DEALING IN NDPS ACT SUBSTANCES IS OFFENCE EVEN IF NOT IN NDPS RULES: SC:

The Supreme Court has clarified that any activity involving a psychotropic substance listed in the Schedule of the NDPS Act constitutes an offence under Section 8(c) of the Act, even if the substance is not included in Schedule I of the NDPS Rules.

This observation came from a bench comprising Justices JB Pardiwala and Manoj Misra, which was hearing a case involving a respondent-accused found in possession of Buprenorphine Hydrochloride—a psychotropic substance included in the NDPS Act's Schedule but absent from the NDPS Rules' Schedule I. Despite this, the trial court had invoked its powers under Section 216 of the Criminal Procedure Code to delete the charges framed under the NDPS Act, although the provision does not grant authority to drop charges on such grounds.

The trial court had relied on the Supreme Court’s earlier decision in State of Uttaranchal v. Rajesh Kumar Gupta (2007) 1 SCC 355, which held that prosecution under the NDPS Act is not sustainable for substances not listed in the NDPS Rules. The High Court upheld the trial court’s reasoning, prompting the Directorate of Revenue Intelligence to approach the Supreme Court, challenging the legality of the deletions and seeking clarity on the applicability of the NDPS Act in such cases.

The key issue for the Court's consideration was “whether the production, manufacture, possession, sale, purchase, transport, warehouse, use, consumption, import inter-State, export inter-State, import into India, export from India or transhipment of a psychotropic substance which is listed under the Schedule to the NDPS Act but not mentioned under Schedule I of the NDPS Rules would constitute an offence under Section 8(c) of the NDPS Act?”

In its affirmative ruling, the judgment authored by Justice JB Pardiwala noted that the impugned decision overlooked the Supreme Court’s earlier verdict in Union of India & Anr. v. Sanjeev V. Deshpande (2014) 13 SCC 1. In that case, the Court had expressly overruled the Rajesh Kumar Gupta judgment, holding that any substance listed in the Schedule of the NDPS Act is liable for prosecution under the Act, irrespective of whether it appears in the NDPS Rules.

“It cannot be said that the dealing in of “Buprenorphine Hydrochloride” would not amount to an offence under Section 8 of the NDPS Act owing to the fact that the said psychotropic substance only finds mention under the Schedule to the NDPS Act and is not listed under Schedule I of the NDPS Rules.”, the court said.

The Court said that for the accused to take the plea that his dealing in the narcotic drug or psychotropic substance does not constitute an offence under Section 8, “it must be proved that the drug or substance was being dealt with (a) for medical or scientific purposes AND; (b) in the manner and to the extent provided by the provisions of the NDPS Act or the NDPS Rules or the orders made thereunder AND; (c) in accordance with the terms and conditions of the licence, permit or authorisation, if any, required under the provisions of the NDPS Act or the NDPS Rules or the orders made thereunder.”

Accordingly, the Court allowed the appeal, affirming that Buprenorphine Hydrochloride—being a psychotropic substance included in the Schedule of the NDPS Act—clearly falls within the scope of the Act. It further held that engaging in activities involving such a substance without proper authorization constitutes an offence under Section 8(c) of the NDPS Act, regardless of its absence from Schedule I of the NDPS Rules.

As a result, the Supreme Court set aside the High Court’s decision and restored the charges under the NDPS Act against the respondent-accused.