1. Possession of Buprenorphine tidigesic — Conviction under Narcotic Drugs and Psychotropic Substances Act — Claim of personal medical use. (Para 3 )
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1999 Supreme(SC) 1252
SUPREME COURT OF INDIA
D.P.Mohapatra : K.T.Thomas
Hussain
Versus
State Of Kerala
Case No. : 780 of 1998
Date of Decision : 10/27/99
Advocates Appeared: Ahmed Altaf : Jad Bimal Roy : Nair K.M.K. : Nair Vipin
Possession of a psychotropic substance for personal medical use is lawful under Rule 66(2) of the NDPS Rules if the quantity does not exceed 100 dosage units. A substance is only a "manufactured drug" if it meets the statutory definition or is officially notified.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 2(xi), 8, 20, 21 and 27 - Rule 66 of the Rules - Possession of psychotropic substance - Substance found to be a specific medical formulation - Prosecution failed to prove it falls within the definition of "manufactured drug" under Section 2(xi) as no notification by Central Government was produced - Substance is listed as a psychotropic substance in the Schedule to the Act - Possession of psychotropic substance for personal medical use is permitted up to one hundred dosage units at a time under the proviso to Rule 66(2) - Possession of 6 ampoules does not exceed the permitted limit - Conviction and sentence without sanction of law. (Paras 4, 5, 6, 7, 9, 10, 11)
Facts of the case:
The appellant was found in possession of 6 ampoules of a substance and 2 syringes. He contended that the substance was being used under medical advice, which was supported by the testimony of a doctor. The trial court, finding the quantity exceeded the "small quantity" limit, convicted the appellant under Section 21 of the Act, treating the substance as a manufactured drug, and sentenced him to 10 years rigorous imprisonment and a fine. This conviction was subsequently confirmed by the High Court.
Findings of Court:
The court found that the substance recovered is a psychotropic substance and not a "manufactured drug" as defined under Section 2(xi) of the Act, as it did not fall under the specified categories nor was any government notification produced. Under the proviso to Rule 66(2), an individual is permitted to possess up to 100 dosage units of a psychotropic substance for personal medical use. The 6 ampoules recovered from the appellant do not exceed this limit.
Issues: Whether the recovered substance constitutes a "manufactured drug" under Section 2(xi) and whether its possession for personal medical use in the given quantity is an offence under the Act.
Ratio Decidendi: For a substance to be classified as a "manufactured drug," it must either fall within the specific categories listed in Section 2(xi)(a) or be declared so by the Central Government via notification in the Official Gazette. If a substance is a psychotropic substance, its possession for personal medical use is lawful provided the quantity does not exceed one hundred dosage units as per Rule 66(2).
Result: Appeal allowed; judgment of the High Court and Sessions Court quashed; appellant acquitted and directed to be set at liberty forthwith.
Legal Category Hierarchy
Table of Contents
2. Prosecution alleged illegal possession of a manufactured drug; defense contended the substance was used for medical purposes under prescription. (Para 3 , 4 )
3. Substance was not a manufactured drug under Section 2(xi) but a psychotropic substance; possession for personal medical use up to 100 dosage units is permitted. (Para 6 , 7 , 9 , 10 , 11 )
4. Possession of a psychotropic substance for personal medical use not exceeding one hundred dosage units is lawful under Rule 66 of the NDPS Rules. (Para 10 , 11 )
5. Appeal allowed — Conviction and sentence quashed — Appellant acquitted and set at liberty. (Para 13 )
6. Is Buprenorphine tidigesic considered a manufactured drug under the NDPS Act?
No. The court held that it does not fall under the first limb of the definition in Section 2(xi), and no government notification was produced to classify it under the second limb. (Para 6 )
7. What is the legal classification of Buprenorphine under the NDPS Act?
Buprenorphine is classified as a psychotropic substance, as listed in Item 92 of the Schedule to the Act. (Para 7 )
8. Under what conditions is the possession of a psychotropic substance lawful for an individual's medical use?
Possession is lawful for personal medical use provided the quantity does not exceed one hundred dosage units at a time, as per the proviso to Rule 66(2) of the NDPS Rules. (Para 8 , 9 , 10 )
K.T.THOMAS, J.
(1) THIS seems to be a very unfortunate case in which the appellant by his fatality had languished in jail already for a long period of 5 years, when as a matter of law he should have been moving about as a free citizen. Appellant in this case was charged by the Sessions Court with an offence under Section 20(b)(i) read with Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act"). He was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs 1,00,000. He filed an appeal before the High Court and a learned Single Judge who heard the appeal confirmed the conviction and sentence and dismissed his appeal. He filed this appeal by special leave from jail.
(2) THE misfortune hovering around him continued to persist as the counsel appointed as amicus curiae to argue for him did not turn up and we had to remove him as amicus curiae. We appointed another counsel (Mr Bimal Roy Jad) as amicus curiae. On 11/8/1999 we heard him and the learned counsel for the State in detail and reserved the judgment. Thereafter we felt that the appeal should be reheard as certain new features have emerged while contemplating the factual position in this case. We, therefore, reposted the matter. Today we are assisted by Shri Altaf Ahmad, learned Additional Solicitor General who argued for the State of Kerala, though Mr Bimal Roy Jad has not turned up to argue for the appellant, nor did he make any representation.
(3) THE factual matrix as revealed in the judgment of the trial court and the High Court is this:
ON 25/6/1994 the appellant was found in possession of 6 ampoules of "Buprenorphine tidigesic" each containing 2 ml. He was also found in possession of 2 syringes each of 5 ml capacity. It is pertinent to point out that the appellant, unusually, did not dispute that the aforesaid substance had been recovered from him. On the contrary he said that he was regularly using it under medical advice. He examined a Doctor as DW 1 to say that prescription was administered by him to the appellant for using the aforesaid substance as a medical formulation. The trial court after completing prosecution evidence and the defence evidence has proceeded to examine the District Medical Officer as Court Witness 1 in order to ascertain whether the quantity of substance recovered from the appellant would fall within the limit of "small quantity" envisaged in Section 27 of the Act. Having found that the quantity recovered from the appellant has exceeded the limit of "small quantity" the trial court proceeded to consider whether the offence charged against him was made out.
(4) SECTION 20 deals with contravention in relation to cannabis plant and cannabis. As the article recovered from the appellant cannot fall within the ambit of either cannabis plant or cannabis the court had slipped down to u Section 21 which relates to contravention of the law in respect of "manufactured drugs and preparations". As the District Medical Officer opined that "Buprenorphine tidigesic" is a manufactured drug the trial court a proceeded on that premise and found him guilty under Section 21 of the Act and convicted him and sentenced him as aforesaid.
(5) "MANUFACTURED drug" is defined in Section 2(xi) of the Act, which reads thus:
"2. (xi) manufactured drug means (a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate; (b) any other narcotic substance or preparation which the central government may, having regard to the available information as to its nature or to a decision, if any, under any international convention, by notification in the Official Gazette, declare to be a manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any international convention, by notification in the Official
