal usage,
the NDPS Act intends to curb and penalise the usage of
drugs that are utilized for intoxication or for the purpose
of inducing a stimulant effect.
The relevant observations are as thus:
“7. At the outset it is essential to note the objectives of
the two legislations before us i.e. the Drugs and
Cosmetics Act, 1940 and the NDPS Act. The Drugs and
Cosmetics Act, 1940 was enacted to specifically prevent
substandard drugs and to maintain high standards of
medical treatment (Chimanlal Jagjivan Das Sheth v. State
of Maharashtra [Chimanlal Jagjivan Das Sheth v. State of
Maharashtra, AIR 1963 SC 665 : (1963) 1 Cri LJ 621] ).
The Drugs and Cosmetics Act, 1940 was mainly intended
to curtail the menace of adulteration of drugs and also of
production, manufacture, distribution and sale of
spurious and substandard drugs. On the other hand, the
NDPS Act is a special law enacted by Parliament with an
object to control and regulate the operations relating to
narcotic drugs and psychotropic substances. After
analysing the objectives of both the Acts, we can safely
conclude that while the Drugs and Cosmetics Act deals
with drugs which are intended to be used for therapeutic
or medicinal usage, on the other hand, the NDPS Act
intends to curb and penalise the usage of drugs which
are used for intoxication or for getting a stimulant
effect.” (Emphasis supplied)ii. Secondly, by relying on the decision in Sanjeev V.
Deshpande (supra), it was reiterated that Section 80 ofPage 50 of 60
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the NDPS Act does not bar the application of the D&C Act
and instead states that the provisions of the NDPS Act
can be made applicable in addition to that of the
provisions of the D&C Act. The NDPS Act should not be
read in exclusion of the D&C Act. This Court took the
view that since it is the prerogative of the State to
prosecute the offender in accordance with law, the
respondent- accused could be charged under Sections 21
or 22 of the NDPS Act respectively, considering that their
actions amounted to a prima facie violation of Section 8
of the NDPS Act. The relevant observations are as
follows:
“13. However, we are unable to agree on the conclusion
reached by the High Court for reasons stated further.
First, we note that Section 80 of the NDPS Act, clearly
lays down that application of the Drugs and Cosmetics
Act is not barred, and provisions of the NDPS Act can be
applicable in addition to that of the provisions of the
Drugs and Cosmetics Act. The statute further clarifies
that the provisions of the NDPS Act are not in derogation
of the Drugs and Cosmetics Act, 1940. This Court in
Union of India v. Sanjeev V. Deshpande [Union of India v.
Sanjeev V. Deshpande, (2014) 13 SCC 1 : (2014) 5 SCC
(Cri) 496] , has held that : (SCC p. 16, para 35)“35. … essentially the Drugs and Cosmetics Act, 1940
deals with various operations of manufacture, sale,
purchase, etc. of drugs generally whereas Narcotic Drugs
and Psychotropic Substances Act, 1985 deals with a more
specific class of drugs and, therefore, a special law on
the subject. Further, the provisions of the Act operate in
addition to the provisions of the 1940 Act.” (emphasis
supplied)
14. The aforesaid decision in Sanjeev V. Deshpande case
[Union of India v. Sanjeev V. Deshpande, (2014) 13 SCC 1
: (2014) 5 SCC (Cri) 496] further clarifies that, the NDPS
Act, should not be read in exclusion to the Drugs and
Cosmetics Act, 1940. Additionally, it is the prerogative of
the State to prosecute the offender in accordance with
law. In the present case, since the action of the
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of Section 8 of the NDPS Act, they were charged under
Section 22 of the NDPS Act.
15. In light of the above observations, we find that the
decision rendered by the High Court holding that the
respondent-accused must be tried under the Drugs and
Cosmetics Act, 1940 instead of the NDPS Act, as they
were found in possession of the “manufactured drugs”,
does not hold good in law. […]”. (Emphasis supplied)
90. On a conspectus of the foregoing discussion on the
scheme of the NDPS Act and its rules along with the D&C
Act and the rules made thereunder, the position of law
can be succinctly stated as follows:
i. A bare reading of Section 2(xxiii) of the NDPS Act
defining a “psychotropic substance” would indicate that
all the items listed in the Schedule to the Act along with
its salts and preparations fall within the purview of
“psychotropic substance”. The term “psychotropic
substance” mentioned in Section 8 must be seen &
understood in light of Section 2(xxiii) which refers to the
Schedule to the Act and all the psychotropic substances
mentioned therein.
ii. Section 8(c) while prohibiting the “dealing in” of all
psychotropic substances mentioned under the Schedule
to the Act, carves out an exception i.e., provides for a
situation wherein the dealing in of psychotropic
substances would not amount to an offence. However,
those conditions forming part of the exception carved out
under Section 8 must be read conjointly and not
individually. 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, required under the provisions of the
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thereunder.
iii. The NDPS Rules, 1985 have been brought into being
by the Central Government in exercise of the powers
under Sections 9 and 76 of the NDPS Act, respectively.
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. 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. iv. Chapter
VI of the NDPS Rules, inter alia, states that the import
into and export out of India of all psychotropic
substances, including those only mentioned under the
Schedule to the Act, must be accompanied by a valid
import certificate and export authorisation. However, the
import and export of substances enumerated in Schedule
I of the Rules is restricted to a pre-determined set of
purposes as explained under Chapter VIIA, irrespective of
having obtained an import certificate or export
authorisation under the other rules of this Chapter.
v. Chapter VII indicates that the manufacture of all
psychotropic substances, including those mentioned only
under the Schedule to the Act must be in accordance
with the conditions of licence issued under the D&C
Rules. Despite there being a general rule absolutely
prohibiting the manufacture, possession, transport,
import inter-State, export inter-State, sale, purchase,
consumption or use of any of the psychotropic
substances which find mention in Schedule I appended to
the Rules, still the above activities can be done vis-á-vis
the substances mentioned in Schedule I appended to the
Rules, provided such activities are in accordance with
other provisions of the Chapter which generally apply to
all psychotropic substances, and for the limited purposes
mentioned under Chapter VIIA.
vi. The manufacture of all psychotropic substances
mentioned under the Schedule to the Act, and those
mentioned under Schedule I of the Rules (provided they
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Chapter VIIA), in violation of the conditions of licence of
manufacture issued under the D&C Act and its rules
would amount to a contravention of Rule 65 of the NDPS
Rules and thereby Section 8 of the NDPS Act itself. In
other words, due to the operation of Rule 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 the
NDPS Act read with its Rules.
vii. Furthermore, no person shall possess any
psychotropic substance, including those mentioned only
under the Schedule to the Act for any of the purposes
covered by the D&C Rules, unless he is lawfully
authorised to possess such substance for any of the said
purposes under the NDPS rules. Therefore, Schedule I
substances can be possessed only for the purposes
mentioned under Chapter VIIA. All other substances
mentioned only under the Schedule to the Act can 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 under Section 8 of the NDPS Act. The above is
in addition to the fulfilment of the requirements under
the D&C Rules.
viii. The underlying idea that resonates throughout the
NDPS rules is that dealing in any of the psychotropic
substances mentioned under Schedule I of the NDPS
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 figuring
under Schedule I of the Rules but listed in the Schedule
to the Act must also abide by the requirements cast upon
by the NDPS Rules. The difference as regards these
substances, however, is that while they may be dealt
with for the purposes enumerated under Chapter VIIA of
the NDPS Rules, they can also be dealt with for other
“medical and scientific purposes”. Whether the accused
has dealt with it within the confines of the expression
“medical or scientific purposes” would be determined on
the facts and circumstances of each case.
ix. Therefore, the substances under Schedule I to the
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Rules are more strictly restricted and the remaining
psychotropic substances under the Schedule to the Act
are more leniently restricted. The different levels in
restriction could be seen as the primary reason behind
providing two different schedules, i.e., one under the Act
and another under the Rules.
x. Several decisions of this Court including Hussain
(supra), Ouseph alias Thankachan (supra), Ravindran
alias John (supra), Sanjay Kumar Kedia (supra), D.
Ramakrishnan (supra) and Sanjeev V. Deshpande (supra)
have held that an offence under Section 8 of the NDPS
Act can be made out even in respect of substances only
mentioned under the Schedule to the NDPS Act and
absent under Schedule I of the NDPS Rules. The outlier
amongst these decisions was Rajesh Kumar Gupta
(supra) which was subsequently overruled in Sanjeev V.
Deshpande (supra).
xi. To say that no offence would be made out in a case
where an accused deals with a substance mentioned only
under the Schedule to the Act, would have the
consequence of rendering the entire Schedule to the Act
useless, unnecessary and nugatory.
xii. Rajesh Kumar Gupta (supra) assumed that the
prohibitory power could only be traced to Rules 53 and
64 of the NDPS Rules respectively, and stated that Rules
53 and 64 of the NDPS Rules respectively, were a genus
and the other rules following in their respective Chapters
were species thereof. Therefore, since Rules 53 and 64
respectively, only related to the substances listed under
Schedule I of the Rules, it was held that the dealing in of
substances not finding a mention in Schedule I of the
Rules and only listed under the Schedule to the Act,
would be unregulated by the Rules and thus, would not
amount to an offence under Section 8(c).
xiii. On the other hand, Sanjeev V. Deshpande (supra)
overruled Rajesh Kumar Gupta (supra) by explaining that
it is Section 8(c) of the NDPS Act which prohibits various
activities with respect to psychotropic substances and
the source of this prohibitory power cannot be attributed
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to Rules 53 and 64 respectively. Rules 53 and 64 are in
the nature of an exception to the general scheme of the
NDPS Rules. While Rules 53 and 64 state that the
substances under Schedule I of the Rules cannot be dealt
with in any manner, the other substances i.e., those
mentioned under the Schedule to the Act, are also
regulated under the other rules in the respective
Chapters of the NDPS Rules. xiv. However, what we
understand as also being the essence of the scheme of
the NDPS Rules is that, it does not absolutely prohibit the
dealing in of the substances mentioned under Schedule I
of the Rules as held in Sanjeev V. Deshpande (supra).
These substances figuring in Schedule I of the Rules can
also be dealt with but only for the limited purposes
mentioned under Chapter VIIA of the NDPS Rules. This is
evident from the re-phrasing of the NDPS Rules which
was effected on 25.03.2015, which according to us, has
not changed the meaning of the Rules but only altered its
language.
xv. Section 80 states that the provisions of the NDPS Act
or the Rules made thereunder shall be in addition to, and
not in derogation of the D&C Act and the Rules made
thereunder. Therefore, when an offence under the D&C
Act is made out or can potentially be made out, the
accused can also be charged or prosecuted for an
offence under the NDPS Act or vice-versa. The object
sought to be achieved under both the legislations is also
distinct i.e. the NDPS Act is a special law enacted to
regulate the operations relating to narcotic drugs and
psychotropic substances with a view to curb and penalise
the usage of drugs by persons for intoxication etc.,
whereas the D&C Act was enacted to prevent
substandard, adulterated and spurious drugs from
entering the medical market and to maintain high
standards in medical treatment. Hence, offences under
both the enactments can also be said to have been
constituted simultaneously, where the circumstances so
require.”
21. In the case on hand, the contraband substance was found
from the conscious possession of the applicant-accused.
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Further, the FSL report also confirms the presence of
‘morphine/opium’ in the seized contraband substance. Not
only that, the courier was booked by the applicant herein in
the name of his friend, which is evident from the CCTV
footages collected by the investigating officer. Moreover,
during the course of investigation, the CDR (Call Data Record)
was also obtained, which establishes the link of the present
applicant-accused along with co-accused Pramod Bansal. Not
only that, there were some financial transactions took place
between them. Moreover, the trial has already begun and the
charges have also been framed and number of witnesses have
been examined and summonses have also been issued to the
other witnesses for being examined, and therefore, at this
stage when the trial has already been commenced and
witnesses are being called for at a regular interval, I am of the
opinion that the no interference is required at the end of this
Court at this stage.
22. Further, after the registration of the FIR, the accused
were arrested and the investigation was commenced, and
ultimately, at the end of day, charge-sheet also came to be
filed. Thereafter, the present applicant preferred bail
application, which was entertained by the trial court and
thereby enlarged the applicant-accused on bail, and since then
he is at liberty. The other co-accused also went upto the
Hon’ble Apex Court for getting the bail, however, the Hon’ble
Apex Court rejected the bail application of the co-accused with
a specific direction to the trial court to conclude the trial within
a period of one year. It appears that thereafter, as both the
cases arising out of the same offence, those were decided to
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be taken up as a joint trial, and the said joint trial is now going
on expeditiously and is expected to be completed in a time
bound manner as directed by the Hon’ble Apex Court.
Moreover, as held by the Hon’ble Apex Court in the
aforequoted judgment, 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
license, 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. In the present case, it is
apparent on the face of the record that the applicant-accused
does not possess any valid license issued by any competent
authority to export the recovered contraband articles outside
the India, and thus, as held by the Hon’ble Apex Court in the
aforequoted judgment, any transportation of any psychotropic
substance as mentioned in the Schedule to the Act without
there being any valid license to that effect, would
automatically fall under the category of contraband substance
as envisaged under the NDPS Act, and therefore, as held by
the Hon’ble Apex Court in the aforequoted judgment, dealing
with any psychotropic substance, without there being any valid
license, an offence under the provisions of the NDPS Act could
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be said to have been made out. Lastly, and most importantly,
the psychotropic substance in question is declared
prohibited/banned in Australia, and despite the said fact, the
applicant had tried to export the said psychotropic substance
in Australia.
[
23. In view of the above discussion, the present application
fails and is hereby rejected. It is hereby directed that the
applicant be tried by the concerned Special Judge, NDPS, in
accordance with law. The Trial Court is directed to proceed
with the trial and conclude it expeditiously, as directed by the
Hon’ble Apex Court.
24. In view of the order passed in the main matter, the
connected civil application for stay also does not survive and is
disposed of accordingly.
(DIVYESH A. JOSHI,J)
After the pronouncement of the judgment, learned
advocate appearing for the applicant submits that the
applicant intends to challenge the order by way of preferring
SLP before the Hon’ble Apex Court, and therefore the
proceedings of the trial may be stayed for a period of two
weeks.
Learned advocate Mr. Shukla appearing for the
respondent No.1 has objected the aforesaid request and
submitted that the learned Trial Court is proceeding with the
trial on day to day basis in view of the directions issued by the
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Hon’ble Apex Court to expedite the trial and conclude it within
the prescribed time limit, and therefore the proceedings are
not required to be stayed.
Considering the aforesaid submissions, the request made
by learned advocate for the applicant is not acceded to.
(DIVYESH A. JOSHI,J)
VAHID
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