whether - the “manufactured drugs” - the present respondents - should be tried for the violation of provisions of Drugs and Cosmetics Act, 1940 but not under sec.22 of NDPS Act. ?
Apex court held - No - While suspending the sentence pending appeal, the High court made unnecessary observation which was against settled law and as such set aside the order of High Court and held that we are unable to agree on the conclusion reached by the High Court for reasons stated further. First, we note that Section 80 of the N.D.P.S Act, clearly lays down that application of the Drugs and Cosmetics Act is not barred, and provisions of N.D.P.S. Act can be applicable in addition to that of the provisions of the Drugs and Cosmetics Act. The statute further clarifies that the provisions of the N.D.P.S Act are not in derogation of the Drugs and Cosmetics Act, 1940. - Additionally, it is the prerogative of the State to prosecute the offender in accordance with law. In the present case, since the action of the accusedRespondents amounted to a primafacie violation of Section 8 of the N.D.P.S Act, they were charged under Section 22 of the N.D.P.S Act.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1512 OF 2018
(ARISING OUT OF SLP (CRL) NO. 4762 OF 2018)
STATE OF PUNJAB …APPELLANT
VERSUS
RAKESH KUMAR …RESPONDENT
WITH
Criminal Appeal No. 1514 of 2018
(Arising out of SLP (Crl) No.4816 of 2018)
Criminal Appeal No. 1515 of 2018
(Arising out of SLP (Crl) No.4817 of 2018)
Criminal Appeal No. 1517 of 2018
(Arising out of SLP(Crl) No.4869 of 2018)
Criminal Appeal No. 1516 of 2018
(Arising out of SLP (Crl) No.4818 of 2018)
Criminal Appeal No. 1513 of 2018
(Arising out of SLP (Crl) No.4796 of 2018)
Criminal Appeal No. 1518 of 2018
(Arising out of SLP (Crl) No.4881 of 2018)
1
REPORTABLE
Criminal Appeal No. 1521 of 2018
(Arising out of SLP (Crl) No.5032 of 2018)
Criminal Appeal No. 1530 of 2018
(Arising out of SLP (Crl) No.5897 of 2018)
Criminal Appeal No. 1520 of 2018
(Arising out of SLP (Crl) No.4968 of 2018)
Criminal Appeal No. 1526 of 2018
(Arising out of SLP (Crl) No.5893 of 2018)
Criminal Appeal No. 1525 of 2018
(Arising out of SLP (Crl) No.5892 of 2018)
Criminal Appeal No. 1519 of 2018
(Arising out of SLP (Crl) No.4953 of 2018)
Criminal Appeal No. 1528 of 2018
(Arising out of SLP (Crl) No.5895 of 2018)
Criminal Appeal No. 1523 of 2018
(Arising out of SLP (Crl) No.5886 of 2018)
Criminal Appeal No. 1527 of 2018
(Arising out of SLP (Crl) No.5894 of 2018)
Criminal Appeal No. 1524 of 2018
(Arising out of SLP (Crl) No.5891 of 2018)
Criminal Appeal No. 1529 of 2018
(Arising out of SLP (Crl) No.5896 of 2018)
Criminal Appeal No. 1522 of 2018
(Arising out of SLP (Crl) No.5877 of 2018)
2
Criminal Appeal No. 1533 of 2018
(Arising out of SLP (Crl) No.7223 of 2018)
Criminal Appeal No. 1532 of 2018
(Arising out of SLP (Crl) No.7222 of 2018)
Criminal Appeal No. 1536 of 2018
(Arising out of SLP (Crl) No.7228 of 2018)
Criminal Appeal No. 1531 of 2018
(Arising out of SLP (Crl) No.7221 of 2018)
Criminal Appeal No. 1534 of 2018
(Arising out of SLP (Crl) No.7225 of 2018)
And
Criminal Appeal No. 1535 of 2018
(Arising out of SLP (Crl) No.7227 of 2018)
JUDGMENT
N.V. RAMANA, J.
1. Leave granted.
2. The present appeals are filed by the State having been aggrieved
by the common judgment and order dated 29th January, 2018
passed by the High Court of Punjab and Haryana, allowing the
applications for suspension of sentence, preferred by the
accusedrespondents herein under Section 389 Cr.P.C. and
3
directing to release them on bail, while the Appeals are pending
in the High Court.
3. In order to appreciate the merits of theseappeals, brief facts
which have emerged from the case of the prosecution need to be
noted at the outset. In all these appeals, the accusedrespondents
were apprehended with“manufactured drugs” and
convicted by the Trial Court for offences committed under
Section 21 or Section 22 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as
“N.D.P.SAct”). The alleged offences and conviction recorded by
the Trial Court against the respondents are listed below:
S.NO.
CASE
NO.
NAME OF
ACCUSED
RECOVERY CONVICTION
JUDGMENT
BY & DATE
1.
CRAS840
SB2015
Rakesh
Kumar
3500 tablets of
Microlit containing
Diphenoxylate salt
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Special
Judge, Sri
Muktsar
Sahib –
18.11.2014
2.
CRAS227
SB2015
Anwar
Khan @
Soni
3.900 kgs of
intoxicating powder
containing
Dexiropropoxyphen
e salt
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Sangrur –
17.11.2014
3. CRASMonnu
81.76 gms salt
Diphenoxylate
U/s 22 of
NDPS Act
Special
Judge,
4
3148
SB2015
Hydrochloride
– 10 years
RI &
Rs.1.00
lac fine.
Ferozepur –
04.06.2015
4.
CRAS4134
SB2015
Dharmu
Diphenoxylate
powder in
commercial quantity
U/s 22 of
NDPS Act
– 10 years
RI
&Rs.1.00
lac fine.
Judge,
Special
Court,
Ludhiana –
25.05.2015
5.
CRAS5246
SB2015
Gurwinder
Singh
70 gms containing
Diphenoxylate salt
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Ludhiana –
10.11.2015
6.
CRAS71
SB2016
Mohd.
Akhtar @
Soni
19110 mls of
intoxicating liquid
10 capsules of
Parvon Spas, 10
tablets of Euphoria
U/s 22 (a)
& 2(c) of
NDPS Act
– 1 year
RI &
Rs.5000/
fine and
10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Sangrur –
09.12.2015
7.
CRAS323
SB2015
Munish
Kumar 15 Vials of Rexcof
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Bathinda –
09.01.2015
8.
CRAS200
SB2017
Gudawar
Ram @
Gabbu
60 gms intoxicating
powder containing
Diphenoxylate salt
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court, SBS
Nagar –
09.12.2016
9. CRA Baljinder 7500 mls of Corex U/s 22 of Judge,
5
S766
SB2017
Singh @
Banty
syrup containing
Codeine phosphate
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Special
Court,
Sangrur –
20.12.2016
10.
CRAS1413
SB2017
Sukhraj
Kaur @
Raj
120 bottles of
Rexcof containing
Codeine phosphate
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Sangrur –
08.03.2017
11.
CRAS4055
SB2016
Gurpreet
Singh @
Gopi
25 gms Heroin &
250 gms
intoxicating powder
containing
Alprazolam
U/s 21 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Amritsar –
06.09.2016
12.
CRAS2933
SB2016
Salwinder
Singh @
Shinda
320 gms
intoxicating powder
containing
Diphenoxylate
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court, Tarn
Taran –
09.08.2016
13.
CRAS985
SB2017
Karamjit
Singh @
Karma
10 Vials of Rexcof
containing Codeine
Phosphate
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Faridkot –
04.01.2017
14.
CRAS723
SB2016
Mandeep
Singh @
Mani
300 gms
intoxicating powder
containing
Diphenoxylate
Hydrochloride
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Addl.
Sessions
Judge,
Amritsar –
23.12.2015
15. CRAS1531
SB2016
Jagmohan
Singh @
Mithu
100 gms
intoxicating powder
containing
Diphenoxylate
Hydrochloride
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
Judge,
Special
Court,
Amritsar –
10.03.2016
6
lac fine.
16.
CRAS2398
SB2017
Nachhatar
Singh @
Sonu
60 gms intoxicating
powder containing
Diphenoxylate
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court, Tarn
Taran–
16.05.2017
17.
CRAS1972
SB2017
Gaurav
Bajaj (the
other
appellant
Manpreet
Singh)
50 bottles of Rexcof
syrup & 250 tablets
of Carisona from
Gaurav Bajaj 45
bottles of Rexcof
syrup & 200 tablets
of Carisona from
Manpreet Singh
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Fazilka–
17.03.2017
18.
CRAS3921
SB2013
Gurpreet
Singh
19 vials of Rexcof,
1200 tablets of
Pinotil and 450
tablets of
Alprazolam
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Bathinda –
24.10.2013
19.
CRAS1529
SB2017
Jaspal
Singh
12 vials of Rexcof
containing codeine
Phosphate
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Sangrur –
07.03.2017
20.
CRAS750
SB2014
Sanjiv
Kumar &
Paramjit
Singh @
Pamma
1300 tablets
weighing 101, 400
gms from Sanjiv
Kumar; 400 tablets
weighing 31.200
gms from Paramjit
Singh @ Pamma
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
CourtIII,
Ferozepur –
27.01.2014
21.
CRAS4894
SB2015
Akash
Kumar
3500 mls containing
Codeine Phosphate
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Sangrur –
16.10.2015
7
22.
CRAS2574
SB2017
Satnam
Singh
20 vials of Rexcof
containing
Dextropropoxyphene
U/s 22of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Faridkot –
06.07.2017
23.
CRAS1616
SB2017
Amit
Kumar
Mehta
2000 tablets
containing
Diphenoxylate
Hydrochloride
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Patiala –
01.03.2017
24.
CRAS185
SB2017
Gurjant
Singh @
Janta
60 gms intoxicating
powder containing
Diphenoxylate
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Addl.
Sessions
Judge, Tarn
Taran –
20.10.2016
25.
CRMM23054
2017
Gurpreet
Singh @
Tuli
100 tablets marka
Alprazolam in 5
strips, 12 injections
Buprenorphine 2
ml, 2 bottles of
injections Avil 10 ml
& 116 gms
intoxicant powder
U/s
22/61/85
of NDPS
Act
Judge,
Special
Court,
Jalandhar
4. Aggrieved by the Judgment and conviction by the respective Trial
Courts, the accusedrespondents approached the High Court
through various appeals. The accusedrespondents, during the
pendency of the appeals, preferred an application seeking
suspension of sentence. Since a common question of law was
involved in the above appeals, the High Court heard the matters
8
together and passed a common order dated 29.01.2018,
allowing the applications for suspension of sentence preferred
by the accusedrespondents. The High Court observed that
manufactured drugs, be it containing narcotic drugs or
psychotropic substances, if manufactured by a manufacturer,
must be tried, if violation is there, under the Drugs and
Cosmetics Act and not under the NDPS Act, except those in
loose form by way of powder, liquid etc. Dissatisfied by the
above order dated 29.01.2018, the State has preferred the
present appeals.
5. The counsel on behalf of the appellantState, while criticizing the
impugned order passed by the High Court, drew our attention
to the relevant provisions of the N.D.P.S Act and Drugs and
Cosmetics Act, 1940, and submitted that, the N.D.P.S Act, itself
does not bar the application of the Drugs and Cosmetics Act,
1940. Further, the counsel also argued that, the impugned
judgment is in gross violation of the decision rendered in
Inderjeet Singh v. State of Punjab 2014 (3) RCR (Criminal)
953, by the Division Bench of the Punjab and Haryana High
Court. The counsel also relied upon the decision rendered by
9
this Court in Union of India v. Sanjeev V. Deshpande (2014)
13 SCC 1, wherein it was clearly held that dealing in narcotic
drugs and psychotropic substances is permissible only if it is
for medical or scientific purposes. But even the usage for
medical and scientific purposes is not restriction free, as it is
subject to rules under the N.D.P.S Act.
6. On the contrary, the counsel on behalf of the accusedrespondents
has supported the reasoning of the High Court
while stating that it is very farfetched to presume that, any
person who is apprehended with bulk quantity of manufactured
drug, without having a license for the same, has committed an
offence which is liable to be prosecuted under the N.D.P.S Act.
The counsel further submitted that, the High Court was correct
to conclude that, it can be considered as a violation of the
provisions of the Drugs and Cosmetics Act, 1940. Therefore,
there was no error in granting the relief of suspension of
sentence, considering that the appeals are not going to be
adjudicated in the near future.
7. Heard the learned counsel for both the parties.
8. At the outset it is essential to note the objectives of the two
10
legislations before us, i.e., the Drugs and Cosmetics Act, 1940
and the N.D.P.S Act. The Drugs and Cosmetics Act, 1940 was
enacted to specifically prevent substandard drugs and to
maintain high standards of medical treatment. (See Chimanlal
Jagjivandas Sheth v. State of Maharashtra AIR 1963 SC
665) The Drugs and Cosmetics Act,1940 was mainly intended
to curtail the menace of adulteration of drugs and also of
production, manufacture, distribution and sale of spurious and
substandard drugs. On the other hand, the N.D.P.S Act is a
special law enacted by the Parliament with an object to control
and regulate the operations relating to narcotic drugs and
psychotropic substances. After analyzing the objectives of both
the Acts, we can safely conclude that while the Drugs and
Cosmetics Act deals with drugs which are intended to be used
for therapeutic or medicinal usage, on the other hand the
N.D.P.S Act intends to curb and penalize the usage of drugs
which are usedfor intoxication or for getting a stimulant effect.
9. At this juncture, it is also pertinent to note the relevant
provisions under the N.D.P.S Act. Section 8 of the 1985 Act, is
the prohibitory clause whose violation would lead to penal
11
consequence:
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 interState, export interState,
import into India, export from India or
transship 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 there
under, 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 interState 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.
10. Further, Section 21 provides for punishment for contraventions in
12
relation to manufactured drugs and preparations and Section 22
provides for punishment for contraventions in relation to
psychotropic substances. Both the above provisions provide for
the imposition of rigorous imprisonment for a term which shall
not be less than ten years but which may extend to twenty years,
and the imposition of a fine which shall not be less than one lakh
rupees but which may be extended to two lakh rupees, if the
recovered substance amounts to commercial quantity. However,
the proviso appended thereto empowers the Court, with a
discretionary power to impose a fine exceeding two lakh rupees
for reasons to be recorded in the judgment.
11. In the present case, the accusedrespondents were found in bulk
possession of manufactured drugs without any valid
authorization. The counsel on behalf of the appellantState has
extensively stressed that the actions of the accusedRespondents
amounts to clear violation of Section 8 of the N.D.P.S Act as it
clearly prohibits possession of narcotic substances except for
medicinal or scientific purposes. In furtherance of the same, the
counsel on behalf of the appellantState has put emphasis on the
judgment rendered by this court in the case of Union of India
13
vs. Sanjeev V. Deshpande (supra), wherein it was held that:
“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 and 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…”
(emphasis supplied)
12. In the present appeals before us, the trial courts after analyzing
the evidence placed before them, held the accused Respondents
guilty beyond reasonable doubt and convicted them for offences
committed under Section 21 and Section 22 of the N.D.P.S Act.
14
13. The counsels for the accusedrespondents have strongly
supported the judgment of the High Court wherein it was held
that, since the present matters deal with “manufactured drugs”
the present respondents should be tried for the violation of
provisions of Drugs and Cosmetics Act, 1940.
14. However, we are unable to agree on the conclusion reached by the
High Court for reasons stated further. First, we note that Section
80 of the N.D.P.S Act, clearly lays down that application of the
Drugs and Cosmetics Act is not barred, and provisions of
N.D.P.S. Act can be applicable in addition to that of the
provisions of the Drugs and Cosmetics Act. The statute further
clarifies that the provisions of the N.D.P.S Act are not in
derogation of the Drugs and Cosmetics Act, 1940. This Court in
the case of Union of India vs. Sanjeev V. Deshpande (supra),
has held that,
“35. …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.”
15
(emphasis supplied)
15. The aforesaid decision further clarifies that, the N.D.P.S Act,
should not be read in exclusion to Drugs and Cosmetics Act,
1940. Additionally, it is the prerogative of the State to prosecute
the offender in accordance with law. In the present case, since the
action of the accusedRespondents amounted to a primafacie
violation of Section 8 of the N.D.P.S Act, they were charged under
Section 22 of the N.D.P.S Act.
16. In light of above observations, we find that decision rendered by
the High Court holding that the accusedrespondents must be
tried under the Drugs and Cosmetics Act, 1940 instead of the
N.D.P.S Act, as they were found in possession of the
“manufactured drugs”, does not hold good in law. Further, in the
present case, the accusedrespondents had approached the High
Court seeking suspension of sentence. However, in granting the
aforesaid relief, the High Court erroneously made observations on
the merits of the case while the appeals were still pending before
it.
17. Considering the facts and circumstances of the present case and
16
the gravity of offence alleged against the accusedrespondents,
the order of the High Court directing suspension of sentence and
grant of bail is clearly unsustainable in law and the same is liable
to be set aside.
18. Accordingly the impugned order passed by the High Court is
hereby set aside and the concerned authorities are directed to
take the accusedrespondents herein into custody forthwith.
19. Lastly, the counsels for respondents in Appeals arising out of SLP
(Crl) No.4816/2018 and SLP (Crl) No.4817/2018 have specifically
pleaded that the respondents have already undergone a
considerable period under incarceration. In light of the same, we
request the High Court to expedite the hearings and dispose of
the appeals accordingly. It is needless to observe that the
observations made during the course of this order are only for
deciding these appeals.
20. The appeals stand allowed in aforesaid terms. As a sequel
pending applications, if any shall also stand disposed of.
17
……………………………..J.
(N. V. Ramana)
……………………………..J.
(Mohan M. Shantanagoudar)
……………………………..J.
(M.R. Shah)
NEW DELHI,
DECEMBER 03, 2018
18
Apex court held - No - While suspending the sentence pending appeal, the High court made unnecessary observation which was against settled law and as such set aside the order of High Court and held that we are unable to agree on the conclusion reached by the High Court for reasons stated further. First, we note that Section 80 of the N.D.P.S Act, clearly lays down that application of the Drugs and Cosmetics Act is not barred, and provisions of N.D.P.S. Act can be applicable in addition to that of the provisions of the Drugs and Cosmetics Act. The statute further clarifies that the provisions of the N.D.P.S Act are not in derogation of the Drugs and Cosmetics Act, 1940. - Additionally, it is the prerogative of the State to prosecute the offender in accordance with law. In the present case, since the action of the accusedRespondents amounted to a primafacie violation of Section 8 of the N.D.P.S Act, they were charged under Section 22 of the N.D.P.S Act.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1512 OF 2018
(ARISING OUT OF SLP (CRL) NO. 4762 OF 2018)
STATE OF PUNJAB …APPELLANT
VERSUS
RAKESH KUMAR …RESPONDENT
WITH
Criminal Appeal No. 1514 of 2018
(Arising out of SLP (Crl) No.4816 of 2018)
Criminal Appeal No. 1515 of 2018
(Arising out of SLP (Crl) No.4817 of 2018)
Criminal Appeal No. 1517 of 2018
(Arising out of SLP(Crl) No.4869 of 2018)
Criminal Appeal No. 1516 of 2018
(Arising out of SLP (Crl) No.4818 of 2018)
Criminal Appeal No. 1513 of 2018
(Arising out of SLP (Crl) No.4796 of 2018)
Criminal Appeal No. 1518 of 2018
(Arising out of SLP (Crl) No.4881 of 2018)
1
REPORTABLE
Criminal Appeal No. 1521 of 2018
(Arising out of SLP (Crl) No.5032 of 2018)
Criminal Appeal No. 1530 of 2018
(Arising out of SLP (Crl) No.5897 of 2018)
Criminal Appeal No. 1520 of 2018
(Arising out of SLP (Crl) No.4968 of 2018)
Criminal Appeal No. 1526 of 2018
(Arising out of SLP (Crl) No.5893 of 2018)
Criminal Appeal No. 1525 of 2018
(Arising out of SLP (Crl) No.5892 of 2018)
Criminal Appeal No. 1519 of 2018
(Arising out of SLP (Crl) No.4953 of 2018)
Criminal Appeal No. 1528 of 2018
(Arising out of SLP (Crl) No.5895 of 2018)
Criminal Appeal No. 1523 of 2018
(Arising out of SLP (Crl) No.5886 of 2018)
Criminal Appeal No. 1527 of 2018
(Arising out of SLP (Crl) No.5894 of 2018)
Criminal Appeal No. 1524 of 2018
(Arising out of SLP (Crl) No.5891 of 2018)
Criminal Appeal No. 1529 of 2018
(Arising out of SLP (Crl) No.5896 of 2018)
Criminal Appeal No. 1522 of 2018
(Arising out of SLP (Crl) No.5877 of 2018)
2
Criminal Appeal No. 1533 of 2018
(Arising out of SLP (Crl) No.7223 of 2018)
Criminal Appeal No. 1532 of 2018
(Arising out of SLP (Crl) No.7222 of 2018)
Criminal Appeal No. 1536 of 2018
(Arising out of SLP (Crl) No.7228 of 2018)
Criminal Appeal No. 1531 of 2018
(Arising out of SLP (Crl) No.7221 of 2018)
Criminal Appeal No. 1534 of 2018
(Arising out of SLP (Crl) No.7225 of 2018)
And
Criminal Appeal No. 1535 of 2018
(Arising out of SLP (Crl) No.7227 of 2018)
JUDGMENT
N.V. RAMANA, J.
1. Leave granted.
2. The present appeals are filed by the State having been aggrieved
by the common judgment and order dated 29th January, 2018
passed by the High Court of Punjab and Haryana, allowing the
applications for suspension of sentence, preferred by the
accusedrespondents herein under Section 389 Cr.P.C. and
3
directing to release them on bail, while the Appeals are pending
in the High Court.
3. In order to appreciate the merits of theseappeals, brief facts
which have emerged from the case of the prosecution need to be
noted at the outset. In all these appeals, the accusedrespondents
were apprehended with“manufactured drugs” and
convicted by the Trial Court for offences committed under
Section 21 or Section 22 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as
“N.D.P.SAct”). The alleged offences and conviction recorded by
the Trial Court against the respondents are listed below:
S.NO.
CASE
NO.
NAME OF
ACCUSED
RECOVERY CONVICTION
JUDGMENT
BY & DATE
1.
CRAS840
SB2015
Rakesh
Kumar
3500 tablets of
Microlit containing
Diphenoxylate salt
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Special
Judge, Sri
Muktsar
Sahib –
18.11.2014
2.
CRAS227
SB2015
Anwar
Khan @
Soni
3.900 kgs of
intoxicating powder
containing
Dexiropropoxyphen
e salt
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Sangrur –
17.11.2014
3. CRASMonnu
81.76 gms salt
Diphenoxylate
U/s 22 of
NDPS Act
Special
Judge,
4
3148
SB2015
Hydrochloride
– 10 years
RI &
Rs.1.00
lac fine.
Ferozepur –
04.06.2015
4.
CRAS4134
SB2015
Dharmu
Diphenoxylate
powder in
commercial quantity
U/s 22 of
NDPS Act
– 10 years
RI
&Rs.1.00
lac fine.
Judge,
Special
Court,
Ludhiana –
25.05.2015
5.
CRAS5246
SB2015
Gurwinder
Singh
70 gms containing
Diphenoxylate salt
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Ludhiana –
10.11.2015
6.
CRAS71
SB2016
Mohd.
Akhtar @
Soni
19110 mls of
intoxicating liquid
10 capsules of
Parvon Spas, 10
tablets of Euphoria
U/s 22 (a)
& 2(c) of
NDPS Act
– 1 year
RI &
Rs.5000/
fine and
10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Sangrur –
09.12.2015
7.
CRAS323
SB2015
Munish
Kumar 15 Vials of Rexcof
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Bathinda –
09.01.2015
8.
CRAS200
SB2017
Gudawar
Ram @
Gabbu
60 gms intoxicating
powder containing
Diphenoxylate salt
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court, SBS
Nagar –
09.12.2016
9. CRA Baljinder 7500 mls of Corex U/s 22 of Judge,
5
S766
SB2017
Singh @
Banty
syrup containing
Codeine phosphate
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Special
Court,
Sangrur –
20.12.2016
10.
CRAS1413
SB2017
Sukhraj
Kaur @
Raj
120 bottles of
Rexcof containing
Codeine phosphate
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Sangrur –
08.03.2017
11.
CRAS4055
SB2016
Gurpreet
Singh @
Gopi
25 gms Heroin &
250 gms
intoxicating powder
containing
Alprazolam
U/s 21 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Amritsar –
06.09.2016
12.
CRAS2933
SB2016
Salwinder
Singh @
Shinda
320 gms
intoxicating powder
containing
Diphenoxylate
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court, Tarn
Taran –
09.08.2016
13.
CRAS985
SB2017
Karamjit
Singh @
Karma
10 Vials of Rexcof
containing Codeine
Phosphate
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Faridkot –
04.01.2017
14.
CRAS723
SB2016
Mandeep
Singh @
Mani
300 gms
intoxicating powder
containing
Diphenoxylate
Hydrochloride
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Addl.
Sessions
Judge,
Amritsar –
23.12.2015
15. CRAS1531
SB2016
Jagmohan
Singh @
Mithu
100 gms
intoxicating powder
containing
Diphenoxylate
Hydrochloride
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
Judge,
Special
Court,
Amritsar –
10.03.2016
6
lac fine.
16.
CRAS2398
SB2017
Nachhatar
Singh @
Sonu
60 gms intoxicating
powder containing
Diphenoxylate
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court, Tarn
Taran–
16.05.2017
17.
CRAS1972
SB2017
Gaurav
Bajaj (the
other
appellant
Manpreet
Singh)
50 bottles of Rexcof
syrup & 250 tablets
of Carisona from
Gaurav Bajaj 45
bottles of Rexcof
syrup & 200 tablets
of Carisona from
Manpreet Singh
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Fazilka–
17.03.2017
18.
CRAS3921
SB2013
Gurpreet
Singh
19 vials of Rexcof,
1200 tablets of
Pinotil and 450
tablets of
Alprazolam
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Bathinda –
24.10.2013
19.
CRAS1529
SB2017
Jaspal
Singh
12 vials of Rexcof
containing codeine
Phosphate
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Sangrur –
07.03.2017
20.
CRAS750
SB2014
Sanjiv
Kumar &
Paramjit
Singh @
Pamma
1300 tablets
weighing 101, 400
gms from Sanjiv
Kumar; 400 tablets
weighing 31.200
gms from Paramjit
Singh @ Pamma
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
CourtIII,
Ferozepur –
27.01.2014
21.
CRAS4894
SB2015
Akash
Kumar
3500 mls containing
Codeine Phosphate
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Sangrur –
16.10.2015
7
22.
CRAS2574
SB2017
Satnam
Singh
20 vials of Rexcof
containing
Dextropropoxyphene
U/s 22of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Faridkot –
06.07.2017
23.
CRAS1616
SB2017
Amit
Kumar
Mehta
2000 tablets
containing
Diphenoxylate
Hydrochloride
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Judge,
Special
Court,
Patiala –
01.03.2017
24.
CRAS185
SB2017
Gurjant
Singh @
Janta
60 gms intoxicating
powder containing
Diphenoxylate
U/s 22 of
NDPS Act
– 10 years
RI &
Rs.1.00
lac fine.
Addl.
Sessions
Judge, Tarn
Taran –
20.10.2016
25.
CRMM23054
2017
Gurpreet
Singh @
Tuli
100 tablets marka
Alprazolam in 5
strips, 12 injections
Buprenorphine 2
ml, 2 bottles of
injections Avil 10 ml
& 116 gms
intoxicant powder
U/s
22/61/85
of NDPS
Act
Judge,
Special
Court,
Jalandhar
4. Aggrieved by the Judgment and conviction by the respective Trial
Courts, the accusedrespondents approached the High Court
through various appeals. The accusedrespondents, during the
pendency of the appeals, preferred an application seeking
suspension of sentence. Since a common question of law was
involved in the above appeals, the High Court heard the matters
8
together and passed a common order dated 29.01.2018,
allowing the applications for suspension of sentence preferred
by the accusedrespondents. The High Court observed that
manufactured drugs, be it containing narcotic drugs or
psychotropic substances, if manufactured by a manufacturer,
must be tried, if violation is there, under the Drugs and
Cosmetics Act and not under the NDPS Act, except those in
loose form by way of powder, liquid etc. Dissatisfied by the
above order dated 29.01.2018, the State has preferred the
present appeals.
5. The counsel on behalf of the appellantState, while criticizing the
impugned order passed by the High Court, drew our attention
to the relevant provisions of the N.D.P.S Act and Drugs and
Cosmetics Act, 1940, and submitted that, the N.D.P.S Act, itself
does not bar the application of the Drugs and Cosmetics Act,
1940. Further, the counsel also argued that, the impugned
judgment is in gross violation of the decision rendered in
Inderjeet Singh v. State of Punjab 2014 (3) RCR (Criminal)
953, by the Division Bench of the Punjab and Haryana High
Court. The counsel also relied upon the decision rendered by
9
this Court in Union of India v. Sanjeev V. Deshpande (2014)
13 SCC 1, wherein it was clearly held that dealing in narcotic
drugs and psychotropic substances is permissible only if it is
for medical or scientific purposes. But even the usage for
medical and scientific purposes is not restriction free, as it is
subject to rules under the N.D.P.S Act.
6. On the contrary, the counsel on behalf of the accusedrespondents
has supported the reasoning of the High Court
while stating that it is very farfetched to presume that, any
person who is apprehended with bulk quantity of manufactured
drug, without having a license for the same, has committed an
offence which is liable to be prosecuted under the N.D.P.S Act.
The counsel further submitted that, the High Court was correct
to conclude that, it can be considered as a violation of the
provisions of the Drugs and Cosmetics Act, 1940. Therefore,
there was no error in granting the relief of suspension of
sentence, considering that the appeals are not going to be
adjudicated in the near future.
7. Heard the learned counsel for both the parties.
8. At the outset it is essential to note the objectives of the two
10
legislations before us, i.e., the Drugs and Cosmetics Act, 1940
and the N.D.P.S Act. The Drugs and Cosmetics Act, 1940 was
enacted to specifically prevent substandard drugs and to
maintain high standards of medical treatment. (See Chimanlal
Jagjivandas Sheth v. State of Maharashtra AIR 1963 SC
665) The Drugs and Cosmetics Act,1940 was mainly intended
to curtail the menace of adulteration of drugs and also of
production, manufacture, distribution and sale of spurious and
substandard drugs. On the other hand, the N.D.P.S Act is a
special law enacted by the Parliament with an object to control
and regulate the operations relating to narcotic drugs and
psychotropic substances. After analyzing the objectives of both
the Acts, we can safely conclude that while the Drugs and
Cosmetics Act deals with drugs which are intended to be used
for therapeutic or medicinal usage, on the other hand the
N.D.P.S Act intends to curb and penalize the usage of drugs
which are usedfor intoxication or for getting a stimulant effect.
9. At this juncture, it is also pertinent to note the relevant
provisions under the N.D.P.S Act. Section 8 of the 1985 Act, is
the prohibitory clause whose violation would lead to penal
11
consequence:
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 interState, export interState,
import into India, export from India or
transship 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 there
under, 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 interState 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.
10. Further, Section 21 provides for punishment for contraventions in
12
relation to manufactured drugs and preparations and Section 22
provides for punishment for contraventions in relation to
psychotropic substances. Both the above provisions provide for
the imposition of rigorous imprisonment for a term which shall
not be less than ten years but which may extend to twenty years,
and the imposition of a fine which shall not be less than one lakh
rupees but which may be extended to two lakh rupees, if the
recovered substance amounts to commercial quantity. However,
the proviso appended thereto empowers the Court, with a
discretionary power to impose a fine exceeding two lakh rupees
for reasons to be recorded in the judgment.
11. In the present case, the accusedrespondents were found in bulk
possession of manufactured drugs without any valid
authorization. The counsel on behalf of the appellantState has
extensively stressed that the actions of the accusedRespondents
amounts to clear violation of Section 8 of the N.D.P.S Act as it
clearly prohibits possession of narcotic substances except for
medicinal or scientific purposes. In furtherance of the same, the
counsel on behalf of the appellantState has put emphasis on the
judgment rendered by this court in the case of Union of India
13
vs. Sanjeev V. Deshpande (supra), wherein it was held that:
“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 and 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…”
(emphasis supplied)
12. In the present appeals before us, the trial courts after analyzing
the evidence placed before them, held the accused Respondents
guilty beyond reasonable doubt and convicted them for offences
committed under Section 21 and Section 22 of the N.D.P.S Act.
14
13. The counsels for the accusedrespondents have strongly
supported the judgment of the High Court wherein it was held
that, since the present matters deal with “manufactured drugs”
the present respondents should be tried for the violation of
provisions of Drugs and Cosmetics Act, 1940.
14. However, we are unable to agree on the conclusion reached by the
High Court for reasons stated further. First, we note that Section
80 of the N.D.P.S Act, clearly lays down that application of the
Drugs and Cosmetics Act is not barred, and provisions of
N.D.P.S. Act can be applicable in addition to that of the
provisions of the Drugs and Cosmetics Act. The statute further
clarifies that the provisions of the N.D.P.S Act are not in
derogation of the Drugs and Cosmetics Act, 1940. This Court in
the case of Union of India vs. Sanjeev V. Deshpande (supra),
has held that,
“35. …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.”
15
(emphasis supplied)
15. The aforesaid decision further clarifies that, the N.D.P.S Act,
should not be read in exclusion to Drugs and Cosmetics Act,
1940. Additionally, it is the prerogative of the State to prosecute
the offender in accordance with law. In the present case, since the
action of the accusedRespondents amounted to a primafacie
violation of Section 8 of the N.D.P.S Act, they were charged under
Section 22 of the N.D.P.S Act.
16. In light of above observations, we find that decision rendered by
the High Court holding that the accusedrespondents must be
tried under the Drugs and Cosmetics Act, 1940 instead of the
N.D.P.S Act, as they were found in possession of the
“manufactured drugs”, does not hold good in law. Further, in the
present case, the accusedrespondents had approached the High
Court seeking suspension of sentence. However, in granting the
aforesaid relief, the High Court erroneously made observations on
the merits of the case while the appeals were still pending before
it.
17. Considering the facts and circumstances of the present case and
16
the gravity of offence alleged against the accusedrespondents,
the order of the High Court directing suspension of sentence and
grant of bail is clearly unsustainable in law and the same is liable
to be set aside.
18. Accordingly the impugned order passed by the High Court is
hereby set aside and the concerned authorities are directed to
take the accusedrespondents herein into custody forthwith.
19. Lastly, the counsels for respondents in Appeals arising out of SLP
(Crl) No.4816/2018 and SLP (Crl) No.4817/2018 have specifically
pleaded that the respondents have already undergone a
considerable period under incarceration. In light of the same, we
request the High Court to expedite the hearings and dispose of
the appeals accordingly. It is needless to observe that the
observations made during the course of this order are only for
deciding these appeals.
20. The appeals stand allowed in aforesaid terms. As a sequel
pending applications, if any shall also stand disposed of.
17
……………………………..J.
(N. V. Ramana)
……………………………..J.
(Mohan M. Shantanagoudar)
……………………………..J.
(M.R. Shah)
NEW DELHI,
DECEMBER 03, 2018
18
