Supreme Court of India
The State Of Punjab vs Rakesh Kumar on 3 December, 2018
Equivalent citations: AIR 2019 SUPREME COURT 84, 2019 (2) SCC 466, AIRONLINE 2018 SC 851, 2019 CRI LJ 982, (2018) 15 SCALE 363, (2018) 4 CRILR(RAJ) 1274, (2018) 4 CRIMES 489, 2018 CRILR(SC MAH GUJ) 1274, 2018 CRILR(SC&MP) 1274, (2019) 106 ALLCRIC 252, (2019) 193 ALLINDCAS 10, (2019) 1 ALLCRILR 1, (2019) 1 BOMCR(CRI) 160, (2019) 1 CGLJ 79, (2019) 1 JLJR 129, 2019 (1) KCCR SN 30 (SC), (2019) 1 MAD LJ(CRI) 374, (2019) 1 PAT LJR 184, (2019) 1 RAJ LW 564, (2019) 1 RECCRIR 218, 2019 (1) SCC (CRI) 739, (2019) 4 MH LJ (CRI) 427
Author: N.V. Ramana
Bench: M.R. Shah, Mohan M. Shantanagoudar, N. V. Ramana
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1512 OF 2018
(ARISING OUT OF SLP (CRL) NO. 4762 OF 2018)
STATE OF PUNJAB …APPELLANT
VERSUS
RAKESH KUMAR …RESPONDENT
WITH
Criminal Appeal No. 1514 of 2018
(Arising out of SLP (Crl) No.4816 of 2018)
Criminal Appeal No. 1515 of 2018
(Arising out of SLP (Crl) No.4817 of 2018)
Criminal Appeal No. 1517 of 2018
(Arising out of SLP(Crl) No.4869 of 2018)
Criminal Appeal No. 1516 of 2018
(Arising out of SLP (Crl) No.4818 of 2018)
Criminal Appeal No. 1513 of 2018
(Arising out of SLP (Crl) No.4796 of 2018)
Criminal Appeal No. 1518 of 2018
(Arising out of SLP (Crl) No.4881 of 2018)
1
Criminal Appeal No. 1521 of 2018
(Arising out of SLP (Crl) No.5032 of 2018)
Criminal Appeal No. 1530 of 2018
(Arising out of SLP (Crl) No.5897 of 2018)
Criminal Appeal No. 1520 of 2018
(Arising out of SLP (Crl) No.4968 of 2018)
Criminal Appeal No. 1526 of 2018
(Arising out of SLP (Crl) No.5893 of 2018)
Criminal Appeal No. 1525 of 2018
(Arising out of SLP (Crl) No.5892 of 2018)
Criminal Appeal No. 1519 of 2018
(Arising out of SLP (Crl) No.4953 of 2018)
Criminal Appeal No. 1528 of 2018
(Arising out of SLP (Crl) No.5895 of 2018)
Criminal Appeal No. 1523 of 2018
(Arising out of SLP (Crl) No.5886 of 2018)
Criminal Appeal No. 1527 of 2018
(Arising out of SLP (Crl) No.5894 of 2018)
Criminal Appeal No. 1524 of 2018
(Arising out of SLP (Crl) No.5891 of 2018)
Criminal Appeal No. 1529 of 2018
(Arising out of SLP (Crl) No.5896 of 2018)
Criminal Appeal No. 1522 of 2018
(Arising out of SLP (Crl) No.5877 of 2018)
2
Criminal Appeal No. 1533 of 2018
(Arising out of SLP (Crl) No.7223 of 2018)
Criminal Appeal No. 1532 of 2018
(Arising out of SLP (Crl) No.7222 of 2018)
Criminal Appeal No. 1536 of 2018
(Arising out of SLP (Crl) No.7228 of 2018)
Criminal Appeal No. 1531 of 2018
(Arising out of SLP (Crl) No.7221 of 2018)
Criminal Appeal No. 1534 of 2018
(Arising out of SLP (Crl) No.7225 of 2018)
And
Criminal Appeal No. 1535 of 2018
(Arising out of SLP (Crl) No.7227 of 2018)
JUDGMENT
N.V. RAMANA, J.
1. Leave granted.
2. The present appeals are filed by the State having been aggrieved by the common judgment and order dated 29 th January, 2018 passed by the High Court of Punjab and Haryana, allowing the applications for suspension of sentence, preferred by the accusedrespondents herein under Section 389 Cr.P.C. and 3 directing to release them on bail, while the Appeals are pending in the High Court.
3. In order to appreciate the merits of theseappeals, brief facts which have emerged from the case of the prosecution need to be noted at the outset. In all these appeals, the accused respondents were apprehended with“manufactured drugs” and convicted by the Trial Court for offences committed under Section 21 or Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “N.D.P.SAct”). The alleged offences and conviction recorded by the Trial Court against the respondents are listed below:
CASE NAME OF JUDGMENT
S.NO. RECOVERY CONVICTION
NO. ACCUSED BY & DATE
U/s 22 of
Special
CRA NDPS Act
3500 tablets of Judge, Sri
S840 Rakesh – 10 years
1. Microlit containing Muktsar
SB Kumar RI &
Diphenoxylate salt Sahib –
2015 Rs.1.00
18.11.2014
lac fine.
U/s 22 of
3.900 kgs of Judge,
CRA NDPS Act
Anwar intoxicating powder Special
S227 – 10 years
2. Khan @ containing Court,
SB RI &
Soni Dexiropropoxyphen Sangrur –
2015 Rs.1.00
e salt 17.11.2014
lac fine.
3. CRA Monnu 81.76 gms salt U/s 22 of Special
S Diphenoxylate NDPS Act Judge,
4
– 10 years
3148
RI & Ferozepur –
SB Hydrochloride
Rs.1.00 04.06.2015
2015
lac fine.
U/s 22 of
CRA Judge,
NDPS Act
S Diphenoxylate Special
– 10 years
4. 4134 Dharmu powder in Court,
RI
SB commercial quantity Ludhiana –
&Rs.1.00
2015 25.05.2015
lac fine.
U/s 22 of
CRA Judge,
NDPS Act
S Special
Gurwinder 70 gms containing – 10 years
5. 5246 Court, Singh Diphenoxylate salt RI & SB Ludhiana – Rs.1.00 2015 10.11.2015 lac fine.
U/s 22 (a)
& 2(c) of
NDPS Act
19110 mls of – 1 year Judge,
CRA
Mohd. intoxicating liquid RI & Special
S71
6. Akhtar @ 10 capsules of Rs.5000/ Court,
SB
Soni Parvon Spas, 10 fine and Sangrur –
2016
tablets of Euphoria 10 years 09.12.2015
RI &
Rs.1.00
lac fine.
U/s 22 of
Judge,
CRA NDPS Act
Special
S323 Munish – 10 years
7. 15 Vials of Rexcof Court,
SB Kumar RI &
Bathinda –
2015 Rs.1.00
09.01.2015
lac fine.
U/s 22 of
Judge,
CRA NDPS Act
Gudawar 60 gms intoxicating Special
S200 – 10 years
8. Ram @ powder containing Court, SBS
SB RI &
Gabbu Diphenoxylate salt Nagar –
2017 Rs.1.00
09.12.2016
lac fine.
9. CRA Baljinder 7500 mls of Corex U/s 22 of Judge,
5
NDPS Act
Special
S766 – 10 years
Singh @ syrup containing Court,
SB RI &
Banty Codeine phosphate Sangrur –
2017 Rs.1.00
20.12.2016
lac fine.
U/s 22 of
CRA Judge,
NDPS Act
S Sukhraj 120 bottles of Special
– 10 years
10. 1413 Kaur @ Rexcof containing Court,
RI &
SB Raj Codeine phosphate Sangrur –
Rs.1.00
2017 08.03.2017
lac fine.
U/s 21 of
CRA 25 gms Heroin & Judge,
NDPS Act
S Gurpreet 250 gms Special
– 10 years
11. 4055 Singh @ intoxicating powder Court,
RI &
SB Gopi containing Amritsar –
Rs.1.00
2016 Alprazolam 06.09.2016
lac fine.
U/s 22 of
CRA Judge,
320 gms NDPS Act
S Salwinder Special
intoxicating powder – 10 years
12. 2933 Singh @ Court, Tarn containing RI & SB Shinda Taran – Diphenoxylate Rs.1.00 2016 09.08.2016 lac fine.
U/s 22 of
Judge,
CRA NDPS Act
Karamjit 10 Vials of Rexcof Special
S985 – 10 years
13. Singh @ containing Codeine Court,
SB RI &
Karma Phosphate Faridkot –
2017 Rs.1.00
04.01.2017
lac fine.
U/s 22 of
300 gms Addl.
CRA NDPS Act
Mandeep intoxicating powder Sessions
S723 – 10 years
14. Singh @ containing Judge,
SB RI &
Mani Diphenoxylate Amritsar –
2016 Rs.1.00
Hydrochloride 23.12.2015
lac fine.
15. CRA Jagmohan 100 gms U/s 22 of Judge,
S Singh @ intoxicating powder NDPS Act Special
1531 Mithu containing – 10 years Court,
SB Diphenoxylate RI & Amritsar –
2016 Hydrochloride Rs.1.00 10.03.2016
6
lac fine.
U/s 22 of
CRA Judge,
NDPS Act
S Nachhatar 60 gms intoxicating Special
– 10 years
16. 2398 Singh @ powder containing Court, Tarn
RI &
SB Sonu Diphenoxylate Taran–
Rs.1.00
2017 16.05.2017
lac fine.
50 bottles of Rexcof
Judge,
Gaurav syrup & 250 tablets U/s 22 of
CRA Special
Bajaj (the of Carisona from NDPS Act
S Court,
other Gaurav Bajaj 45 – 10 years
17. 1972 Fazilka–
appellant bottles of Rexcof RI &
SB 17.03.2017
Manpreet syrup & 200 tablets Rs.1.00
2017
Singh) of Carisona from lac fine.
Manpreet Singh
U/s 22 of
CRA 19 vials of Rexcof, Judge,
NDPS Act
S 1200 tablets of Special
Gurpreet – 10 years
18. 3921 Pinotil and 450 Court,
Singh RI &
SB tablets of Bathinda –
Rs.1.00
2013 Alprazolam 24.10.2013
lac fine.
U/s 22 of
CRA Judge,
NDPS Act
S 12 vials of Rexcof Special
Jaspal – 10 years
19. 1529 containing codeine Court,
Singh RI &
SB Phosphate Sangrur –
Rs.1.00
2017 07.03.2017
lac fine.
1300 tablets
U/s 22 of
Sanjiv weighing 101, 400 Judge,
CRA NDPS Act
Kumar & gms from Sanjiv Special
S750 – 10 years
20. Paramjit Kumar; 400 tablets CourtIII,
SB RI &
Singh @ weighing 31.200 Ferozepur –
2014 Rs.1.00
Pamma gms from Paramjit 27.01.2014
lac fine.
Singh @ Pamma
U/s 22 of
CRA Judge,
NDPS Act
S Special
Akash 3500 mls containing – 10 years
21. 4894 Court,
Kumar Codeine Phosphate RI &
SB Sangrur –
Rs.1.00
2015 16.10.2015
lac fine.
7
U/s 22of
CRA Judge,
NDPS Act
S 20 vials of Rexcof Special
Satnam – 10 years
22. 2574 containing Court,
Singh RI &
SB Dextropropoxyphene Faridkot –
Rs.1.00
2017 06.07.2017
lac fine.
U/s 22 of
CRA Judge,
2000 tablets NDPS Act
S Amit Special
containing – 10 years
23. 1616 Kumar Court,
Diphenoxylate RI &
SB Mehta Patiala –
Hydrochloride Rs.1.00
2017 01.03.2017
lac fine.
U/s 22 of
Addl.
CRA NDPS Act
Gurjant 60 gms intoxicating Sessions
S185 – 10 years
24. Singh @ powder containing Judge, Tarn
SB RI &
Janta Diphenoxylate Taran –
2017 Rs.1.00
20.10.2016
lac fine.
100 tablets marka
Alprazolam in 5
CRM strips, 12 injections U/s Judge,
Gurpreet
M Buprenorphine 2 22/61/85 Special
25. Singh @
23054 ml, 2 bottles of of NDPS Court,
Tuli
2017 injections Avil 10 ml Act Jalandhar
& 116 gms
intoxicant powder
4. Aggrieved by the Judgment and conviction by the respective Trial Courts, the accusedrespondents approached the High Court through various appeals. The accusedrespondents, during the pendency of the appeals, preferred an application seeking suspension of sentence. Since a common question of law was involved in the above appeals, the High Court heard the matters 8 together and passed a common order dated 29.01.2018, allowing the applications for suspension of sentence preferred by the accusedrespondents. The High Court observed that manufactured drugs, be it containing narcotic drugs or psychotropic substances, if manufactured by a manufacturer, must be tried, if violation is there, under the Drugs and Cosmetics Act and not under the NDPS Act, except those in loose form by way of powder, liquid etc. Dissatisfied by the above order dated 29.01.2018, the State has preferred the present appeals.
5. The counsel on behalf of the appellantState, while criticizing the impugned order passed by the High Court, drew our attention to the relevant provisions of the N.D.P.S Act and Drugs and Cosmetics Act, 1940, and submitted that, the N.D.P.S Act, itself does not bar the application of the Drugs and Cosmetics Act, 1940. Further, the counsel also argued that, the impugned judgment is in gross violation of the decision rendered in Inderjeet Singh v. State of Punjab 2014 (3) RCR (Criminal) 953, by the Division Bench of the Punjab and Haryana High Court. The counsel also relied upon the decision rendered by 9 this Court in Union of India v. Sanjeev V. Deshpande (2014) 13 SCC 1, wherein it was clearly held that dealing in narcotic drugs and psychotropic substances is permissible only if it is for medical or scientific purposes. But even the usage for medical and scientific purposes is not restriction free, as it is subject to rules under the N.D.P.S Act.
6. On the contrary, the counsel on behalf of the accused respondents has supported the reasoning of the High Court while stating that it is very farfetched to presume that, any person who is apprehended with bulk quantity of manufactured drug, without having a license for the same, has committed an offence which is liable to be prosecuted under the N.D.P.S Act. The counsel further submitted that, the High Court was correct to conclude that, it can be considered as a violation of the provisions of the Drugs and Cosmetics Act, 1940. Therefore, there was no error in granting the relief of suspension of sentence, considering that the appeals are not going to be adjudicated in the near future.
7. Heard the learned counsel for both the parties.
8. At the outset it is essential to note the objectives of the two 10 legislations before us, i.e., the Drugs and Cosmetics Act, 1940 and the N.D.P.S Act. The Drugs and Cosmetics Act, 1940 was enacted to specifically prevent substandard drugs and to maintain high standards of medical treatment. (See Chimanlal Jagjivandas Sheth v. State of Maharashtra AIR 1963 SC
665) 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 N.D.P.S Act is a special law enacted by the Parliament with an object to control and regulate the operations relating to narcotic drugs and psychotropic substances. After analyzing 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 N.D.P.S Act intends to curb and penalize the usage of drugs which are usedfor intoxication or for getting a stimulant effect.
9. At this juncture, it is also pertinent to note the relevant provisions under the N.D.P.S Act. Section 8 of the 1985 Act, is the prohibitory clause whose violation would lead to penal 11 consequence:
Section 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 interState, export inter State, import into India, export from India or transship 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 authorization also in accordance with the terms and conditions of such licence, permit or authorization:
Provided that, and subject to the other provisions of this Act and the rules made there under, 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 interState 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.
10. Further, Section 21 provides for punishment for contraventions in 12 relation to manufactured drugs and preparations and Section 22 provides for punishment for contraventions in relation to psychotropic substances. Both the above provisions provide for the imposition of rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and the imposition of a fine which shall not be less than one lakh rupees but which may be extended to two lakh rupees, if the recovered substance amounts to commercial quantity. However, the proviso appended thereto empowers the Court, with a discretionary power to impose a fine exceeding two lakh rupees for reasons to be recorded in the judgment.
11. In the present case, the accusedrespondents were found in bulk possession of manufactured drugs without any valid authorization. The counsel on behalf of the appellantState has extensively stressed that the actions of the accusedRespondents amounts to clear violation of Section 8 of the N.D.P.S Act as it clearly prohibits possession of narcotic substances except for medicinal or scientific purposes. In furtherance of the same, the counsel on behalf of the appellantState has put emphasis on the judgment rendered by this court in the case of Union of India 13 vs. Sanjeev V. Deshpande (supra), wherein it was held that:
“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. Sections 9 and 10 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…” (emphasis supplied)
12. In the present appeals before us, the trial courts after analyzing the evidence placed before them, held the accused Respondents guilty beyond reasonable doubt and convicted them for offences committed under Section 21 and Section 22 of the N.D.P.S Act. 14
13. The counsels for the accusedrespondents have strongly supported the judgment of the High Court wherein it was held that, since the present matters deal with “manufactured drugs” the present respondents should be tried for the violation of provisions of Drugs and Cosmetics Act, 1940.
14. 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 N.D.P.S Act, clearly lays down that application of the Drugs and Cosmetics Act is not barred, and provisions of N.D.P.S. 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 N.D.P.S Act are not in derogation of the Drugs and Cosmetics Act, 1940. This Court in the case of Union of India vs. Sanjeev V. Deshpande (supra), has held that, “35. …essentially the Drugs & 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 1940 Act.” 15 (emphasis supplied)
15. The aforesaid decision further clarifies that, the N.D.P.S Act, should not be read in exclusion to 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 accusedRespondents amounted to a primafacie violation of Section 8 of the N.D.P.S Act, they were charged under Section 22 of the N.D.P.S Act.
16. In light of above observations, we find that decision rendered by the High Court holding that the accusedrespondents must be tried under the Drugs and Cosmetics Act, 1940 instead of the N.D.P.S Act, as they were found in possession of the “manufactured drugs”, does not hold good in law. Further, in the present case, the accusedrespondents had approached the High Court seeking suspension of sentence. However, in granting the aforesaid relief, the High Court erroneously made observations on the merits of the case while the appeals were still pending before it.
17. Considering the facts and circumstances of the present case and 16 the gravity of offence alleged against the accusedrespondents, the order of the High Court directing suspension of sentence and grant of bail is clearly unsustainable in law and the same is liable to be set aside.
18. Accordingly the impugned order passed by the High Court is hereby set aside and the concerned authorities are directed to take the accusedrespondents herein into custody forthwith.
19. Lastly, the counsels for respondents in Appeals arising out of SLP (Crl) No.4816/2018 and SLP (Crl) No.4817/2018 have specifically pleaded that the respondents have already undergone a considerable period under incarceration. In light of the same, we request the High Court to expedite the hearings and dispose of the appeals accordingly. It is needless to observe that the observations made during the course of this order are only for deciding these appeals.
20. The appeals stand allowed in aforesaid terms. As a sequel pending applications, if any shall also stand disposed of. 17 ……………………………..J. (N. V. Ramana) ……………………………..J. (Mohan M. Shantanagoudar) ……………………………..J. (M.R. Shah) NEW DELHI, DECEMBER 03, 2018 18