Directorate of Revenue Intelligence vs Raj Kumar Arora & Ors.

Held: It cannot be said that the dealing in of “Buprenorphine Hydrochloride” would not amount to an offence u/s.8 owing to the fact that the said psychotropic substance only finds mention under the Schedule to the NDPS Act and is not listed under Schedule I of the NDPS Rules – There exists nothing to indicate that rr.53 and 64 of the NDPS Rules respectively, are the governing rules in their respective Chapters, more so, when the language of the other rules in Chapters VI and VII respectively, are clear about their application to the substances mentioned under the Schedule to the Act as well – All the psychotropic substances mentioned under the Schedule to the Act have potential grave and harmful consequences to the individual and the society at large, when abused – Some psychotropic substances mentioned under the Schedule to the NDPS Act are also mentioned under the D&C Act and the rules framed thereunder – This is only because those substances while capable of being abused for their inherent properties could also be used in the field of medicine – However, the mere mention of certain psychotropic substances under the D&C regime would not take them away from the purview of the NDPS Act, if they are also mentioned under the Schedule to the NDPS Act – Courts below erred in holding that the offence under the provisions of the NDPS Act is not made out – Trial courts could also not have discharged/deleted the charge under the NDPS Act framed against the accused persons while disposing of an application u/s.216 – This is something not permissible within the criminal procedure and the High Court unfortunately failed to take notice of this aspect – Accused persons were not acquitted but discharged – There arises no occasion to hold them technically guilty of the offences under the provisions of the NDPS Act that they were charged with – Accused to be tried by the concerned Special Judge, NDPS, in accordance with law – Impugned orders passed by the High Court set aside. [Paras 156, 157, 161-163] Narcotic Drugs and Psychotropic Substances Act, 1985 – Narcotic Drugs and Psychotropic Substances Rules, 1985 – Drugs and Cosmetics Rules, 1940 – NDPS Act and Rules, if applicable in addition to the 1940 Act:

Held: s.80 states that the provisions of NDPS Act or Rules made thereunder shall be in addition to, and not in derogation of D&C Act and Rules made thereunder – Thus, when an offence under D&C Act is made out or can potentially be made out, accused can also be charged or prosecuted for an offence under NDPS Act or vice-versa – Due to operation of r.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 NDPS Act read with its Rules – To say that no offence would be made out in a case where an accused deals with a substance mentioned only under Schedule to the Act, would have the consequence of rendering entire Schedule to the Act useless, unnecessary and nugatory – NDPS Rules do not absolutely prohibit dealing in of substances mentioned under Schedule I of Rules – Substances in Schedule I of Rules can also be dealt with but only for the limited purposes mentioned under Chapter VIIA – All other substances mentioned only under 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 u/s.8 NDPS Act. [Para 90] Narcotic Drugs and Psychotropic Substances Act, 1985 – s.8 – Narcotic Drugs and Psychotropic Substances Rules, 1985 – Treatment of substances mentioned in Schedule to the Act and not in Schedule I of the Rules – Sanjeev Deshpande’s judgment holding that s.8 is applicable to all the psychotropic substances which are mentioned in Schedule to the Act but not in Schedule-I to the Rules framed under the Act – If Sanjeev Deshpande’s judgment operative with prospective effect: Held: Decision in Sanjeev V. Deshpande’s case must be given retrospective effect – No reason to declare the interpretation given to s.8 of the NDPS Act and the relevant NDPS Rules, by the decision in Sanjeev V. Deshpande’s case, as prospectively applicable – On the other hand, in order to meet the ends of justice and with a view to ensure that public interest is safeguarded and to give effect to the salutary object behind the enactment of the NDPS Act, the decision must necessarily be retrospectively applicable – This Court in Sanjeev V. Deshpande’s case, perhaps, did not think fit to confine or restrict its interpretation of s.8 to future cases only – Whilst overruling Rajesh Kumar Gupta’s case, it deliberately chose not to discuss the doctrine of prospective overruling let alone resort to it – This conspicuous silence in Sanjeev Deshpande’s case as regards the prospective or retrospective effect of overruling Rajesh Kumar Gupta’s case has to be borne in mind and given due deference – As a natural corollary to the aforesaid, no reason why there should be deviation from the default rule of retrospectivity and instead, resort to the doctrine of prospective overruling – Thus, pending cases, if any, which were instituted before the decision of this Court in Sanjeev V. Deshpande’s case would also be governed by the law as clarified by it. [Paras 158-160] Doctrines – Doctrine of prospective overruling – Meaning, object and scope – Applicability or non-applicability of doctrine of prospective overruling in criminal matters, so far: Held: Default rule is that overruling of a decision generally operates retrospectively – This is because a judgement which interprets a statute or provision declares the meaning of the statute as it should have been construed from the date of its enactment and what has been declared to be the law of the land must be held to have always been the law of the land – If a subsequent decision alters or overrules the earlier one, it cannot be said to have made a new law – Correct principle of law is just discovered and applied retrospectively – Since resorting to the doctrine of “prospective overruling” is an exception to the normal rule that a judgement or decision applies retrospectively and to the general rule of doctrine of precedent, an express declaration by the court that its decision is prospectively applicable is absolutely necessary – Prospectivity as a concept cannot be considered to be inhered in situations since the intention to attribute prospectivity to a decision must be limpid and clear – Doctrine is being applied with a view to not unsettle everything that was undertaken in the past either on account of an existing law/rule or due to the decision of a court – Prospective overruling is an accepted doctrine as an extended facet of stare decisis – Doctrine involves giving effect to the new law laid down from a prospective date, ordinarily from the date of the judgement of the overruling decision – There are several factors or considerations which may weigh with the court before the doctrine of prospective overruling is applied – Ambit of the doctrine is co-extensive with the equity of a situation – If the doctrine of prospective overruling is applied, pending cases would not be affected by the new declaration of law – In the realm of criminal law, the question of prospective or retrospective declaration of a law/decision has been comparatively rare. [Paras 118, 122] Constitution of India – Art.20(3) – Consideration u/Art.20(3), on the retrospective applicability of Sanjeev Deshpande judgment: Held: Retrospective application of the dictum in Sanjeev V. Deshpande’s case overruling the decision in Rajesh Kumar Gupta’s case, would not give rise to any implications as regards the rights of the accused persons u/Art.20(1) – This is because while overruling the decision in Rajesh Kumar Gupta’s case, the decision in Sanjeev Deshpande’s case has only clarified the law as it stood from its inception and given true effect to the meaning assigned to the relevant provisions of the NDPS Act and the Rules thereunder, by the lawmakers – Same cannot be construed as creating a new offence – Additionally, the overruling of a decision cannot be equated to the enactment of an ex-post facto law, especially when the interpretation given to the statute/provision in the overruling decision is not a novel and unreasonably expansive interpretation of the provision in question such that it was completely unforseeable – It cannot be said that the indiscriminate dealing in of substances which are only mentioned under the Schedule to the NDPS Act and absent under Schedule I of the NDPS Rules, was indubitably legal and allowed by the legislation, prior to the decision in Sanjeev Deshpande’s case – Thus, giving retrospective effect to the decision in Sanjeev V. Deshpande’s case would be necessary considering the facts and circumstances of the matters. [Para 159] Code of Criminal Procedure, 1973 – ss.216, 228 – Alteration of charge – Meaning – Once, charge framed by a competent court u/s.228, if accused can seek for discharge/deletion of a particular offence from the charge u/s.216 : Held: s.216 provides the Court with the power to alter a charge and add to a charge – To alter a charge would be to vary an existing charge and make a different charge – Nowhere, does the provision expressly or by necessary implication lead to an inference that a charge could be deleted altogether – Once charges have been framed by the trial court in exercise of the powers u/s.228, the accused cannot thereafter be discharged, be it through an exercise of the powers u/s.227 or 216 – Language of s.216 provides only for the addition and alteration of charges and not for the deletion or discharge of an accused – If the Legislature intended to empower trial court with the power to delete a charge at that stage, the same would have been expressly and unambiguously stated – Thus, at such a stage of the trial, the accused must necessarily either be convicted or acquitted of the charges that were so framed against him. [Paras 149-151, 154]