Dealing in Psychotropic Substances Listed in NDPS Act Schedule, Not Rules Schedule I, Constitutes Offence: Supreme Court

Supreme Court Clarifies: Dealing in Scheduled Psychotropic Substances Under NDPS Act is an Offence Even if Not in NDPS Rules Schedule I

New Delhi, April 17, 2025 - The Supreme Court of India, in a significant judgment, has settled the long-standing debate on whether dealing in psychotropic substances listed in the Schedule of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), but not in Schedule I of the NDPS Rules, constitutes an offense under the Act. Justices J.B. Pardiwala and Manoj Misra , presiding over the bench, overruled previous interpretations, firmly establishing that such dealings are indeed punishable under the NDPS Act.

Background of the Case

The judgment arose from two criminal appeals against orders passed by the Delhi High Court. These orders had upheld Trial Court decisions to transfer cases from the Special NDPS Court to the Metropolitan Magistrate, citing that the psychotropic substance in question, Buprenorphine Hydrochloride, was not listed in Schedule I of the NDPS Rules. The core issue was whether an offence under Section 8(c) of the NDPS Act could be established when dealing with psychotropic substances listed in the Act's Schedule but not in Schedule I of its Rules.

Arguments Before the Court

The Directorate of Revenue Intelligence (DRI), the appellant, argued that Section 8(c) of the NDPS Act prohibits dealing in any psychotropic substance listed in the Schedule to the Act, except for medical or scientific purposes under specific regulations. They contended that the High Court erred in relying on a previous judgment, State of Uttaranchal v. Rajesh Kumar Gupta , which incorrectly interpreted the NDPS Rules to apply only to substances in Schedule I. The appellant emphasized the Supreme Court's subsequent ruling in Union of India v. Sanjeev V. Deshpande , which had already overruled Rajesh Kumar Gupta , clarifying that the prohibition under Section 8 of the NDPS Act extends to all psychotropic substances listed in the Act's Schedule.

The respondents, accused of illegal possession and dealing in Buprenorphine, argued that because Buprenorphine Hydrochloride is not in Schedule I of the NDPS Rules, its handling is not prohibited under the NDPS Act. They leaned on the overruled Rajesh Kumar Gupta decision, asserting that the decision in Sanjeev V. Deshpande should be applied prospectively only.

Supreme Court's Analysis and Legal Principles

The Supreme Court meticulously analyzed the object of the NDPS Act and its alignment with the United Nations Convention on Psychotropic Substances, 1971. The Court emphasized the stringent nature of the NDPS Act, enacted to control and regulate operations related to narcotic drugs and psychotropic substances.

The judgment highlighted the definition of "psychotropic substance" in Section 2(xxiii) of the NDPS Act, which explicitly refers to the "list of psychotropic substances specified in the Schedule." Section 8 of the NDPS Act, prohibiting certain operations, was interpreted to encompass all substances listed in this Schedule. The exception within Section 8, allowing for medical or scientific purposes, was underscored as requiring strict adherence to the provisions of the Act, Rules, and any licenses or permits.

The Court firmly rejected the interpretation that Rules 53 and 64 of the NDPS Rules, which refer to Schedule I substances, limit the scope of the entire NDPS Rules. Instead, it affirmed the Sanjeev V. Deshpande ruling that these rules are "in the nature of exception" to the general scheme of regulation for all scheduled psychotropic substances.

> "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...in our view is wrongly decided."

The Court also addressed the retrospective application of overruling decisions, stating that generally, an overruling decision operates retrospectively unless explicitly declared prospective. The Court found no compelling reason to apply the doctrine of prospective overruling to Sanjeev V. Deshpande , emphasizing the need for retrospective application to uphold the object of the NDPS Act and safeguard public interest.

Regarding Article 20(1) of the Constitution, which prohibits ex-post facto criminal laws, the Court clarified that overruling Rajesh Kumar Gupta does not create a new offense. It merely clarifies the correct interpretation of existing law.

> "The overruling of a decision cannot be equated to the creation of a new law. The correct principle of law is merely clarified and applied retrospectively. Therefore, in the circumstances of the instant case, it cannot be said that a new offence was “created” subsequently. It is to be considered as always have existed."

Finally, the Court clarified that Section 216 of the CrPC, which allows for alteration or addition of charges, does not empower a court to delete charges or discharge an accused after charges have been framed.

Decision and Implications

The Supreme Court allowed both appeals, setting aside the High Court orders. It directed the Trial Courts to proceed with the trial of the accused under the NDPS Act, emphasizing an expeditious conclusion. The judgment underscores the comprehensive regulatory framework of the NDPS Act, ensuring that all scheduled psychotropic substances are subject to its prohibitions and regulations, regardless of their inclusion in Schedule I of the NDPS Rules. This ruling provides clarity and strengthens the enforcement against illicit dealings in psychotropic substances, reinforcing the NDPS Act's role in protecting public health and welfare.