“Dealing With Substance in NDPS Act Schedule Is an Offence Even If Not in NDPS Rules”: Supreme Court Restores Charges, Quashes High Court Orders
Kiran Raj
The Supreme Court of India Division Bench of Justice J.B. Pardiwala and Justice Manoj Misra held that any dealing with a psychotropic substance listed under the Schedule to the Narcotic Drugs and Psychotropic Substances Act, 1985, without proper authorization, constitutes an offence under Section 8(c) of the Act, regardless of whether such substance appears in Schedule I of the NDPS Rules. The Court clarified that the statutory exception allowing such dealings for medical or scientific purposes does not apply unless the conditions prescribed under the Act and the rules made thereunder are fully satisfied.
The Court set aside the decisions of the lower courts which had discharged the accused from offences under the NDPS Act on the ground that the substance in question did not appear in Schedule I of the NDPS Rules. It held that such interpretation was legally unsustainable. The Court further directed that the previously framed charges under Sections 22 and 29 of the NDPS Act be restored and that the Special Judge (NDPS) proceed with the trial in accordance with law.
The matter concerned two criminal appeals arising from proceedings initiated under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), pertaining to the alleged illegal possession, transport, and sale of Buprenorphine Hydrochloride, a psychotropic substance. The appeals were heard together due to common legal questions arising in both.
In the first matter, a case was initiated following a search conducted by officers of the Directorate of Revenue Intelligence (DRI) on 27 September 2003 at a premises located in New Delhi. The officers recovered 25 corrugated cardboard cartons containing 40,000 unlabelled ampoules of Buprenorphine Hydrochloride and one labelled ampoule from the office of one of the accused. Printed labels bearing the name of the substance were also found at the premises. The accused present at the premises was unable to produce any valid license or authorization for possessing or handling the substance. The ampoules and related material were seized under provisions of the NDPS Act.
Simultaneously, a coordinated search was conducted at the premises of Win Drugs Ltd. in Jind, Haryana, where 23,400 Buprenorphine ampoules and 100 grams of the same substance in powder form were recovered and seized by the Central Excise Commissionerate, Rohtak. Statements were recorded from multiple persons, including individuals identified as business associates, intermediaries, and suppliers. These statements outlined the chain of procurement, supply, and intended delivery of the ampoules. The statements included details of cash transactions, sample ampoule exchange, and planned delivery to individuals lacking any drug handling authorization.
The primary respondent in the first matter made a voluntary written statement detailing the business arrangement with two other individuals, both of whom were also later arrested. The second individual admitted to accepting an advance of ₹2.5 lakhs for sourcing Buprenorphine ampoules and coordinating procurement from Win Drugs Ltd. The third individual, based in Mumbai, acknowledged purchasing Buprenorphine in powder form from another supplier and facilitating connections between the parties for the delivery and payment of unlabelled ampoules. He also admitted to expecting compensation for his involvement in the supply chain.
All three individuals were arrested on different dates following the investigation and were charged with offences under Sections 22 and 29 of the NDPS Act. Samples seized during the investigation were analyzed and confirmed to be Buprenorphine by the Central Revenue Control Laboratory. As efforts to summon a fourth individual, the director of Win Drugs Ltd., were unsuccessful, further proceedings against him were deferred. A criminal complaint was filed before the Special NDPS Court in New Delhi in March 2004.
The Special Judge, upon considering the seized material, statements, chemical analysis reports, and other documents, held that a prima facie case existed for contravention of Section 22 and conspiracy under Section 29 of the NDPS Act. Charges were formally framed on 8 February 2005. While bail applications filed before the Special Judge were rejected, the High Court granted bail on the ground that Buprenorphine Hydrochloride was not included in Schedule I of the NDPS Rules and, therefore, Section 8(c) of the Act would not apply.
Subsequent to the grant of bail, an application was filed under Section 216 of the Code of Criminal Procedure seeking deletion of the charges. Before the disposal of this application, a revision petition was filed before the High Court, which directed the Special Judge to decide the pending Section 216 CrPC application first, uninfluenced by the earlier orders. The Special Judge allowed the application, holding that Buprenorphine Hydrochloride, though a psychotropic substance under the Act, was not regulated under the NDPS Rules as it did not appear in Schedule I of the Rules. The matter was remitted to the Metropolitan Magistrate for proceedings under the Drugs and Cosmetics Act, 1940 (D&C Act). The Special Judge also relied on an earlier decision in Manoj Kumar Gupta v. State with similar facts.
A revision petition challenging the remittal order was dismissed by the High Court, which upheld the reasoning that the NDPS Act did not apply in the absence of the substance being listed under Schedule I of the Rules. It also observed that the Special Judge had not “discharged” the accused under Section 227 of the CrPC but had acted within the scope of Section 216. The High Court relied on prior decisions including Rajesh Kumar Gupta v. State of Uttaranchal and Rajesh Sharma v. Union of India to conclude that dealing in Schedule H drugs under the D&C Rules, even if they were listed in the NDPS Act, did not amount to offences under the NDPS Act unless they were also included in Schedule I of the NDPS Rules.
In the second matter, similar issues were raised. The Narcotics Control Bureau (NCB) received information in October 2004 regarding large-scale sale of Buprenorphine ampoules. An individual was found to have procured large quantities of the drug and sold them without invoices or records, including to unidentified persons without any license or authorization. He was arrested and charged under Sections 8(c) and 22(c) of the NDPS Act. The Special Court framed charges in May 2005.
During the trial, the accused filed an application under Section 216 CrPC, relying on the High Court’s decision in Rajender Gupta, contending that Buprenorphine Hydrochloride, though a psychotropic substance under the Act, did not attract Section 8(c) because it was not listed in Schedule I of the Rules. The application was allowed, and the case was remanded to the Metropolitan Magistrate to proceed under the D&C Act. A subsequent application by the prosecution seeking stay of the trial on the basis of a pending SLP against the High Court’s earlier ruling was rejected. The Special Judge held that the Supreme Court had not stayed the earlier judgment, and the issue had already been resolved by the High Court and upheld in Rajesh Kumar Gupta.
The prosecution challenged the order of remittal before the High Court under Section 482 CrPC. The High Court dismissed the petition, holding that the rationale in Rajender Gupta applied not only to bail applications but also to decisions on whether an offence under the NDPS Act was made out. The High Court reiterated that mere listing in the NDPS Act Schedule was not sufficient and that listing in Schedule I of the Rules was a prerequisite to invoke Section 8(c). As such, the accused’s acts were held not to constitute offences under the NDPS Act.
Both matters were brought before the Supreme Court through criminal appeals, challenging the findings of the High Court in each case. The appellants submitted that the High Court had erred in holding that Schedule I of the Rules was determinative for applying Section 8(c) and had overlooked the decision in Union of India v. Sanjeev V. Deshpande, which had held that psychotropic substances listed under the Act, whether or not included in the Rules, were covered under Section 8(c).
They further contended that Section 216 CrPC could not be used to seek discharge after charges had been framed, and that the Special Judge’s orders permitting such alteration of charges were legally untenable. They also relied on Section 80 of the NDPS Act to argue that the Act operates in addition to, not in derogation of, the D&C Act. Thus, overlapping coverage under the D&C Act did not exclude NDPS Act applicability.
The respondents defended the High Court’s findings and contended that their actions were covered by the exception to Section 8(c), which allows use for medical or scientific purposes. They argued that the decision in Sanjeev V. Deshpande should be applied prospectively and could not be invoked to reopen cases where proceedings had already been remitted or charges altered under earlier law. They further contended that as the substance in question was a Schedule H drug under the D&C Rules, its handling was not governed by the NDPS Act in the absence of express listing in the NDPS Rules’ Schedule I.
The Supreme Court examined three specific legal issues, the first of which was whether dealing with a psychotropic substance listed in the Schedule to the NDPS Act, but not in Schedule I of the NDPS Rules, would still amount to an offence under Section 8(c) of the Act.
The Court first examined the scheme of the NDPS Act and the international legal framework underpinning its enactment. It recorded: “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.”
The Court noted that the Convention contains a list of psychotropic substances in four schedules, and that Buprenorphine and its salt Buprenorphine Hydrochloride are included in Schedule III. It stated: “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 Court then turned to Section 8(c) of the NDPS Act, stating: “The mandate under Section 8 is that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship (hereinafter collectively referred to as ‘deal in’) any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder.”
It clarified that the exception in Section 8(c) is conditional: “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.”
The Court rejected the interpretation adopted by the High Court, stating: “It is incorrect to state that unless a substance is listed in Schedule I of the NDPS Rules, it is excluded from the purview of Section 8(c). The statute does not provide for such exclusion.”
The Court relied on its decision in Union of India v. Sanjeev V. Deshpande, stating that it had clarified the applicability of Section 8(c) irrespective of whether a psychotropic substance was included in Schedule I of the Rules. It noted: “The Court in Sanjeev V. Deshpande (supra) has clearly held that the prohibition under Section 8 of the NDPS Act is attracted in respect of the psychotropic substances listed in Schedule to the NDPS Act as well as Schedule I to the NDPS Rules framed under the Act.”
The Bench addressed the retrospective applicability of Sanjeev V. Deshpande, observing:
“An overruling decision generally operates retrospectively. The intention to make the decision prospectively applicable or the application of the doctrine of ‘prospective overruling’ must be express and clear.”
It added: “No such express or clear intention can be found in the decision in Sanjeev V. Deshpande. Therefore, the interpretation laid down therein is applicable to all pending cases.”
The Court distinguished the facts in Rajesh Kumar Gupta v. State of Uttaranchal, upon which the High Court had heavily relied. It held that the accused in that case were qualified medical practitioners handling the drugs for therapeutic use, which was not the case here. It recorded:
“In the present case, the respondents are not medical practitioners. They were unable to produce any document showing authorisation or licence to deal with Buprenorphine.”
On the issue of overlapping jurisdiction between the NDPS Act and the D&C Act, the Court invoked Section 80 of the NDPS Act, stating: “The provisions of the NDPS Act are in addition to, and not in derogation of, the D&C Act. Therefore, prosecution under the NDPS Act is not precluded merely because the substance is also governed by the D&C Act.”
With respect to the applications under Section 216 of the CrPC, the Court referred to its decision in K. Ravi v. State of Tamil Nadu, holding: “Section 216 CrPC does not entitle the accused to file a fresh application seeking discharge once the charges have been framed by the Court.”
It further observed: “Allowing such applications would render the provisions of Sections 227 and 228 of the CrPC nugatory. Once charges have been framed, the only recourse is to proceed with trial or seek relief under revisional or appellate jurisdiction.”
The Court stated that the High Court mischaracterised the remittal as something other than a discharge. It noted: “The High Court was not justified in observing that the accused had not been discharged when in fact the effect of the order under Section 216 CrPC was to drop the charges framed under the NDPS Act and remit the case to a different forum.”
The Bench concluded that the High Court erred in its interpretation of the statutory provisions and in applying precedent. It held that the accused must face trial under the NDPS Act.
The Court found that the accused had not been acquitted in either case, and therefore, directed that both trials must proceed under the NDPS Act before the appropriate Special Judge.
“We direct that they be tried by the concerned Special Judge, NDPS, in accordance with law. The Trial Courts are directed to proceed with the trial and conclude it expeditiously.”
The Supreme Court allowed both appeals and set aside the impugned orders of the High Court in full. “With the aforesaid directions, we allow both the appeals filed by the appellants and set aside the impugned orders passed by the High Court.”
The Court disposed of all pending applications in both appeals.
Advocates Representing the Parties
For the Appellants: Ms. Ruchi Kohli, Advocate; Mr. Vatsal Joshi, Advocate; Mr. Anuj Srinivas Udupa, Advocate; Mr. Sarthak Karol, Advocate; Mr. Arvind Kumar Sharma, Advocate-on-Record; Mr. B. Krishna Prasad, Advocate-on-Record
For the Respondents: Mr. Yash Pal Dhingra, Advocate-on-Record; Mr. Deepak Goel, Advocate-on-Record; Mr. Jitendra Bharti, Advocate; Ms. Alka Goyal, Advocate
Case Title: Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.
Neutral Citation: 2025 INSC 498
Case Numbers: Criminal Appeal No. 1319 of 2013 and Criminal Appeal No. 272 of 2014
Bench: Justice J.B. Pardiwala and Justice Manoj Misra
[Read/Download order]
