Sec.80 Application of the Drugs and Cosmetics Act, 1940 not barred- Secs.8 ,19, 24, 27A and 37 , and Rules 63,64 and 65 - all rules etc., are in support of central act and in addition to central act - in Rajesh kumar Gupta case it was wrongly decided that the prohibition contained in Rule 63[11] of the 1985 Rules is applicable only to those narcotic drugs and psychotropic substances which are mentioned in Schedule-I to the Rules and not to the psychotropic substances enumerated in the Schedule to the Act. and further held that In the light of our above conclusion the correctness of the orders impugned in all the Criminal Appeals is normally required to be considered by the Bench of appropriate strength. However, in view of the fact that most of these matters are old matters [pertaining to years 2006 to 2013], we deem it appropriate to remit all these matters to the concerned High Courts for passing of appropriate orders in the light of this judgment.=
“Our attention has been invited by the learned counsel to two decisions of
this Court; namely,
a decision of 3-Judge Bench in Collector of Customs,
New Delhi vs. Ahmadalieva Nodira (2004) 3 SCC 549 and
subsequent decision
of 2-Judge Bench in State of Uttaranchal vs. Rajesh Kuamr Gupta (2007) 1
SCC 355.
Reference was also made of Section 80 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 which reads as under:
“80. Application of the Drugs and Cosmetics Act, 1940 not barred. –
The
provisions of this Act or the rules made there under shall be in addition
to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of
1940) or the rules made there under.
In our opinion, in view of the fact that the effect of Section 80 requires
to be considered, we grant leave and direct the Registry to place the
papers before the Hon’ble the Chief Justice for placing the matter
before a 3-Judge Bench.
whether persons accused of committing an
offence under the Act could be enlarged on bail in view of the stipulations
contained under Section 37 of the Act.
Section 37[1] of the Act stipulates that all the offences punishable
under the Act shall be cognizable.
It further stipulates that:—
(1) persons accused of an offence under Section 19, 24, 27A or persons
accused of offences involved in “commercial quantity”[2] shall not be
released on bail, unless the public prosecutor is given an opportunity to
oppose the application for bail; and
(2) more importantly that unless “the Court is satisfied that there are
reasonable grounds for believing” that the accused is not guilty of such an
offence.
Further, the Court is also required to be satisfied that such a
person is not likely to commit any offence while on bail.
In other words, Section 37 departs from the long established principle of
presumption of innocence in favour of an accused person until proved
otherwise.
“6. As observed by this Court in Union of India v. Thamisharasi clause (b)
of sub-section (1) of Section 37 imposes limitations on granting of bail in
addition to those provided under the Code.
The two limitations are: (1) an
opportunity to the Public Prosecutor to oppose the bail application, and
(2) satisfaction of the court that there are reasonable grounds for
believing that the accused is not guilty of such offence and that he is not
likely to commit any offence while on bail.
7. The limitations on granting of bail come in only when the question of
granting bail arises on merits.
Apart from the grant of opportunity to the
Public Prosecutor, the other twin conditions which really have relevance so
far as the present accused-respondent is concerned, are: the satisfaction
of the court that there are reasonable grounds for believing that the
accused is not guilty of the alleged offence and that he is not likely to
commit any offence while on bail.
The conditions are cumulative and not
alternative.
The satisfaction contemplated regarding the accused being not
guilty has to be based on reasonable grounds.
The expression “reasonable
grounds” means something more than prima facie grounds.
It contemplates
substantial probable causes for believing that the accused is not guilty of
the alleged offence…”=
Whereas Rule 65 stipulates that with reference to the psychotropic
substances other than those specified in Schedule-I to the Rules could be
manufactured subject to the limitation specified under Rule 65. In other
words, notwithstanding the prohibition under Section 8(c), the Central
Government in exercise of its power under Section 9(1)(a)(vi) permits the
manufacture of those psychotropic substances other than specified in
Schedule-I to the Rules.=
Therefore, we are of the opinion that the conclusion reached by the
CHIEF JUSTICE, J. CHELAMESWAR, A.K. SIKRI
REPORTABLE
IN THE SUPREME COUR OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 660 OF 2007
Union of India & Another …Appellants
Versus
Sanjeev V. Deshpande …Respondent
WITH
CRIMINAL APPEAL NO. 848 OF 2011
CRIMINAL APPEAL NO. 855 OF 2011
CRIMINAL APPEAL NO. 876 OF 2011
CRIMINAL APPEAL NO.1711 OF 2014
(Arising out of SLP (Crl.) No. 2694 of 2006)
CRIMINAL APPEAL NO.1713 OF 2014
(Arising out of SLP (Crl.) No. 5714 of 2006)
CRIMINAL APPEAL NO.1710 OF 2014
(Arising out of SLP (Crl.) No. 4241 of 2009)
CRIMINAL APPEAL NO.1712 OF 2014
(Arising out of SLP (Crl.) No. 6743 of 2009)
CRIMINAL APPEAL NO.1714 OF 2014
(Arising out of SLP (Crl.) No. 3000 of 2012)
CRIMINAL APPEAL NO.1715 OF 2014
(Arising out of SLP (Crl.) No. 9114 of 2012)
CRIMINAL APPEAL NO.1716 OF 2014
(Arising out of SLP(Crl.) No. 9374 of 2012)
CRIMINAL APPEAL NO.1717 OF 2014
(Arising out of SLP(Crl.) No. 3558 of 2013)
J U D G M E N T
Chelameswar, J.
1. Leave granted in the special leave petitions.
2. This batch of matters is listed pursuant to various orders of this
Court opining that these matters are required to be considered by a larger
Bench.
3. The first of such orders is dated 20th April, 2007 made in Criminal
Appeal No.644 of 2007. By the said order, leave was granted in SLP (Crl.)
No.4976 of 2006. The order reads as follows:-
“Our attention has been invited by the learned counsel to two decisions of
this Court; namely, a decision of 3-Judge Bench in Collector of Customs,
New Delhi vs. Ahmadalieva Nodira (2004) 3 SCC 549 and subsequent decision
of 2-Judge Bench in State of Uttaranchal vs. Rajesh Kuamr Gupta (2007) 1
SCC 355.
Reference was also made of Section 80 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 which reads as under:
“80. Application of the Drugs and Cosmetics Act, 1940 not barred. – The
provisions of this Act or the rules made thereunder shall be in addition
to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of
1940) or the rules made thereunder.
In our opinion, in view of the fact that the effect of Section 80 requires
to be considered, we grant leave and direct the Registry to place the
papers before the Hon’ble the Chief Justice for placing the matter
before a 3-Judge Bench.
4. Each of the remaining matters came to be tagged on to Criminal Appeal
No. 644 of 2007 on the ground that the issue involved in each of these
cases is identical with the issue involved in Criminal Appeal No. 644 of
2007.
5. All these cases pertain to prosecution under the provisions of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred
to as “the Act”). Each one of the accused is alleged to be in possession of
some psychotropic substance mentioned in the Schedule to the Act.
Eventually, the question is whether persons accused of committing an
offence under the Act could be enlarged on bail in view of the stipulations
contained under Section 37 of the Act. In some of these cases, bail was
granted by the concerned High Court and in some cases, bail was rejected.
Aggrieved by such orders, either the State or the accused preferred these
appeals.
6. Section 37[1] of the Act stipulates that all the offences punishable
under the Act shall be cognizable. It further stipulates that:—
(1) persons accused of an offence under Section 19, 24, 27A or persons
accused of offences involved in “commercial quantity”[2] shall not be
released on bail, unless the public prosecutor is given an opportunity to
oppose the application for bail; and
(2) more importantly that unless “the Court is satisfied that there are
reasonable grounds for believing” that the accused is not guilty of such an
offence. Further, the Court is also required to be satisfied that such a
person is not likely to commit any offence while on bail.
In other words, Section 37 departs from the long established principle of
presumption of innocence in favour of an accused person until proved
otherwise.
7. To understand the exact legal quandary involved in these matters, a
brief survey of the relevant provisions of the Act and also an
understanding of the scheme of the Drugs and Cosmetics Act, 1940
(hereinafter referred to as “the 1940 Act”) is necessary.
8. Prior to the Act, three colonial enactments to some extent dealt with
the legislative subject matter of the Act. They are Opium Act, 1857, The
Opium Act, 1878 and the Dangerous Drugs Act, 1930. Subsequently, various
international treaties and protocols etc. dealing with the menace of
narcotic drugs and psychotropic substances came into existence. India has
been a party to those treaties and protocols etc. and incurred several
legal obligations thereunder. Parliament opined that the existing
enactments were inadequate to handle the hazard projected by the narcotic
drugs and psychotropic substances, apart from the inadequacy of the
existing law to enable India to comply with its international legal
obligations. Hence, the Act and all the three old Acts were repealed.
9. The Act deals with narcotic drugs and psychotropic substances. Both
the expressions are defined under the Act. Section 2(xiv) defines
“narcotic drug” as follows:-
““narcotic drug” means coca leaf, cannabis (hemp), opium, poppy straw and
includes all manufactured goods;”
10. The words “coca leaf”, “cannabis”, “opium”, and “poppy straw”
occurring in the definition of narcotic drug are themselves defined under
Sections 2 (vi), 2(iii), 2(xv) and 2(xviii) respectively.
11. Section 8 prohibits the cultivation by any person of any coca plant,
opium poppy or cannabis plant and also prohibits the gathering of any
portion of coca plant. It further stipulates that “no person shall
produce, manufacture, possess, sell, purchase, transport, warehouse, use,
consume” or indulge in either inter-state trade or international trade (all
these prohibited activities hereinafter collectively referred to as
“DEALING IN”) of any narcotic drug or psychotropic substance. Section 8
itself contains certain exceptions to the general prohibition as described
above.[3] The details would be examined later.
12. Sections 9 and 10 authorise the Central Government and the concerned
State Governments to make Rules permitting and regulating the various
aspects of prohibition contained under Section 8.
13. Chapter IV of the Act contains various offences and the punishments
for the said offences.
14. Since all the cases on hand are cases of prosecution for some
contravention of the Act in relation to psychotropic substances, Sections
22 to 24 are relevant for our enquiry.
15. Section 22[4] prescribes the punishments for the violation of various
activities prohibited under Section 8(c). Depending upon the quantity of
the psychotropic substance involved in the case, the punishment prescribed
also varies. If the quantity is small, the punishment extends upto 6
months. The expression “small quantity” is defined under Section
2(xxiiia)[5]. If the quantity is less than “commercial quantity” as
defined under Section 2(viia), but greater than the small quantity, the
punishment may extend upto 10 years of rigorous imprisonment apart from
fine. When the quantity exceeds the commercial quantity, the punishment
extends upto 20 years and carries a fine upto 2 lakhs and for special
reasons even more. Section 23[6] prescribes the punishment for illegal
import to India or export out of India of narcotic drugs and psychotropic
substance. Once again, the punishment varies depending upon the quantity of
the contraband involved in the offence. Examination of the scope of
Section 24 is not necessary in the context of the factual setting of the
cases at hand.
16. Section 35 stipulates that in any prosecution for an offence under
the Act which requires a culpable mental state of the accused, the court
trying offence is mandated to assume the existence of such mental state,
though it is open for the accused to prove that he had no such mental
state.[7]
17. The ambit and scope of section 37 was considered by this court in two
earlier decisions in Union of India v. Thamisharasi, (1995) 4 SCC 190 and
Collector of Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549.
The latter of the two judgments after taking note of the earlier decision
explained the context of section 37 as follows:
“6. As observed by this Court in Union of India v. Thamisharasi clause (b)
of sub-section (1) of Section 37 imposes limitations on granting of bail in
addition to those provided under the Code. The two limitations are: (1) an
opportunity to the Public Prosecutor to oppose the bail application, and
(2) satisfaction of the court that there are reasonable grounds for
believing that the accused is not guilty of such offence and that he is not
likely to commit any offence while on bail.
7. The limitations on granting of bail come in only when the question of
granting bail arises on merits. Apart from the grant of opportunity to the
Public Prosecutor, the other twin conditions which really have relevance so
far as the present accused-respondent is concerned, are: the satisfaction
of the court that there are reasonable grounds for believing that the
accused is not guilty of the alleged offence and that he is not likely to
commit any offence while on bail. The conditions are cumulative and not
alternative. The satisfaction contemplated regarding the accused being not
guilty has to be based on reasonable grounds. The expression “reasonable
grounds” means something more than prima facie grounds. It contemplates
substantial probable causes for believing that the accused is not guilty of
the alleged offence…”
18. Various sets of Rules were framed by the Government of India in
exercise of the power conferred under Sections 9 and 76 of the Act.
Relevant for the purpose of our enquiry is the Narcotic Drugs and
Psychotropic Substances Rules, 1985 (hereinafter referred to as “the 1985
Rules”). Various Chapters and Rules provide for various aspects of the
control and regulation of DEALING IN narcotic drugs and psychotropic
substances. The subject matter of Chapter III of the Rules is opium poppy
cultivation and production of opium and poppy straw, Chapter IV
manufacture, sale and export of opium, Chapter V manufactured drugs[8],
Chapter VI import, export and transshipment of narcotic drugs and
psychotropic substances into or out of India. Rule 53 thereof prohibits
both import and export into or out of India of narcotic drugs and
psychotropic substances specified in Schedule I to the Rules, subject of
course to the provisions of Chapter VIIA. Rule 53A prohibits export of the
narcotic drug or psychotropic substance etc. specified in Schedule-II to
the Rules to certain countries or to the regions specified in the Schedule.
The further details of the chapter are not necessary for our purpose.
19. The subject matter of Chapter VII is psychotropic substances. Rule
64 prohibits each of the activities specified under Section 8(c) of the
Act, DEALING IN all the psychotropic substances specified in Schedule-I of
the Rules.
Rule 64 -
“No person shall manufacture, possess, transport, import inter-State,
export inter-State, sell, purchase, consume or use any of the psychotropic
substances specified in Schedule-I.”
In other words, Rule 64 reiterates the prohibition contained under Section
8(c) of the Act, w.r.t. some of the psychotropic substances mentioned in
Schedule-I to the Act.
20. Whereas Rule 65 stipulates that with reference to the psychotropic
substances other than those specified in Schedule-I to the Rules could be
manufactured subject to the limitation specified under Rule 65. In other
words, notwithstanding the prohibition under Section 8(c), the Central
Government in exercise of its power under Section 9(1)(a)(vi) permits the
manufacture of those psychotropic substances other than specified in
Schedule-I to the Rules.
Rule 65A stipulates that-
“No person shall possess sell, purchase, consume or use any psychotropic
substance except in accordance with the Drugs and Cosmetics Rules, 1945”.
Obviously, the said Rule has application only to the psychotropic
substances other than those specified in Schedule-I of the Rules.
Rule 66 mandates that-
“no person shall possess any psychotropic substance for any of the purposes
covered by the 1945 Rules, unless he is lawfully authorized to possess such
substance for any of the said purposes under these rules.”
The reference to the 1945 Rules admittedly is to the Drugs and Cosmetics
Rules, 1945 (hereinafter referred to as “1945 Rules”) framed under the
Drugs and Cosmetics Act, 1940.
21. It is submitted by Ms. Pinky Anand, learned Additional Solicitor
General that the High Court of Bombay following two earlier decisions, (one
of the Delhi High Court and another of the High Court of Punjab & Haryana),
in its judgment, which is impugned in Special Leave Petition No.5714 of
2006, held thus:
“38. So given, as far as psychotropic substances is the present case are
concerned, operations pertaining to them are permitted because Schedule I
to the Rules do not include them at all. That these substances are
included in the schedule to the act is not of any relevance because one has
to see everything viz., the Act, the Rules and Order made there under
together and in a harmonious manner. It is well settled that the
psychotropic substance is included in the Schedule to the Act but it is not
included in the Schedule I to the Rules, then operations covered by Section
8 cannot be said to be contravening provisions of the Act and, therefore,
punishable. That is how, these provisions have been interpreted by Delhi
High Court and earlier by Punjab and Haryana High Court. Their views have
my respectful concurrence.”
The learned ASG submitted that such a conclusion is wholly unwarranted on
the face of clear language of Section 8(c) of the Act.
22. Shri K.T.S. Tulsi, learned senior counsel appearing for some of the
accused in this batch of matters submitted that possession of psychotropic
substance pursuant to some authorisation under the 1940 Act or Rules made
thereunder coupled with the absence of mention of a particular psychotropic
substance (found in the possession of an accused) in Schedule-I to the
Rules framed under the Act excludes the application of the Act.
23. It is in the background of the above submissions, the legality of the
conclusion recorded by the Bombay High Court that the absence of mention of
a particular psychotropic substance in Schedule-I to the Rules excludes the
application of Section 8, notwithstanding the fact that such a drug is
included in the Schedule to the Act, is required to be decided.
24. Before we examine the correctness of various submissions, we deem it
appropriate to analyze and find out the true scope and ambit of section
8(c). Section 8(c) in no uncertain terms prohibits the DEALING IN any
manner in any narcotic drug or psychotropic substance. However, an
exception to such prohibition is also contained in the said Section.
“Section 8. Prohibition of certain operations – No person shall –
xxx xxx xxx xxx
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 authorisation also in accordance with the
terms and conditions of such licence, permit or authorisation;”
The exception being that DEALING IN any narcotic drug or psychotropic
substance is permitted “in the manner and to the extent provided by the
provisions of this Act or the rules or orders made thereunder”.
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[9] and 10[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.
27. Therefore, we are of the opinion that the conclusion reached by the
various High Courts that prohibition contained under Section 8 is not
attracted in respect to all those psychotropic substances which find a
mention in the Schedule to the Act but not in Schedule-I to the Rules
framed under the Act is untenable.
28. However, it is brought to our notice that conclusion such as the one
reached by the various High Courts as noted above is supported by a
judgment of this Court in Rajesh Kumar Gupta (supra). At para 19, it was
held;
“19. It has not been brought to our notice that the 1985 Act provides for
the manner and extent of possession of the contraband. The rules framed
under Section 9 of the 1985 Act read with Section 76 thereof, however,
provide for both the manner and the extent, inter alia, of production,
manufacture, possession, sale, purchase, transport, etc. of the contraband.
Chapter VI of the 1985 Rules provides for import, export and trans-shipment
of narcotic drugs and psychotropic substances. Rule 53 contains general
prohibition in terms whereof the import and export out of India of the
narcotic drugs and psychotropic substances specified in Schedule I appended
thereto is prohibited. Such prohibition, however, is subject to the other
provisions of the said Chapter. Rule 63 to which our attention has been
drawn specifically prohibits import and export of consignments through a
post [pic]office box but keeping in view the general prohibition contained
in Rule 53 the same must be held to apply only to those drugs and
psychotropic substances which are mentioned in Schedule I of the Rules and
not under the 1985 Act. Similarly, Chapter VII provides for psychotropic
substances. Rule 64 provides for general prohibition. Rules 53 and 64,
thus, contain a genus and other provisions following the same under the
said Chapter are species thereof. This we say in view of the fact that
whereas Rule 64 provides for general prohibition in respect of sale,
purchase, consumption or use of the psychotropic substances specified in
Schedule I, Rule 65 prohibits manufacture of psychotropic substances,
whereas Rule 66 prohibits possession, etc. of psychotropic substances and
Rule 67 prohibits transport thereof. Rule 67-A provides for special
provisions for medical and scientific purposes.”
(emphasis supplied)
29. We are unable to agree with the conclusion (reached in Rajesh Kumar
Gupta’s case) that the prohibition contained in Rule 63[11] of the 1985
Rules is applicable only to those narcotic drugs and psychotropic
substances which are mentioned in Schedule-I to the Rules and not to the
psychotropic substances enumerated in the Schedule to the Act. Such a
conclusion was reached in Rajesh Kumar Gupta’s case on the understanding
that Rule 53 (prohibiting the import into and export out of India of the
narcotic drugs and psychotropic substances specified in Schedule-I to the
Rules) is the source of the authority for such prohibition. Such a
conclusion was drawn from the fact that the other Rules contained in the
Chapter permit import into and export out of India of certain narcotic
drugs and psychotropic substances other than those specified in Schedule-I
to the Rules. Unfortunately, the learned Judges in reaching such a
conclusion ignored the mandate of Section 8(c) which inter alia prohibits
in absolute terms import into and export out of India of any narcotic drug
and psychotropic substance. Rules framed under the Act cannot be understood
to create rights and obligations contrary to those contained in the parent
Act.
30. On examination of the scheme of Rules 53 to 63 which appear in
Chapter VI, we are of the opinion that Rule 53[12] reiterates an aspect of
the larger prohibition contained in Section 8(c) i.e., the prohibition of
import into and export out of India of the narcotic drugs and psychotropic
substances specified in Schedule-I to the Rules. The proviso thereto
however enables the import into and export out of India on the basis of an
import certificate or export authorisation issued under the provisions of
Chapter VI. The subsequent Rules stipulate the conditions subject to which
and the procedure to be followed by which some of the narcotic drugs and
psychotropic substances could be imported into India or exported out of
India. For example, opium is a narcotic drug by definition under Section
2(xiv) of the Act whose export and import is prohibited under Section 8(c).
But Rule 54[13] authorizes the import of opium by Government opium
factory. The construction such as the one placed on Rule 53 in Rajesh
Kumar Gupta’s case would in our opinion be wholly against the settled
canons of statutory interpretation that the subordinate legislation cannot
make stipulation contrary to the parent Act.
31. Chapter VII deals with psychotropic substances. No doubt Rule 64[14]
once again purports to prohibit various operations other than import into
or export out of India in psychotropic substances specified in Schedule-I
for the obvious reason that import and export operations are already
covered by Rule 53. Rule 65 authorizes the manufacture of psychotropic
substances other than those specified in Schedule-I to the Rules subject to
and in accordance with the conditions of a licence granted under the 1945
Rules. The rule also provides for various other incidental matters. Rule
65A prohibits the sale, purchase, consumption or use of any psychotropic
substances except in accordance with the 1945 Rules.
32. Rule 66 prohibits any person from having in possession any
psychotropic substance even for any of the purposes authorized under the
1945 Rules unless the person in possession of such a psychotropic substance
is lawfully authorized to possess such substance for any of the purposes
mentioned under the 1985 Rules. Persons who are authorized under the 1985
Rules, and the quantities of the material such persons are authorized to
possess, are specified under Rule 66(2). They are-
any research institution or a hospital or dispensary maintained or
supported by Government etc. – Rule 66(2).
individuals where such possession is needed for personal medical use
subject of course to the limits and conditions specified – the two provisos
to Rule 66(2).
33. Rule 66 reads as follows —
Rule 66. Possession, etc., of psychotropic substances.—(1) No person shall
possess any psychotropic substance for any of the purposes covered by the
1945 Rules, unless he is lawfully authorized to possess such substance for
any of the said purposes under these rules.
(2) Notwithstanding anything contained in sub-rule (1), any research
institution or a hospital or dispensary maintained or supported by
Government or local body or by charity or voluntary subscription, which is
not authorized to possess any psychotropic substance under the 1945 Rules,
or any person who is not so authorized under the 1945 Rules, may possess a
reasonable quantity of such substance as may be necessary for their genuine
scientific requirements, or both for such period as is deemed necessary by
the said research institution or, as the case may be, the said hospital or
dispensary or person:
Provided that where such psychotropic substance is in possession of an
individual for his personal medical use the quantity thereof shall not
exceed one hundred dosage units at a time:
Provided further than an individual may possess the quantity of exceeding
one hundred dosage units at a time but not exceeding three hundred dosage
units at a time for his personal long term medical use if specifically
prescribed by a Registered Medical Practitioner.
(3) The research institution, hospital and dispensary referred to in sub-
rule (2) shall maintain proper accounts and records in relation to the
purchase and consumption of the psychotropic substance in their possession.
34. On the above analysis of the provisions of chapters VI and VII of the
1985 Rules, we are of the opinion, both these Chapters contain Rules
permitting and regulating the import and export of narcotic drugs and
psychotropic substances other than those specified in the Schedule-I to the
1985 Rules subject to various conditions and procedure stipulated in
Chapter VI. Whereas Chapter VII deals exclusively with various other
aspects of DEALING IN psychotropic substances and the conditions subject to
which such DEALING IN is permitted. We are of the opinion that both Rules
53 and 64 are really in the nature of exception to the general scheme of
Chapters VI and VII respectively containing a list of narcotic drugs and
psychotropic substances which cannot be dealt in any manner notwithstanding
the other provisions of these two chapters. 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’s case in our view is wrongly decided.
35. In view of our conclusion, the complete analysis of the implications
of Section 80[15] of the Act is not really called for in the instant case.
It is only required to be stated that 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.
36. In the light of our above conclusion the correctness of the orders
impugned in all the Criminal Appeals is normally required to be considered
by the Bench of appropriate strength. However, in view of the fact that
most of these matters are old matters [pertaining to years 2006 to 2013],
we deem it appropriate to remit all these matters to the concerned High
Courts for passing of appropriate orders in the light of this judgment.
37. Ordered accordingly. Appeals stand disposed of.
……………………….CJI.
(R.M. Lodha)
………………………….J.
(J. Chelameswar)
……………………..….J.
(A.K. Sikri)
New Delhi;
August 12, 2014
-----------------------
[1] Section 37 - Offences to be cognizable and non-bailable.-(1)
Notwithstanding anything contained in the Code of Criminal Procedure, 1973
(2 of 1974)
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under
section 19 or section 24 or section 27 A and also for offences involving
commercial quantity shall be released on bail or on his own bond unless
(i) the Public Prosecutor has been given an opportunity to oppose
the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court
is satisfied that there are reasonable grounds for believing that he is
not guilty of such offence and that he is not likely to commit any offence
while on bail.
(2) The limitations on granting of bail specified in clause (b) of
sub-section (1) are in addition to the limitations under the Code of
Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in
force, on granting of bail.]
[2] Section 2(viia): “ Commercial quantity”, in relation to narcotic
drugs and psychotropic substances, means any quantity grater than the
quantity specified by the Central Government by notification in the
Official Gazette.
[3] 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 inter-State, export inter-State, import
into India, export from India or tranship 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 thereunder, 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 inter-
State 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:
[4] 22. Punishment for contravention in relation to psychotropic
substances. -Whoever, in contravention of any provision of this Act or any
rule or order made or condition of licence granted thereunder,
manufactures, possesses, sells, purchases, transports, imports inter-
State, exports inter-State, or uses any psychotropic substance shall be
punishable, -
where the contravention involves small quantity, with rigorous
imprisonment for a term which may extend to six months, or with fine which
may extend to ten thousand rupees or with both;
where the contravention involves quantity lesser than commercial
quantity but greater than small quantity, with rigorous imprisonment for a
term which may extend to ten years and with fine which may extend to one
lakh rupees;
where the contravention involves commercial quantity, with rigorous
imprisonment for a term which shall not be less than ten years but which
may extend to twenty years and shall also be liable to fine which shall not
be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the
judgment, impose a fine exceeding two lakh rupees.
[5] Section 2 (xxiiia): “small quantity”, in relation to narcotic drugs
and psychotropic substances, means any quantity lesser than the quantity
specified by the Central Government by notification in the Official
Gazette.
[6] Section 23. Punishment for illegal import in to India, export from
India or transshipment of narcotic drugs and psychotropic
substances.—Whoever, in contravention of any provision of this Act or any
rule or order made or condition of licence or permit granted or certificate
or authorization issued thereunder, imports into India or exports from
India or tranships any narcotic drug or psychotropic substance shall be
punishment,—
(a) where the contravention involves small quantity, with rigorous
imprisonment for a term which may extend to six months, or with fine, which
may extend to ten thousand rupees or with both;
(b) where the contravention involves quantity lesser than
commercial quantity but greater than small quantity, with rigorous
imprisonment for a term which may extend to ten years, and with fine; which
may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with
rigorous imprisonment for a term which shall not be less than ten years but
which may extend to twenty years and shall also be liable to fine which
shall not be less than one lakh rupees but which may extend to two lakh
rupees:
Provided that the court may, for reasons to be recorded in the
judgment, impose a fine exceeding two lakh rupees.
[7] Section 35. Presumption of culpable mental state.-(1) In any
prosecution for an offence under this Act which requires a culpable mental
state of the accused, the Court shall presume the existence of such mental
state but it shall be a defence for the accused to prove the fact that he
had no such mental state with respect to the act charged as an offence in
that prosecution.
Explanation.-In this section "culpable mental state" includes
intention, motive knowledge of a fact and belief in, or reason to believe,
a fact.
(2) For the purpose of this section, a fact is said to be proved only
when the court believes it to exist beyond a reasonable doubt and not
merely when its existence is established by a preponderance of probability.
[8] 2(xi): “manufactured drug” means—
all coca derivatives medicinal cannabis, opium derivatives and poppy
straw concentrate;
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 Gazette, declare not to be a manufactured
drug.
[9] Section 9. Power of Central Government to permit, control and
regulate.—(1) Subject to the provisions of section 8, the Central
Government may, by rules—
(a) permit and regulate—
(i) to (v) x x x x
the manufacture, possession, transport import inter-State, export
inter-State, sale, purchase, consumption or use of psychotropic substances;
x x x x
[10] Section 10. Power of State Government to permit, control and
regulate.—(1) Subject to the provisions of section 8, the State Government
may, by rules—
permit and regulate—
x x x x
[11] 63. Prohibition of import and export of consignments through a post
office box, etc. – The import or export of consignments of any narcotic
drug or psychotropic substance through a post office box or through a bank
is prohibited.
[12] 53. General prohibition – Subject to the other provisions of this
Chapter, the import into and export out of India of the narcotic drugs and
psychotropic substances specified in Schedule I is prohibited.
Provided that nothing in this rule shall apply in case the drug
substance in imported into or exported out of India subject to an import
certificate or export authorisation issued under the provision of this
Chapter and for the purpose mentioned in Chapter VIIA.
[13] 54. Import of opium, etc. – The import of –
(i) opium, concentrate of poppy straw, and
(ii) morphine, codeine, thebaine, and their salts is prohibited
save by the Government Opium Factory;
Provided that nothing in this rule shall apply to import of
morphine, codeine, thebaine and their salts by manufacturers notified by
the Government, for use in manufacture of products to be exported or to
imports of small quantities of morphine, codeine and thebaine and their
salts not exceeding a total of 1 kilogram during a calendar year for
analytical purposes by an importer, after following the procedure under
rule 55 and subject to such conditions as may be specified in the import
certificate issued in Form No. 4A.
[14] Rule 64. General Prohibition.—No person shall manufacture, possess,
transport, import inter-State, export inter-State, sell, purchase, consume
or use any of the psychotropic substances specified in Schedule-I.
[15] Section 80. Application of the Drugs and Cosmetics Act, 1940 not
barred.—The provisions of this Act or the rules made thereunder shall be in
addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940
(23 of 1940) or the rules made thereunder.
-----------------------
26
“Our attention has been invited by the learned counsel to two decisions of
this Court; namely,
a decision of 3-Judge Bench in Collector of Customs,
New Delhi vs. Ahmadalieva Nodira (2004) 3 SCC 549 and
subsequent decision
of 2-Judge Bench in State of Uttaranchal vs. Rajesh Kuamr Gupta (2007) 1
SCC 355.
Reference was also made of Section 80 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 which reads as under:
“80. Application of the Drugs and Cosmetics Act, 1940 not barred. –
The
provisions of this Act or the rules made there under shall be in addition
to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of
1940) or the rules made there under.
In our opinion, in view of the fact that the effect of Section 80 requires
to be considered, we grant leave and direct the Registry to place the
papers before the Hon’ble the Chief Justice for placing the matter
before a 3-Judge Bench.
whether persons accused of committing an
offence under the Act could be enlarged on bail in view of the stipulations
contained under Section 37 of the Act.
Section 37[1] of the Act stipulates that all the offences punishable
under the Act shall be cognizable.
It further stipulates that:—
(1) persons accused of an offence under Section 19, 24, 27A or persons
accused of offences involved in “commercial quantity”[2] shall not be
released on bail, unless the public prosecutor is given an opportunity to
oppose the application for bail; and
(2) more importantly that unless “the Court is satisfied that there are
reasonable grounds for believing” that the accused is not guilty of such an
offence.
Further, the Court is also required to be satisfied that such a
person is not likely to commit any offence while on bail.
In other words, Section 37 departs from the long established principle of
presumption of innocence in favour of an accused person until proved
otherwise.
“6. As observed by this Court in Union of India v. Thamisharasi clause (b)
of sub-section (1) of Section 37 imposes limitations on granting of bail in
addition to those provided under the Code.
The two limitations are: (1) an
opportunity to the Public Prosecutor to oppose the bail application, and
(2) satisfaction of the court that there are reasonable grounds for
believing that the accused is not guilty of such offence and that he is not
likely to commit any offence while on bail.
7. The limitations on granting of bail come in only when the question of
granting bail arises on merits.
Apart from the grant of opportunity to the
Public Prosecutor, the other twin conditions which really have relevance so
far as the present accused-respondent is concerned, are: the satisfaction
of the court that there are reasonable grounds for believing that the
accused is not guilty of the alleged offence and that he is not likely to
commit any offence while on bail.
The conditions are cumulative and not
alternative.
The satisfaction contemplated regarding the accused being not
guilty has to be based on reasonable grounds.
The expression “reasonable
grounds” means something more than prima facie grounds.
It contemplates
substantial probable causes for believing that the accused is not guilty of
the alleged offence…”=
Whereas Rule 65 stipulates that with reference to the psychotropic
substances other than those specified in Schedule-I to the Rules could be
manufactured subject to the limitation specified under Rule 65. In other
words, notwithstanding the prohibition under Section 8(c), the Central
Government in exercise of its power under Section 9(1)(a)(vi) permits the
manufacture of those psychotropic substances other than specified in
Schedule-I to the Rules.=
Therefore, we are of the opinion that the conclusion reached by the
various High Courts that prohibition contained under Section 8 is not
attracted in respect to all those psychotropic substances which find a
mention in the Schedule to the Act but not in Schedule-I to the Rules
framed under the Act is untenable.=
We are unable to agree with the conclusion (reached in Rajesh Kumar
Gupta’s case) that the prohibition contained in Rule 63[11] of the 1985
Rules is applicable only to those narcotic drugs and psychotropic
substances which are mentioned in Schedule-I to the Rules and not to the
psychotropic substances enumerated in the Schedule to the Act. =
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’s case in our view is wrongly decided.
attracted in respect to all those psychotropic substances which find a
mention in the Schedule to the Act but not in Schedule-I to the Rules
framed under the Act is untenable.=
We are unable to agree with the conclusion (reached in Rajesh Kumar
Gupta’s case) that the prohibition contained in Rule 63[11] of the 1985
Rules is applicable only to those narcotic drugs and psychotropic
substances which are mentioned in Schedule-I to the Rules and not to the
psychotropic substances enumerated in the Schedule to the Act. =
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’s case in our view is wrongly decided.
In view of our conclusion, the complete analysis of the implications
of Section 80[15] of the Act is not really called for in the instant case.
It is only required to be stated that 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.
36. In the light of our above conclusion the correctness of the orders
impugned in all the Criminal Appeals is normally required to be considered
by the Bench of appropriate strength.
However, in view of the fact that
most of these matters are old matters [pertaining to years 2006 to 2013],
we deem it appropriate to remit all these matters to the concerned High
Courts for passing of appropriate orders in the light of this judgment.
37. Ordered accordingly. Appeals stand disposed of.
2014 - Aug.Part - http://judis.nic.in/supremecourt/filename=41821of Section 80[15] of the Act is not really called for in the instant case.
It is only required to be stated that 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.
36. In the light of our above conclusion the correctness of the orders
impugned in all the Criminal Appeals is normally required to be considered
by the Bench of appropriate strength.
However, in view of the fact that
most of these matters are old matters [pertaining to years 2006 to 2013],
we deem it appropriate to remit all these matters to the concerned High
Courts for passing of appropriate orders in the light of this judgment.
37. Ordered accordingly. Appeals stand disposed of.
CHIEF JUSTICE, J. CHELAMESWAR, A.K. SIKRI
REPORTABLE
IN THE SUPREME COUR OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 660 OF 2007
Union of India & Another …Appellants
Versus
Sanjeev V. Deshpande …Respondent
WITH
CRIMINAL APPEAL NO. 848 OF 2011
CRIMINAL APPEAL NO. 855 OF 2011
CRIMINAL APPEAL NO. 876 OF 2011
CRIMINAL APPEAL NO.1711 OF 2014
(Arising out of SLP (Crl.) No. 2694 of 2006)
CRIMINAL APPEAL NO.1713 OF 2014
(Arising out of SLP (Crl.) No. 5714 of 2006)
CRIMINAL APPEAL NO.1710 OF 2014
(Arising out of SLP (Crl.) No. 4241 of 2009)
CRIMINAL APPEAL NO.1712 OF 2014
(Arising out of SLP (Crl.) No. 6743 of 2009)
CRIMINAL APPEAL NO.1714 OF 2014
(Arising out of SLP (Crl.) No. 3000 of 2012)
CRIMINAL APPEAL NO.1715 OF 2014
(Arising out of SLP (Crl.) No. 9114 of 2012)
CRIMINAL APPEAL NO.1716 OF 2014
(Arising out of SLP(Crl.) No. 9374 of 2012)
CRIMINAL APPEAL NO.1717 OF 2014
(Arising out of SLP(Crl.) No. 3558 of 2013)
J U D G M E N T
Chelameswar, J.
1. Leave granted in the special leave petitions.
2. This batch of matters is listed pursuant to various orders of this
Court opining that these matters are required to be considered by a larger
Bench.
3. The first of such orders is dated 20th April, 2007 made in Criminal
Appeal No.644 of 2007. By the said order, leave was granted in SLP (Crl.)
No.4976 of 2006. The order reads as follows:-
“Our attention has been invited by the learned counsel to two decisions of
this Court; namely, a decision of 3-Judge Bench in Collector of Customs,
New Delhi vs. Ahmadalieva Nodira (2004) 3 SCC 549 and subsequent decision
of 2-Judge Bench in State of Uttaranchal vs. Rajesh Kuamr Gupta (2007) 1
SCC 355.
Reference was also made of Section 80 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 which reads as under:
“80. Application of the Drugs and Cosmetics Act, 1940 not barred. – The
provisions of this Act or the rules made thereunder shall be in addition
to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of
1940) or the rules made thereunder.
In our opinion, in view of the fact that the effect of Section 80 requires
to be considered, we grant leave and direct the Registry to place the
papers before the Hon’ble the Chief Justice for placing the matter
before a 3-Judge Bench.
4. Each of the remaining matters came to be tagged on to Criminal Appeal
No. 644 of 2007 on the ground that the issue involved in each of these
cases is identical with the issue involved in Criminal Appeal No. 644 of
2007.
5. All these cases pertain to prosecution under the provisions of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred
to as “the Act”). Each one of the accused is alleged to be in possession of
some psychotropic substance mentioned in the Schedule to the Act.
Eventually, the question is whether persons accused of committing an
offence under the Act could be enlarged on bail in view of the stipulations
contained under Section 37 of the Act. In some of these cases, bail was
granted by the concerned High Court and in some cases, bail was rejected.
Aggrieved by such orders, either the State or the accused preferred these
appeals.
6. Section 37[1] of the Act stipulates that all the offences punishable
under the Act shall be cognizable. It further stipulates that:—
(1) persons accused of an offence under Section 19, 24, 27A or persons
accused of offences involved in “commercial quantity”[2] shall not be
released on bail, unless the public prosecutor is given an opportunity to
oppose the application for bail; and
(2) more importantly that unless “the Court is satisfied that there are
reasonable grounds for believing” that the accused is not guilty of such an
offence. Further, the Court is also required to be satisfied that such a
person is not likely to commit any offence while on bail.
In other words, Section 37 departs from the long established principle of
presumption of innocence in favour of an accused person until proved
otherwise.
7. To understand the exact legal quandary involved in these matters, a
brief survey of the relevant provisions of the Act and also an
understanding of the scheme of the Drugs and Cosmetics Act, 1940
(hereinafter referred to as “the 1940 Act”) is necessary.
8. Prior to the Act, three colonial enactments to some extent dealt with
the legislative subject matter of the Act. They are Opium Act, 1857, The
Opium Act, 1878 and the Dangerous Drugs Act, 1930. Subsequently, various
international treaties and protocols etc. dealing with the menace of
narcotic drugs and psychotropic substances came into existence. India has
been a party to those treaties and protocols etc. and incurred several
legal obligations thereunder. Parliament opined that the existing
enactments were inadequate to handle the hazard projected by the narcotic
drugs and psychotropic substances, apart from the inadequacy of the
existing law to enable India to comply with its international legal
obligations. Hence, the Act and all the three old Acts were repealed.
9. The Act deals with narcotic drugs and psychotropic substances. Both
the expressions are defined under the Act. Section 2(xiv) defines
“narcotic drug” as follows:-
““narcotic drug” means coca leaf, cannabis (hemp), opium, poppy straw and
includes all manufactured goods;”
10. The words “coca leaf”, “cannabis”, “opium”, and “poppy straw”
occurring in the definition of narcotic drug are themselves defined under
Sections 2 (vi), 2(iii), 2(xv) and 2(xviii) respectively.
11. Section 8 prohibits the cultivation by any person of any coca plant,
opium poppy or cannabis plant and also prohibits the gathering of any
portion of coca plant. It further stipulates that “no person shall
produce, manufacture, possess, sell, purchase, transport, warehouse, use,
consume” or indulge in either inter-state trade or international trade (all
these prohibited activities hereinafter collectively referred to as
“DEALING IN”) of any narcotic drug or psychotropic substance. Section 8
itself contains certain exceptions to the general prohibition as described
above.[3] The details would be examined later.
12. Sections 9 and 10 authorise the Central Government and the concerned
State Governments to make Rules permitting and regulating the various
aspects of prohibition contained under Section 8.
13. Chapter IV of the Act contains various offences and the punishments
for the said offences.
14. Since all the cases on hand are cases of prosecution for some
contravention of the Act in relation to psychotropic substances, Sections
22 to 24 are relevant for our enquiry.
15. Section 22[4] prescribes the punishments for the violation of various
activities prohibited under Section 8(c). Depending upon the quantity of
the psychotropic substance involved in the case, the punishment prescribed
also varies. If the quantity is small, the punishment extends upto 6
months. The expression “small quantity” is defined under Section
2(xxiiia)[5]. If the quantity is less than “commercial quantity” as
defined under Section 2(viia), but greater than the small quantity, the
punishment may extend upto 10 years of rigorous imprisonment apart from
fine. When the quantity exceeds the commercial quantity, the punishment
extends upto 20 years and carries a fine upto 2 lakhs and for special
reasons even more. Section 23[6] prescribes the punishment for illegal
import to India or export out of India of narcotic drugs and psychotropic
substance. Once again, the punishment varies depending upon the quantity of
the contraband involved in the offence. Examination of the scope of
Section 24 is not necessary in the context of the factual setting of the
cases at hand.
16. Section 35 stipulates that in any prosecution for an offence under
the Act which requires a culpable mental state of the accused, the court
trying offence is mandated to assume the existence of such mental state,
though it is open for the accused to prove that he had no such mental
state.[7]
17. The ambit and scope of section 37 was considered by this court in two
earlier decisions in Union of India v. Thamisharasi, (1995) 4 SCC 190 and
Collector of Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549.
The latter of the two judgments after taking note of the earlier decision
explained the context of section 37 as follows:
“6. As observed by this Court in Union of India v. Thamisharasi clause (b)
of sub-section (1) of Section 37 imposes limitations on granting of bail in
addition to those provided under the Code. The two limitations are: (1) an
opportunity to the Public Prosecutor to oppose the bail application, and
(2) satisfaction of the court that there are reasonable grounds for
believing that the accused is not guilty of such offence and that he is not
likely to commit any offence while on bail.
7. The limitations on granting of bail come in only when the question of
granting bail arises on merits. Apart from the grant of opportunity to the
Public Prosecutor, the other twin conditions which really have relevance so
far as the present accused-respondent is concerned, are: the satisfaction
of the court that there are reasonable grounds for believing that the
accused is not guilty of the alleged offence and that he is not likely to
commit any offence while on bail. The conditions are cumulative and not
alternative. The satisfaction contemplated regarding the accused being not
guilty has to be based on reasonable grounds. The expression “reasonable
grounds” means something more than prima facie grounds. It contemplates
substantial probable causes for believing that the accused is not guilty of
the alleged offence…”
18. Various sets of Rules were framed by the Government of India in
exercise of the power conferred under Sections 9 and 76 of the Act.
Relevant for the purpose of our enquiry is the Narcotic Drugs and
Psychotropic Substances Rules, 1985 (hereinafter referred to as “the 1985
Rules”). Various Chapters and Rules provide for various aspects of the
control and regulation of DEALING IN narcotic drugs and psychotropic
substances. The subject matter of Chapter III of the Rules is opium poppy
cultivation and production of opium and poppy straw, Chapter IV
manufacture, sale and export of opium, Chapter V manufactured drugs[8],
Chapter VI import, export and transshipment of narcotic drugs and
psychotropic substances into or out of India. Rule 53 thereof prohibits
both import and export into or out of India of narcotic drugs and
psychotropic substances specified in Schedule I to the Rules, subject of
course to the provisions of Chapter VIIA. Rule 53A prohibits export of the
narcotic drug or psychotropic substance etc. specified in Schedule-II to
the Rules to certain countries or to the regions specified in the Schedule.
The further details of the chapter are not necessary for our purpose.
19. The subject matter of Chapter VII is psychotropic substances. Rule
64 prohibits each of the activities specified under Section 8(c) of the
Act, DEALING IN all the psychotropic substances specified in Schedule-I of
the Rules.
Rule 64 -
“No person shall manufacture, possess, transport, import inter-State,
export inter-State, sell, purchase, consume or use any of the psychotropic
substances specified in Schedule-I.”
In other words, Rule 64 reiterates the prohibition contained under Section
8(c) of the Act, w.r.t. some of the psychotropic substances mentioned in
Schedule-I to the Act.
20. Whereas Rule 65 stipulates that with reference to the psychotropic
substances other than those specified in Schedule-I to the Rules could be
manufactured subject to the limitation specified under Rule 65. In other
words, notwithstanding the prohibition under Section 8(c), the Central
Government in exercise of its power under Section 9(1)(a)(vi) permits the
manufacture of those psychotropic substances other than specified in
Schedule-I to the Rules.
Rule 65A stipulates that-
“No person shall possess sell, purchase, consume or use any psychotropic
substance except in accordance with the Drugs and Cosmetics Rules, 1945”.
Obviously, the said Rule has application only to the psychotropic
substances other than those specified in Schedule-I of the Rules.
Rule 66 mandates that-
“no person shall possess any psychotropic substance for any of the purposes
covered by the 1945 Rules, unless he is lawfully authorized to possess such
substance for any of the said purposes under these rules.”
The reference to the 1945 Rules admittedly is to the Drugs and Cosmetics
Rules, 1945 (hereinafter referred to as “1945 Rules”) framed under the
Drugs and Cosmetics Act, 1940.
21. It is submitted by Ms. Pinky Anand, learned Additional Solicitor
General that the High Court of Bombay following two earlier decisions, (one
of the Delhi High Court and another of the High Court of Punjab & Haryana),
in its judgment, which is impugned in Special Leave Petition No.5714 of
2006, held thus:
“38. So given, as far as psychotropic substances is the present case are
concerned, operations pertaining to them are permitted because Schedule I
to the Rules do not include them at all. That these substances are
included in the schedule to the act is not of any relevance because one has
to see everything viz., the Act, the Rules and Order made there under
together and in a harmonious manner. It is well settled that the
psychotropic substance is included in the Schedule to the Act but it is not
included in the Schedule I to the Rules, then operations covered by Section
8 cannot be said to be contravening provisions of the Act and, therefore,
punishable. That is how, these provisions have been interpreted by Delhi
High Court and earlier by Punjab and Haryana High Court. Their views have
my respectful concurrence.”
The learned ASG submitted that such a conclusion is wholly unwarranted on
the face of clear language of Section 8(c) of the Act.
22. Shri K.T.S. Tulsi, learned senior counsel appearing for some of the
accused in this batch of matters submitted that possession of psychotropic
substance pursuant to some authorisation under the 1940 Act or Rules made
thereunder coupled with the absence of mention of a particular psychotropic
substance (found in the possession of an accused) in Schedule-I to the
Rules framed under the Act excludes the application of the Act.
23. It is in the background of the above submissions, the legality of the
conclusion recorded by the Bombay High Court that the absence of mention of
a particular psychotropic substance in Schedule-I to the Rules excludes the
application of Section 8, notwithstanding the fact that such a drug is
included in the Schedule to the Act, is required to be decided.
24. Before we examine the correctness of various submissions, we deem it
appropriate to analyze and find out the true scope and ambit of section
8(c). Section 8(c) in no uncertain terms prohibits the DEALING IN any
manner in any narcotic drug or psychotropic substance. However, an
exception to such prohibition is also contained in the said Section.
“Section 8. Prohibition of certain operations – No person shall –
xxx xxx xxx xxx
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 authorisation also in accordance with the
terms and conditions of such licence, permit or authorisation;”
The exception being that DEALING IN any narcotic drug or psychotropic
substance is permitted “in the manner and to the extent provided by the
provisions of this Act or the rules or orders made thereunder”.
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[9] and 10[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.
27. Therefore, we are of the opinion that the conclusion reached by the
various High Courts that prohibition contained under Section 8 is not
attracted in respect to all those psychotropic substances which find a
mention in the Schedule to the Act but not in Schedule-I to the Rules
framed under the Act is untenable.
28. However, it is brought to our notice that conclusion such as the one
reached by the various High Courts as noted above is supported by a
judgment of this Court in Rajesh Kumar Gupta (supra). At para 19, it was
held;
“19. It has not been brought to our notice that the 1985 Act provides for
the manner and extent of possession of the contraband. The rules framed
under Section 9 of the 1985 Act read with Section 76 thereof, however,
provide for both the manner and the extent, inter alia, of production,
manufacture, possession, sale, purchase, transport, etc. of the contraband.
Chapter VI of the 1985 Rules provides for import, export and trans-shipment
of narcotic drugs and psychotropic substances. Rule 53 contains general
prohibition in terms whereof the import and export out of India of the
narcotic drugs and psychotropic substances specified in Schedule I appended
thereto is prohibited. Such prohibition, however, is subject to the other
provisions of the said Chapter. Rule 63 to which our attention has been
drawn specifically prohibits import and export of consignments through a
post [pic]office box but keeping in view the general prohibition contained
in Rule 53 the same must be held to apply only to those drugs and
psychotropic substances which are mentioned in Schedule I of the Rules and
not under the 1985 Act. Similarly, Chapter VII provides for psychotropic
substances. Rule 64 provides for general prohibition. Rules 53 and 64,
thus, contain a genus and other provisions following the same under the
said Chapter are species thereof. This we say in view of the fact that
whereas Rule 64 provides for general prohibition in respect of sale,
purchase, consumption or use of the psychotropic substances specified in
Schedule I, Rule 65 prohibits manufacture of psychotropic substances,
whereas Rule 66 prohibits possession, etc. of psychotropic substances and
Rule 67 prohibits transport thereof. Rule 67-A provides for special
provisions for medical and scientific purposes.”
(emphasis supplied)
29. We are unable to agree with the conclusion (reached in Rajesh Kumar
Gupta’s case) that the prohibition contained in Rule 63[11] of the 1985
Rules is applicable only to those narcotic drugs and psychotropic
substances which are mentioned in Schedule-I to the Rules and not to the
psychotropic substances enumerated in the Schedule to the Act. Such a
conclusion was reached in Rajesh Kumar Gupta’s case on the understanding
that Rule 53 (prohibiting the import into and export out of India of the
narcotic drugs and psychotropic substances specified in Schedule-I to the
Rules) is the source of the authority for such prohibition. Such a
conclusion was drawn from the fact that the other Rules contained in the
Chapter permit import into and export out of India of certain narcotic
drugs and psychotropic substances other than those specified in Schedule-I
to the Rules. Unfortunately, the learned Judges in reaching such a
conclusion ignored the mandate of Section 8(c) which inter alia prohibits
in absolute terms import into and export out of India of any narcotic drug
and psychotropic substance. Rules framed under the Act cannot be understood
to create rights and obligations contrary to those contained in the parent
Act.
30. On examination of the scheme of Rules 53 to 63 which appear in
Chapter VI, we are of the opinion that Rule 53[12] reiterates an aspect of
the larger prohibition contained in Section 8(c) i.e., the prohibition of
import into and export out of India of the narcotic drugs and psychotropic
substances specified in Schedule-I to the Rules. The proviso thereto
however enables the import into and export out of India on the basis of an
import certificate or export authorisation issued under the provisions of
Chapter VI. The subsequent Rules stipulate the conditions subject to which
and the procedure to be followed by which some of the narcotic drugs and
psychotropic substances could be imported into India or exported out of
India. For example, opium is a narcotic drug by definition under Section
2(xiv) of the Act whose export and import is prohibited under Section 8(c).
But Rule 54[13] authorizes the import of opium by Government opium
factory. The construction such as the one placed on Rule 53 in Rajesh
Kumar Gupta’s case would in our opinion be wholly against the settled
canons of statutory interpretation that the subordinate legislation cannot
make stipulation contrary to the parent Act.
31. Chapter VII deals with psychotropic substances. No doubt Rule 64[14]
once again purports to prohibit various operations other than import into
or export out of India in psychotropic substances specified in Schedule-I
for the obvious reason that import and export operations are already
covered by Rule 53. Rule 65 authorizes the manufacture of psychotropic
substances other than those specified in Schedule-I to the Rules subject to
and in accordance with the conditions of a licence granted under the 1945
Rules. The rule also provides for various other incidental matters. Rule
65A prohibits the sale, purchase, consumption or use of any psychotropic
substances except in accordance with the 1945 Rules.
32. Rule 66 prohibits any person from having in possession any
psychotropic substance even for any of the purposes authorized under the
1945 Rules unless the person in possession of such a psychotropic substance
is lawfully authorized to possess such substance for any of the purposes
mentioned under the 1985 Rules. Persons who are authorized under the 1985
Rules, and the quantities of the material such persons are authorized to
possess, are specified under Rule 66(2). They are-
any research institution or a hospital or dispensary maintained or
supported by Government etc. – Rule 66(2).
individuals where such possession is needed for personal medical use
subject of course to the limits and conditions specified – the two provisos
to Rule 66(2).
33. Rule 66 reads as follows —
Rule 66. Possession, etc., of psychotropic substances.—(1) No person shall
possess any psychotropic substance for any of the purposes covered by the
1945 Rules, unless he is lawfully authorized to possess such substance for
any of the said purposes under these rules.
(2) Notwithstanding anything contained in sub-rule (1), any research
institution or a hospital or dispensary maintained or supported by
Government or local body or by charity or voluntary subscription, which is
not authorized to possess any psychotropic substance under the 1945 Rules,
or any person who is not so authorized under the 1945 Rules, may possess a
reasonable quantity of such substance as may be necessary for their genuine
scientific requirements, or both for such period as is deemed necessary by
the said research institution or, as the case may be, the said hospital or
dispensary or person:
Provided that where such psychotropic substance is in possession of an
individual for his personal medical use the quantity thereof shall not
exceed one hundred dosage units at a time:
Provided further than an individual may possess the quantity of exceeding
one hundred dosage units at a time but not exceeding three hundred dosage
units at a time for his personal long term medical use if specifically
prescribed by a Registered Medical Practitioner.
(3) The research institution, hospital and dispensary referred to in sub-
rule (2) shall maintain proper accounts and records in relation to the
purchase and consumption of the psychotropic substance in their possession.
34. On the above analysis of the provisions of chapters VI and VII of the
1985 Rules, we are of the opinion, both these Chapters contain Rules
permitting and regulating the import and export of narcotic drugs and
psychotropic substances other than those specified in the Schedule-I to the
1985 Rules subject to various conditions and procedure stipulated in
Chapter VI. Whereas Chapter VII deals exclusively with various other
aspects of DEALING IN psychotropic substances and the conditions subject to
which such DEALING IN is permitted. We are of the opinion that both Rules
53 and 64 are really in the nature of exception to the general scheme of
Chapters VI and VII respectively containing a list of narcotic drugs and
psychotropic substances which cannot be dealt in any manner notwithstanding
the other provisions of these two chapters. 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’s case in our view is wrongly decided.
35. In view of our conclusion, the complete analysis of the implications
of Section 80[15] of the Act is not really called for in the instant case.
It is only required to be stated that 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.
36. In the light of our above conclusion the correctness of the orders
impugned in all the Criminal Appeals is normally required to be considered
by the Bench of appropriate strength. However, in view of the fact that
most of these matters are old matters [pertaining to years 2006 to 2013],
we deem it appropriate to remit all these matters to the concerned High
Courts for passing of appropriate orders in the light of this judgment.
37. Ordered accordingly. Appeals stand disposed of.
……………………….CJI.
(R.M. Lodha)
………………………….J.
(J. Chelameswar)
……………………..….J.
(A.K. Sikri)
New Delhi;
August 12, 2014
-----------------------
[1] Section 37 - Offences to be cognizable and non-bailable.-(1)
Notwithstanding anything contained in the Code of Criminal Procedure, 1973
(2 of 1974)
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under
section 19 or section 24 or section 27 A and also for offences involving
commercial quantity shall be released on bail or on his own bond unless
(i) the Public Prosecutor has been given an opportunity to oppose
the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court
is satisfied that there are reasonable grounds for believing that he is
not guilty of such offence and that he is not likely to commit any offence
while on bail.
(2) The limitations on granting of bail specified in clause (b) of
sub-section (1) are in addition to the limitations under the Code of
Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in
force, on granting of bail.]
[2] Section 2(viia): “ Commercial quantity”, in relation to narcotic
drugs and psychotropic substances, means any quantity grater than the
quantity specified by the Central Government by notification in the
Official Gazette.
[3] 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 inter-State, export inter-State, import
into India, export from India or tranship 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 thereunder, 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 inter-
State 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:
[4] 22. Punishment for contravention in relation to psychotropic
substances. -Whoever, in contravention of any provision of this Act or any
rule or order made or condition of licence granted thereunder,
manufactures, possesses, sells, purchases, transports, imports inter-
State, exports inter-State, or uses any psychotropic substance shall be
punishable, -
where the contravention involves small quantity, with rigorous
imprisonment for a term which may extend to six months, or with fine which
may extend to ten thousand rupees or with both;
where the contravention involves quantity lesser than commercial
quantity but greater than small quantity, with rigorous imprisonment for a
term which may extend to ten years and with fine which may extend to one
lakh rupees;
where the contravention involves commercial quantity, with rigorous
imprisonment for a term which shall not be less than ten years but which
may extend to twenty years and shall also be liable to fine which shall not
be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the
judgment, impose a fine exceeding two lakh rupees.
[5] Section 2 (xxiiia): “small quantity”, in relation to narcotic drugs
and psychotropic substances, means any quantity lesser than the quantity
specified by the Central Government by notification in the Official
Gazette.
[6] Section 23. Punishment for illegal import in to India, export from
India or transshipment of narcotic drugs and psychotropic
substances.—Whoever, in contravention of any provision of this Act or any
rule or order made or condition of licence or permit granted or certificate
or authorization issued thereunder, imports into India or exports from
India or tranships any narcotic drug or psychotropic substance shall be
punishment,—
(a) where the contravention involves small quantity, with rigorous
imprisonment for a term which may extend to six months, or with fine, which
may extend to ten thousand rupees or with both;
(b) where the contravention involves quantity lesser than
commercial quantity but greater than small quantity, with rigorous
imprisonment for a term which may extend to ten years, and with fine; which
may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with
rigorous imprisonment for a term which shall not be less than ten years but
which may extend to twenty years and shall also be liable to fine which
shall not be less than one lakh rupees but which may extend to two lakh
rupees:
Provided that the court may, for reasons to be recorded in the
judgment, impose a fine exceeding two lakh rupees.
[7] Section 35. Presumption of culpable mental state.-(1) In any
prosecution for an offence under this Act which requires a culpable mental
state of the accused, the Court shall presume the existence of such mental
state but it shall be a defence for the accused to prove the fact that he
had no such mental state with respect to the act charged as an offence in
that prosecution.
Explanation.-In this section "culpable mental state" includes
intention, motive knowledge of a fact and belief in, or reason to believe,
a fact.
(2) For the purpose of this section, a fact is said to be proved only
when the court believes it to exist beyond a reasonable doubt and not
merely when its existence is established by a preponderance of probability.
[8] 2(xi): “manufactured drug” means—
all coca derivatives medicinal cannabis, opium derivatives and poppy
straw concentrate;
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 Gazette, declare not to be a manufactured
drug.
[9] Section 9. Power of Central Government to permit, control and
regulate.—(1) Subject to the provisions of section 8, the Central
Government may, by rules—
(a) permit and regulate—
(i) to (v) x x x x
the manufacture, possession, transport import inter-State, export
inter-State, sale, purchase, consumption or use of psychotropic substances;
x x x x
[10] Section 10. Power of State Government to permit, control and
regulate.—(1) Subject to the provisions of section 8, the State Government
may, by rules—
permit and regulate—
x x x x
[11] 63. Prohibition of import and export of consignments through a post
office box, etc. – The import or export of consignments of any narcotic
drug or psychotropic substance through a post office box or through a bank
is prohibited.
[12] 53. General prohibition – Subject to the other provisions of this
Chapter, the import into and export out of India of the narcotic drugs and
psychotropic substances specified in Schedule I is prohibited.
Provided that nothing in this rule shall apply in case the drug
substance in imported into or exported out of India subject to an import
certificate or export authorisation issued under the provision of this
Chapter and for the purpose mentioned in Chapter VIIA.
[13] 54. Import of opium, etc. – The import of –
(i) opium, concentrate of poppy straw, and
(ii) morphine, codeine, thebaine, and their salts is prohibited
save by the Government Opium Factory;
Provided that nothing in this rule shall apply to import of
morphine, codeine, thebaine and their salts by manufacturers notified by
the Government, for use in manufacture of products to be exported or to
imports of small quantities of morphine, codeine and thebaine and their
salts not exceeding a total of 1 kilogram during a calendar year for
analytical purposes by an importer, after following the procedure under
rule 55 and subject to such conditions as may be specified in the import
certificate issued in Form No. 4A.
[14] Rule 64. General Prohibition.—No person shall manufacture, possess,
transport, import inter-State, export inter-State, sell, purchase, consume
or use any of the psychotropic substances specified in Schedule-I.
[15] Section 80. Application of the Drugs and Cosmetics Act, 1940 not
barred.—The provisions of this Act or the rules made thereunder shall be in
addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940
(23 of 1940) or the rules made thereunder.
-----------------------
26
