Safiya Malik

The Supreme Court Division Bench comprising Justice Dipankar Datta and Justice Manmohan held that the appellant, who was named in a first information report under the Narcotic Drugs and Psychotropic Substances Act, 1985, was entitled to anticipatory bail in the absence of any contrary judicial view holding Tapentadol Hydrochloride to be a scheduled substance. The Court recorded that the substance allegedly recovered was not included in the list of psychotropic substances appended to the NDPS Act, and therefore, the appellant’s pre-arrest bail plea warranted acceptance. The High Court’s denial of anticipatory bail was accordingly set aside.

The matter arose from FIR No. 77 of 2024 dated 16 September 2024, registered at Police Station Lakho Ke Behram, District Ferozepur, Punjab, under Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The appellant was named as an accused in connection with the recovery of 550 tablets of Tapentadol Hydrochloride from a vehicle in which he was travelling along with the co-accused. It was recorded that the car belonged to the co-accused.

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The appellant approached the High Court of Punjab and Haryana seeking anticipatory bail in CRM-M No. 62899 of 2024. By judgment dated 13 December 2024, the High Court declined to grant the relief. Aggrieved by this decision, the appellant preferred a Special Leave Petition before the Supreme Court.

The matter was heard by the Division Bench on 28 March 2025. Mr. Karandeep Singh Sidhu, Advocate, appeared on behalf of the appellant, assisted by Ms. Ruchi Gupta, Advocate-on-Record. The respondent State was represented by Ms. Baani Khanna, Advocate-on-Record.

It was contended by the appellant that Tapentadol Hydrochloride, the substance allegedly recovered, did not fall within the list of psychotropic substances specified in the Schedule appended to the NDPS Act. The counsel submitted that mere recovery of such tablets would not attract the penal provisions of the NDPS Act in the absence of statutory inclusion.

In support of this submission, reliance was placed on decisions of the High Courts that had considered the status of Tapentadol under the NDPS Act. These included 2024 SCC OnLine Mad 445 and 2022 SCC OnLine Bom 1631, wherein it had been held that Tapentadol Hydrochloride is not a psychotropic substance within the meaning of the statute. It was argued that in the absence of any notification to the contrary or any conflicting judicial pronouncement, these decisions ought to prevail.

The State did not place any decision to the contrary before the Court. It also did not dispute that the name of Tapentadol Hydrochloride does not appear in the Schedule to the NDPS Act.

The Supreme Court considered the legal position regarding the applicability of the NDPS Act to Tapentadol and proceeded to examine whether the appellant’s request for anticipatory bail merited acceptance in light of the absence of statutory classification and prevailing judicial precedents.

The Court recorded the factual allegation that 550 tablets of Tapentadol Hydrochloride were recovered from a car in which the appellant was travelling along with the co-accused, who owned the vehicle.

It noted the submission advanced by the appellant's counsel that Tapentadol Hydrochloride is not included in the Schedule of psychotropic substances under the NDPS Act. The Court recorded:

“It is the claim of Mr. Sidhu that Tapentadol Hydrochloride tablet is not included in the list of psychotropic substances specified in the Schedule, appended to the NDPS Act.”

The Court further observed that reliance had been placed on reported decisions of the High Courts holding that Tapentadol Hydrochloride does not fall within the scope of the NDPS Act. Specifically, it noted:

“There are reported judgments of the High Courts holding that Tapentadol Hydrochloride is not a psychotropic substance, included in the Schedule of the NDPS Act.”

The Court then addressed the absence of any divergent judicial view or contrary statutory interpretation presented during the proceedings. It observed:

“No contrary decision has been brought to our notice.”

Upon perusal of the above circumstances and in the absence of any statutory prohibition applicable to Tapentadol, the Bench recorded its view that the anticipatory bail application was liable to be allowed. The Court held:

“We are, accordingly, of the view that the appellant is entitled to be admitted to an order for grant of pre-arrest bail.”

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The impugned judgment of the High Court, which had refused anticipatory bail, was set aside.

The Bench proceeded to direct the trial court to grant anticipatory bail in the event of arrest, subject to terms and conditions to be fixed by the trial court. It ordered:

“It is directed that in the event of the appellant being arrested, he shall be released on bail by the trial court on terms and conditions to be fixed by the trial court.”

All pending applications were disposed of.

Advocates Representing the Parties

For the Petitioners: Karandeep Singh Sidhu, Advocate; Ruchi Gupta, Advocate-on-Record

For the Respondents: Baani Khanna, Advocate-on-Record

Case Title: Kulwant Singh v. The State of Punjab

Case Number: Criminal Appeal No. 1558 of 2025 arising out of SLP (Crl.) No. 1031 of 2025

Bench: Justice Dipankar Datta and Justice Manmohan

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