2025 Supreme(SC) 644

SUPREME COURT OF INDIA
J.B. Pardiwala, Manoj Misra, JJ.
Directorate of Revenue Intelligence – Appellant
Versus
Raj Kumar Arora & Ors. – Respondents
Criminal Appeal No. 1319 of 2013 With Criminal Appeal No. 272 of 2014
Decided On : 17-04-2025

IMPORTANT POINTS
(1) Seizure of narcotic drugs – Mere mention of certain psychotropic substances under D&C regime would not take them away from purview of NDPS Act, if they are also mentioned under Schedule to NDPS Act.
(2) NDPS Act is not in derogation of D&C Act – NDPS Act applies in addition to provisions of D&C Act.
(3) Once charges have been framed by Trial Court in exercise of powers under Section 228 Cr.P.C., accused cannot thereafter be discharged, be it through exercise of powers under Sections 227 or 216 Cr.P.C.
(4) Overruling of a decision cannot be equated to creation of a new law.

Headnote:

(A) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 8(c) – Narcotic Drugs and Psychotropic Substances Rules, 1985 – Rule 2(k) – Seizure of narcotic drugs – Appeal against acquittal – If any psychotropic substance mentioned in Schedule to the Act is being dealt with for a purpose other than medical or scientific purposes, offence under Section 8(c) of NDPS Act would be made out – If any psychotropic substance mentioned in 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, terms and conditions of licence, permit or authorisations, then also, offence under Section 8(c) of NDPS Act could be said to have been made out – It is only when exception is complied with entirely or wholly, that accused can lay claim to benefit provided under said provision – It is just not enough to prove or establish that 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 – Several of these drugs and substances are inherently of such a nature that they have widespread medicinal and scientific applications – An expansive interpretation of exception that mere potential for usage of narcotic drug or psychotropic substance, for medical or scientific purpose, is sufficient would run counter to object of the Act which seeks to act as a deterrent to widespread dealing in narcotic drugs and psychotropic substances – NDPS rules must not be understood as laying down standards different from or inconsistent with substantive provisions of NDPS Act, especially Section 8 and Schedule to NDPS Act – Underlying object of NDPS rules is to “permit and regulate” certain activities for carrying out the purposes of NDPS Act and not to “prohibit” those activities. (Paras 55, 56, 59 and 90)

(B) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 8(c) – Narcotic Drugs and Psychotropic Substances Rules, 1985 – Rules 64 and 65 – Seizure of narcotic drugs – Manufacture of all psychotropic substances (as listed in Schedule to the Act), and those mentioned under Schedule I of Rules specifically for the purposes elaborated under Chapter VIIA, in violation of conditions of licence of manufacture issued under D&C Act would amount to a contravention of Rule 65 of NDPS Rules and thereby Section 8 of NDPS Act itself – When such contravention of conditions of licence occurs, it cannot be said that offence under NDPS Act would not be made out and that contravention would be solely covered by D&C regime – Due to operation of Rule 65, violation of any of conditions of licence under D&C Act read with its Rules would ipso facto tantamount to violation of NDPS Act read with its Rules as well. (Paras 65, 66 and 90)

(C) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 80 – Application of Drugs and Cosmetics Act, 1940 – NDPS Act is not in derogation of D&C Act – NDPS Act applies in addition to provisions of D&C Act – There may arise situations wherein substance in question in a particular case falls under ambit of both NDPS Act and D&C Act – However, overlap would not necessarily imply that application of provisions of NDPS Act would be at the cost of exclusion of provisions of D&C Act, or vice versa – Section 80 of NDPS Act must be understood in context and object behind coming into force of NDPS Act and D&C Act respectively, and distinct purposes that they seek to achieve. (Paras 87 and 90)

(D) Statute Law – Presumption of Prospectivity – Declaration of a statute dealing with substantive rights, by Legislature, is considered to be prospective unless it is expressly or by necessary implication made to have retrospective operation – Legal maxim “Nova Constitutio Futuris Forman Imponere Debet, Non Praeteritis” indicating that a new law ought to regulate what is to follow and not the past, carries with it presumption of prospectivity and this presumption is generally said to operate unless contrary is shown by an express provision in statute or if retrospectivity is otherwise discernible through necessary implication – However, when a decision rendering an opinion as regards interpretation of a penal provision is subsequently overruled by decision of a larger Bench, consequence of overruling is starkly different and by default, retrospective – Law declared by this Court is retrospective and is normally assumed to be law from inception – A decision or judgment enunciating a principle of law is applicable to all cases irrespective of stage of pendency before different forum since what has been enunciated is meaning of law which existed from inception of concerned statute or provision – What has been declared to be law of land must be held to have always been law of the land – Overruling is generally retrospective with only caveat being that matters that are res judicatae or accounts that have been settled in the meantime would not be disturbed – There is no prospective overruling unless it is so indicated expressly – Resorting to doctrine of “prospective overruling” is an exception to normal rule that a judgment or decision applies retrospectively and to general rule of Doctrine of Precedent – Merits and demerits of retrospective or prospective application is examined and doctrine is applied wherever appropriate and necessary – Prospectivity as a concept cannot be considered to be inhered in all situations since intention to attribute prospectivity to a decision must be limpid and clear – Court does not make legal, something that is illegal, for past period by invoking doctrine of prospective overruling. (Paras 91, 92, 94, 95, 96, 101 and 103)

(E) Statute Law – Doctrine of Prospective Overruling – As a default rule, any Judgment deciding a question of law would be retrospective and would apply to factual situation in background of which such a decision is rendered – However, it is only when hardship is too great that such a retrospective operation is withheld – Object is to ensure smooth transition of law and not disturb matters that have attained finality – Prospective overruling is an accepted doctrine as an extended facet of stare decisis – Invocation of doctrine of prospective overruling or attribution of prospectivity to a decision must not be resorted to in a routine manner without Court satisfying itself that circumstances demand such a solution, both to do complete justice to the matter at hand and also to reorient law in right direction without creating widespread chaos and disruption – By employing doctrine of prospective overruling, matter pending before different forums would still be governed under old law or overruled decision – Pending cases would not be affected by new declaration of law – Doctrine of prospective overruling was designed to prevent unravelling of past transactions and re-opening of matters which have already attained finality – Acquittals granted on the basis of earlier position/interpretation of law must not be interfered with. (Paras 105, 113, 118 and 122)

(F) Constitution of India – Article 20(1) – General Clauses Act, 1897 – Section 6 – Law in force – It would be highly unjust, unfair and in violation of human rights to punish a person under an ex-post facto law for acts or omissions that were not an offence when committed – “Law in force” under Article 20 must be taken to be law factually in force or existing law at relevant time and not a law made applicable to past period by virtue of a deeming fiction by Legislature – Overruling of a decision cannot be equated to creation of a new law – Correct principle of law is merely clarified and applied retrospectively – No individual can claim benefit of decision declaring a provision as unconstitutional for transactions or events which occurred prior to that decision if intention to give prospective effect to the decision is plain and direct. (Paras 131, 134, 135 and 136)

(G) Criminal Procedure Code, 1973 – Section 216 [Section 239 of BNSS] – Alteration of charge – Any Court is empowered to “alter” or “add” to any charge framed against accused, at any time before Judgment is pronounced – Power conferred upon Courts cannot be exercised after decision is pronounced in the matter – Although provision does not expressly provide for stage of trial after which power under Section 216 Cr.P.C. can be exercised, yet logic and rationale requires it to be exercised after a charge has been framed by Trial Court under Section 228 Cr.P.C. – If no charge has been framed, there arises no occasion to add or alter it – As a natural corollary, if accused has already been discharged under Section 227 Cr.P.C., no application or action under Section 216 Cr.P.C. would be maintainable – Such a power can be invoked by Court suo moto as well – This power under Section 216 Cr.P.C. is exclusive to concerned Court and no party can seek such addition or alteration of charge as a matter of right by filing application – Power must not be construed in a restricted manner – It is obligatory for Court to ensure that no prejudice is caused to accused due to addition or alteration of charge – Accused must be informed and made aware of new charge as also case against him so that he can understand defence that can be led on his behalf. (Paras 143, 144 and 145)

(H) Criminal Procedure Code, 1973 – Sections 216 and 227 [Section 239 of BNSS] – Alteration of charge – When Court exercises its power under Section 216, either on its own motion or on an application made by parties, and “alters” a charge, it would be necessary that existing charge be varied and a new charge be made – Once charges have been framed by Trial Court in exercise of powers under Section 228 Cr.P.C., accused cannot thereafter be discharged, be it through exercise of powers under Sections 227 or 216 Cr.P.C. – Language of Section 216 Cr.P.C. provides only for addition and alteration of charge(s) and not for deletion or discharge of accused. (Paras 149 and 154)

(I) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 8(c) – Seizure of narcotic drugs – Discharge of accused – It cannot be said that dealing in “Buprenorphine Hydrochloride” would not amount to offence under Section 8 of NDPS Act owing to fact that said psychotropic substance only finds mention under Schedule to NDPS Act and is not listed under Schedule I of NDPS Rules – Mere mention of certain psychotropic substances under D&C regime would not take them away from purview of NDPS Act, if they are also mentioned under Schedule to NDPS Act – Both Trial Court and High Court committed error in holding that offence under provisions of NDPS Act is not made out – Trial Courts in both appeals could also not have discharged/deleted charge under NDPS Act framed against accused persons while disposing of application under Section 216 Cr.P.C. – Impugned orders passed by High Court set aside – Trial Courts directed to proceed with trial and conclude it expeditiously. (Paras 156, 157, 161, 162 and 163)

Facts of the case:

Issues for determination are: –

I. Whether production, manufacture, possession, sale, purchase, transport, warehouse, use, consumption, import inter-State, export inter-State, import into India, export from India or transhipment of a psychotropic substance which is listed under Schedule to NDPS Act but not mentioned under Schedule I of NDPS Rules would constitute an offence under Section 8(c) of NDPS Act?

II. Whether decision of this Court in Sanjeev V. Deshpande (2014) 13 SCC 1, must operate with prospective effect?

III. Once, charge has been framed by a competent court under Section 228 of Cr.P.C., can an accused thereafter seek for discharge/deletion of a particular offence from charge under Section 216 Cr.P.C.?

Findings of Court:

Both Trial Court and High Court committed error in holding that offence under provisions of NDPS Act is not made out. Trial Courts in both appeals could also not have discharged/deleted charge under NDPS Act framed against accused persons while disposing of an application under Section 216 Cr.P.C. This is something not permissible within our criminal procedure and High Court unfortunately failed to take notice of this aspect.

Result : Appeals allowed.