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 Page 1 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 2 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined '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 Page 4 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 5 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 6 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 7 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 8 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 9 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 10 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 11 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 12 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 13 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 14 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined
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 deficiencies Page 16 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 and Page 17 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 18 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 an Page 20 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 22 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 23 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 24 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 25 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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:--Page 26 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025
NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 28 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 29 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 30 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 31 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 32 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 33 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 34 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 35 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 36 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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.Page 37 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025
NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined "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:
Page 38 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined "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 Page 39 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 40 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 41 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 person shall possess any psychotropic substance for any Page 42 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 43 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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. In Page 44 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 45 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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."Page 46 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025
NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined (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."Page 47 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025
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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 Page 48 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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:
Page 49 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 of Page 50 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 respondent-accused amounted to a prima facie violation Page 51 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 NDPS Act or the NDPS Rules or the orders made Page 52 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 are manufactured only for the purposes elaborated under Page 53 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 54 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 55 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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.
Page 56 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 57 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 58 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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.
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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 Page 59 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025 NEUTRAL CITATION R/SCR.A/3087/2025 CAV JUDGMENT DATED: 11/06/2025 undefined 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 Page 60 of 60 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Wed Jun 11 2025 Downloaded on : Wed Jun 11 22:59:02 IST 2025