# Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors

- **Citation:** 2025 INSC 498
- **Court:** Supreme Court of India
- **Decided:** 2025-04-17
- **Case number:** Criminal Appeal No. 1319 of 2013
- **Bench:** J.B. Pardiwala, Manoj Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/directorate-of-revenue-intelligence-v-raj-kumar-arora-ors-38560
- **Pages:** 150

## Headnote

Issue arose whether an offence u/s.8(c) of the NDPS Act could
be said to have been made out when an accused "deals with"
psychotropic substances mentioned in the Schedule to the NDPS
Act but not figuring in Schedule I of the Rules thereunder; whether
the decision in Sanjeev V. Deshpande's case must operate with
prospective effect; and that once, charge has been framed by a
competent court u/s.228 CrPC, can an accused thereafter seek
for discharge/deletion of a particular offence from the charge
u/s.216 CrPC.
Headnotes†
Narcotic Drugs and Psychotropic Substances Act, 1985 -
s.8 - Narcotic Drugs and Psychotropic Substances Rules,
1985 - rr.53, 64, Chapter VIIA - Drugs and Cosmetics Act,
1940 - Dealing in psychotropic substances-"Buprenorphine
Hydrochloride" that appear in the Schedule to the NDPS Act
but do not figure in Schedule I to the NDPS Rules, if constitutes
an offence u/s.8(c):
Held: It cannot be said that the dealing in of "Buprenorphine
Hydrochloride" would not amount to an offence u/s.8 owing to the
fact that the said psychotropic substance only finds mention under
the Schedule to the NDPS Act and is not listed under Schedule I
of the NDPS Rules - There exists nothing to indicate that rr.53
and 64 of the NDPS Rules respectively, are the governing rules
in their respective Chapters, more so, when the language of the
other rules in Chapters VI and VII respectively, are clear about
their application to the substances mentioned under the Schedule
to the Act as well - All the psychotropic substances mentioned
under the Schedule to the Act have potential grave and harmful
consequences to the individual and the society at large, when
* Author
836
[2025] 4 S.C.R.
Supreme Court Reports
abused - Some psychotropic substances mentioned under the
Schedule to the NDPS Act are also mentioned under the D&C
Act and the rules framed thereunder - This is only because
those substances while capable of being abused for their inherent
properties could also be used in the field of medicine - However,
the mere mention of certain psychotropic substances under the
D&C regime would not take them away from the purview of the
NDPS Act, if they are also mentioned under the Schedule to the
NDPS Act - Courts below erred in holding that the offence under
the provisions of the NDPS Act is not made out - Trial courts could
also not have discharged/deleted the charge under the NDPS
Act framed against the accused persons while disposing of an
application u/s.216 - This is something not permissible within the
criminal procedure and the High Court unfortunately failed to take
notice of this aspect - Accused persons were not acquitted but
discharged - There arises no occasion to hold them technically
guilty of the offences under the provisions of the NDPS Act that
they were charged with - Accused to be tried by the concerned
Special Judge, NDPS, in accordance with law - Impugned orders
passed by the High Court set aside. [Paras 156, 157, 161-163]
Narcotic Drugs and Psychotropic Substances Act, 1985 -
Narcotic Drugs and Psychotropic Substances Rules, 1985 -
Drugs and Cosmetics Rules, 1940 - NDPS Act and Rules, if
applicable in addition to the 1940 Act:
Held: s.80 states that the provisions of NDPS Act or Rules made
thereunder shall be in addition to, and not in derogation of D&C
Act and Rules made thereunder - Thus, when an offence under
D&C Act is made out or can potentially be made out, accused can
also be charged or prosecuted for an offence under NDPS Act or
vice-versa - Due to operation of r.65, a violation of the condition
of licence under the D&C Act read with its Rules would ipso facto
tantamount to a violation of NDPS Act read with its Rules - To say
that no offence would be made out in a case where an accused
deals with a substance mentioned only under Schedule to the Act,
would have the consequence of rendering entire Schedule to the Act
useless, unnecessary and nugatory - NDPS Rules do not absolutely
prohibit dealing in of substances mentioned u

## Text

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[2025] 4 S.C.R. 835 : 2025 INSC 498
Directorate of Revenue Intelligence
v.
Raj Kumar Arora & Ors.
(Criminal Appeal No. 1319 of 2013)
17 April 2025
[J.B. Pardiwala* and Manoj Misra, JJ.]
Issue for Consideration
Issue arose whether an offence u/s.8(c) of the NDPS Act could
be said to have been made out when an accused "deals with"
psychotropic substances mentioned in the Schedule to the NDPS
Act but not figuring in Schedule I of the Rules thereunder; whether
the decision in Sanjeev V. Deshpande's case must operate with
prospective effect; and that once, charge has been framed by a
competent court u/s.228 CrPC, can an accused thereafter seek
for discharge/deletion of a particular offence from the charge
u/s.216 CrPC.
Headnotes†
Narcotic Drugs and Psychotropic Substances Act, 1985 -
s.8 - Narcotic Drugs and Psychotropic Substances Rules,
1985 - rr.53, 64, Chapter VIIA - Drugs and Cosmetics Act,
1940 - Dealing in psychotropic substances-"Buprenorphine
Hydrochloride" that appear in the Schedule to the NDPS Act
but do not figure in Schedule I to the NDPS Rules, if constitutes
an offence u/s.8(c):
Held: It cannot be said that the dealing in of "Buprenorphine
Hydrochloride" would not amount to an offence u/s.8 owing to the
fact that the said psychotropic substance only finds mention under
the Schedule to the NDPS Act and is not listed under Schedule I
of the NDPS Rules - There exists nothing to indicate that rr.53
and 64 of the NDPS Rules respectively, are the governing rules
in their respective Chapters, more so, when the language of the
other rules in Chapters VI and VII respectively, are clear about
their application to the substances mentioned under the Schedule
to the Act as well - All the psychotropic substances mentioned
under the Schedule to the Act have potential grave and harmful
consequences to the individual and the society at large, when
* Author
836
[2025] 4 S.C.R.
Supreme Court Reports
abused - Some psychotropic substances mentioned under the
Schedule to the NDPS Act are also mentioned under the D&C
Act and the rules framed thereunder - This is only because
those substances while capable of being abused for their inherent
properties could also be used in the field of medicine - However,
the mere mention of certain psychotropic substances under the
D&C regime would not take them away from the purview of the
NDPS Act, if they are also mentioned under the Schedule to the
NDPS Act - Courts below erred in holding that the offence under
the provisions of the NDPS Act is not made out - Trial courts could
also not have discharged/deleted the charge under the NDPS
Act framed against the accused persons while disposing of an
application u/s.216 - This is something not permissible within the
criminal procedure and the High Court unfortunately failed to take
notice of this aspect - Accused persons were not acquitted but
discharged - There arises no occasion to hold them technically
guilty of the offences under the provisions of the NDPS Act that
they were charged with - Accused to be tried by the concerned
Special Judge, NDPS, in accordance with law - Impugned orders
passed by the High Court set aside. [Paras 156, 157, 161-163]
Narcotic Drugs and Psychotropic Substances Act, 1985 -
Narcotic Drugs and Psychotropic Substances Rules, 1985 -
Drugs and Cosmetics Rules, 1940 - NDPS Act and Rules, if
applicable in addition to the 1940 Act:
Held: s.80 states that the provisions of NDPS Act or Rules made
thereunder shall be in addition to, and not in derogation of D&C
Act and Rules made thereunder - Thus, when an offence under
D&C Act is made out or can potentially be made out, accused can
also be charged or prosecuted for an offence under NDPS Act or
vice-versa - Due to operation of r.65, a violation of the condition
of licence under the D&C Act read with its Rules would ipso facto
tantamount to a violation of NDPS Act read with its Rules - To say
that no offence would be made out in a case where an accused
deals with a substance mentioned only under Schedule to the Act,
would have the consequence of rendering entire Schedule to the Act
useless, unnecessary and nugatory - NDPS Rules do not absolutely
prohibit dealing in of substances mentioned under Schedule I of
Rules - Substances in Schedule I of Rules can also be dealt with
but only for the limited purposes mentioned under Chapter VIIA - All
other substances mentioned only under Schedule to the Act can
[2025] 4 S.C.R.
837
Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.
be possessed for the purposes mentioned under Chapter VIIA and
also for the purposes falling under the broad umbrella of "medical
or scientific purposes" as mentioned u/s.8 NDPS Act. [Para 90]
Narcotic Drugs and Psychotropic Substances Act, 1985 -
s.8 - Narcotic Drugs and Psychotropic Substances Rules,
1985 - Treatment of substances mentioned in Schedule to the
Act and not in Schedule I of the Rules - Sanjeev Deshpande's
judgment holding that s.8 is applicable to all the psychotropic
substances which are mentioned in Schedule to the Act but not
in Schedule-I to the Rules framed under the Act - If Sanjeev
Deshpande's judgment operative with prospective effect:
Held: Decision in Sanjeev V. Deshpande's case must be given
retrospective effect - No reason to declare the interpretation given to
s.8 of the NDPS Act and the relevant NDPS Rules, by the decision
in Sanjeev V. Deshpande's case, as prospectively applicable - On
the other hand, in order to meet the ends of justice and with a view
to ensure that public interest is safeguarded and to give effect to
the salutary object behind the enactment of the NDPS Act, the
decision must necessarily be retrospectively applicable - This
Court in Sanjeev V. Deshpande's case, perhaps, did not think fit
to confine or restrict its interpretation of s.8 to future cases only -
Whilst overruling Rajesh Kumar Gupta's case, it deliberately chose
not to discuss the doctrine of prospective overruling let alone resort
to it - This conspicuous silence in Sanjeev Deshpande's case
as regards the prospective or retrospective effect of overruling
Rajesh Kumar Gupta's case has to be borne in mind and given
due deference - As a natural corollary to the aforesaid, no reason
why there should be deviation from the default rule of retrospectivity
and instead, resort to the doctrine of prospective overruling - Thus,
pending cases, if any, which were instituted before the decision of
this Court in Sanjeev V. Deshpande's case would also be governed
by the law as clarified by it. [Paras 158-160]
Doctrines - Doctrine of prospective overruling - Meaning,
object and scope - Applicability or non-applicability of doctrine
of prospective overruling in criminal matters, so far:
Held: Default rule is that overruling of a decision generally operates
retrospectively - This is because a judgement which interprets
a statute or provision declares the meaning of the statute as it
should have been construed from the date of its enactment and
838
[2025] 4 S.C.R.
Supreme Court Reports
what has been declared to be the law of the land must be held to
have always been the law of the land - If a subsequent decision
alters or overrules the earlier one, it cannot be said to have made
a new law - Correct principle of law is just discovered and applied
retrospectively - Since resorting to the doctrine of "prospective
overruling" is an exception to the normal rule that a judgement or
decision applies retrospectively and to the general rule of doctrine
of precedent, an express declaration by the court that its decision
is prospectively applicable is absolutely necessary - Prospectivity
as a concept cannot be considered to be inhered in situations
since the intention to attribute prospectivity to a decision must
be limpid and clear - Doctrine is being applied with a view to
not unsettle everything that was undertaken in the past either on
account of an existing law/rule or due to the decision of a court -
Prospective overruling is an accepted doctrine as an extended
facet of stare decisis - Doctrine involves giving effect to the new
law laid down from a prospective date, ordinarily from the date
of the judgement of the overruling decision - There are several
factors or considerations which may weigh with the court before the
doctrine of prospective overruling is applied - Ambit of the doctrine
is co-extensive with the equity of a situation - If the doctrine of
prospective overruling is applied, pending cases would not be
affected by the new declaration of law - In the realm of criminal
law, the question of prospective or retrospective declaration of a
law/decision has been comparatively rare. [Paras 118, 122]
Constitution of India - Art.20(3) - Consideration u/Art.20(3), on
the retrospective applicability of Sanjeev Deshpande judgment:
Held: Retrospective application of the dictum in Sanjeev V.
Deshpande's case overruling the decision in Rajesh Kumar
Gupta's case, would not give rise to any implications as regards
the rights of the accused persons u/Art.20(1) - This is because
while overruling the decision in Rajesh Kumar Gupta's case, the
decision in Sanjeev Deshpande's case has only clarified the law
as it stood from its inception and given true effect to the meaning
assigned to the relevant provisions of the NDPS Act and the Rules
thereunder, by the lawmakers - Same cannot be construed as
creating a new offence - Additionally, the overruling of a decision
cannot be equated to the enactment of an ex-post facto law,
especially when the interpretation given to the statute/provision in
the overruling decision is not a novel and unreasonably expansive
[2025] 4 S.C.R.
839
Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.
interpretation of the provision in question such that it was completely
unforseeable - It cannot be said that the indiscriminate dealing in
of substances which are only mentioned under the Schedule to the
NDPS Act and absent under Schedule I of the NDPS Rules, was
indubitably legal and allowed by the legislation, prior to the decision
in Sanjeev Deshpande's case - Thus, giving retrospective effect to
the decision in Sanjeev V. Deshpande's case would be necessary
considering the facts and circumstances of the matters. [Para 159]
Code of Criminal Procedure, 1973 - ss.216, 228 - Alteration
of charge - Meaning - Once, charge framed by a competent
court u/s.228, if accused can seek for discharge/deletion of
a particular offence from the charge u/s.216 :
Held: s.216 provides the Court with the power to alter a charge and
add to a charge - To alter a charge would be to vary an existing
charge and make a different charge - Nowhere, does the provision
expressly or by necessary implication lead to an inference that a
charge could be deleted altogether - Once charges have been
framed by the trial court in exercise of the powers u/s.228, the
accused cannot thereafter be discharged, be it through an exercise
of the powers u/s.227 or 216 - Language of s.216 provides only
for the addition and alteration of charges and not for the deletion or
discharge of an accused - If the Legislature intended to empower trial
court with the power to delete a charge at that stage, the same would
have been expressly and unambiguously stated - Thus, at such a
stage of the trial, the accused must necessarily either be convicted
or acquitted of the charges that were so framed against him.
[Paras 149-151, 154]
Case Law Cited
State of Uttranchal v. Rajesh Kumar Gupta [2006] Supp. 8 SCR
843 : (2007) 1 SCC 355; Union of India & Anr. v. Sanjeev V.
Deshpande [2014] 11 SCR 981 : 2014 13 SCC 1; K. Ravi v. State
of Tamil Nadu & Anr. [2024] 8 SCR 700 : (2024) SCC OnLine SC
2283; State of Rajasthan v. Udai Lal [2008] 8 SCR 38 : (2008)
11 SCC 408; Hira Singh v. Union of India [2020] 4 SCR 1130 :
(2020) 20 SCC 272; Hussain v. State of Kerala [1999] Supp. 4
SCR 189 : (2000) 8 SCC 139; Ouseph alias Thankachan v. State
of Kerala (2004) 4 SCC 446; Ravindran alias John and Anr. v.
Superintendent of Customs (2007) 6 SCC 410; Sanjay Kumar
Kedia v. Narcotics Control Bureau and Another [2007] 12 SCR
840
[2025] 4 S.C.R.
Supreme Court Reports
812 : (2008) 2 SCC 294; D. Ramakrishnan v. Intelligence Officer,
Narcotic Control Bureau [2009] 11 SCR 442 : (2009) 14 SCC 603;
State of Punjab v. Rakesh Kumar [2018] 14 SCR 415 : (2019)
2 SCC 466; Sarwan Kumar and Another v. Madan Lal Aggarwal
[2003] 1 SCR 918 : (2003) 4 SCC 147; Gian Devi Anand v. Jeevan
Kumar and Others [1985] Supp. 1 SCR 1 : (1985) 2 SCC 683;
Assistant Commissioner, Income Tax, Rajkot v. Saurashtra Kutch
Stick Exchange Limited [2008] 13 SCR 421 : (2008) 14 SCC 171;
P.V. George and Others v. State of Kerala and Others [2007] 1
SCR 1198 : (2007) 3 SCC 557; B.A. Linga Reddy and Others v.
Karnataka State Transport Authority and Others [2014] 13 SCR
205 : (2015) 4 SCC 515; Manoj Parihar and Others v. State of
Jammu and Kashmir and Others [2022] 7 SCR 611 : (2022) 14
SCC 72; I.C. Golak Nath and Others v. State of Punjab and Another
[1967] 2 SCR 762 : AIR 1967 SC 1643; Baburam v. C.C.Jacob
and Others (1999) 3 SCC 362; Somaiya Organics (India) Ltd. and
Another v. State of U.P. and Another [2001] 3 SCR 33 : (2001) 5
SCC 519; Synthetics and Chemicals Ltd. and Others v. State of
U.P. and Others [1989] Supp. 1 SCR 623 : (1990) 1 SCC 109;
Kailash Chand Sharma v. State of Rajasthan and Others [2002]
Supp. 1 SCR 317 : (2002) 6 SCC 562; Managing Director, ECIL,
Hyderabad and Others v. B. Karunakar and Others [1993] Supp. 2
SCR 576 : (1993) 4 SCC 727; Union of India and Others v. Mohd.
Ramzan Khan [1990] Supp. 3 SCR 248 : (1991) 1 SCC 588; K.
Madhava Reddy and Others v. State of Andhra Pradesh and Others
[2014] 7 SCR 348 : (2014) 6 SCC 537; Justice Chandrashekaraiah
(Retired) v. Janekere C. Krishna and Others [2013] 3 SCR 987 :
(2013) 3 SCC 117; Union of India v. I.P. Awasthi and Others (2015)
17 SCC 340; Union of India and Another v. Ganpati Dealcom
Private Limited [2024] 10 SCR 2183 : (2023) 1 SCC 315; Saurabh
Chaudri (Dr.) and Others v. Union of India and Others [2004] Supp.
2 SCR 611 : (2004) 5 SCC 618; Saurabh Chaudri v. Union of India
[2003] Supp. 5 SCR 152 : (2003) 11 SCC 146; Jarnail Singh and
Others v. Lachhmi Narain Gupta and Others [2022] 19 SCR 711 :
(2022) 10 SCC 595; M. Nagaraj v. Union of India [2006] Supp. 7
SCR 336 : (2006) 8 SCC 212; M.A. Murthy v. State of Karnataka
[2003] Supp. 3 SCR 327 : (2003) 7 SCC 517; State of Kerala and
Others v. Alassery Mohammed and Others [1978] 2 SCR 820 :
(1978) 2 SCC 386; Rajal Das Guru Namal Pamanani v. State of
Maharashtra [1975] 2 SCR 886 : (1975) 3 SCC 375; Rao Shiv
Bahadur Singh and Another v. State of Vindhya Pradesh [1953]
[2025] 4 S.C.R.
841
Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.
1 SCR 1188 : (1953) 2 SCC 111; Soni Devrajbhai Babubhai v.
State of Gujarat [1991] 3 SCR 812 : (1991) 4 SCC 298; Central
Bureau of Investigation v. R.R. Kishore [2023] 13 SCR 1 : (2023)
15 SCC 339; Subramanian Swamy v. Director, Central Bureau
of Investigation and Another [2014] 6 SCR 873 : (2014) 8 SCC
682; Food Inspector, Calicut Corporation v. Cherukattil Gopalan
and Another [1971] Supp. 1 SCR 721 : (1971) 2 SCC 322; Anant
Prakash Sinha v. State of Haryana and Another [2016] 2 SCR
128 : (2016) 6 SCC 105; Nallapareddy Sridhar Reddy v. State
of A.P. [2020] 1 SCR 1116 : (2020) 12 SCC 467; Sohan Lal and
Others v. State of Rajasthan [1990] 3 SCR 809 : (1990) 4 SCC
580 - referred to.
Dev Narain v. State of U.P. and Another, 2023 SCC OnLine All
3216; Rajesh Sharma v. Union of India, 2009 SCC OnLine Del
1330; Rajender Gupta v. State, 2005 SCC OnLine Del 873;
Deepak Kumar Suthar v. State of Rajasthan (1999) 2 Raj LR 692
(FB) - referred to.
Victor Linkletter v. Victor G. Walker, 1965 SCC OnLine US SC
126; Center School Township v. State, 150 Ind. 168; Mapp v. Ohio,
367 U.S. 643 - referred to.
Books and Periodicals Cited
P. Ramanatha Aiyar's Advanced Law Lexicon; Law Lexicon
(6th ed.) - referred to.
List of Acts
Narcotic Drugs and Psychotropic Substances Act, 1985; Drugs and
Cosmetics Act, 1940; Narcotic Drugs and Psychotropic Substances
Rules, 1985 ; Drugs and Cosmetics Rules, 1940; Code of Criminal
Procedure, 1973.
List of Keywords
Buprenorphine Hydrochloride; Injectable preparation of
Buprenorphine; Psychotropic substance; Alteration of charge;
Bunogesic injection; Discharge/deletion of charge; Health and
welfare of mankind; Public health and social welfare; Convention
on Psychotropic Substances, 1971; United Nation Convention on
Psychotropic Substances, 1971; Single Convention on Narcotic
Drugs, 1961; United Nations Convention against the Illicit Traffic in
842
[2025] 4 S.C.R.
Supreme Court Reports
Narcotic Drugs and Psychotropic Substances of 1988; Very limited
medical purposes; Medical or scientific purpose; Nova Constitutio
Futuris Forman Imponere Debet, Non Praeteritis; Prospective
overruling; Blackstonian rule; Extended facet of stare decisis;
International Convention on Drugs and Psychotropic Substances;
International Drug Control Convention framework; Decision in
Sanjeev V. Deshpande's case; Prospective effect; Technically guilty;
Treatment of Psychotropic substances mentioned in Schedule to
the NDPS Act and not in Schedule I of the NDPS Rules; If Sanjeev
Deshpande's judgment operative with prospective effect; Rule of
retrospectivity; Doctrine of precedent; Retrospective applicability
of Sanjeev Deshpande judgment.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1319 of 2013
From the Judgment and Order dated 13.07.2011 of the High Court
of Delhi at New Delhi in CRRP No. 494 of 2007
With
Criminal Appeal No. 272 of 2014
Appearances for Parties
Advs. for the Appellant:
Vikramjit Banerjee, ASG, Ms. Ruchi Kohli, Sr. Adv., Prashant Rawat,
Ms. Srishti Mishra, S.K. Tyagi, G.S. Makkar, B. Krishna Prasad,
Ms. Ruchi Kohli, Vatsal Joshi, Anuj Srinivas Udupa, Sarthak Karol,
Arvind Kumar Sharma.
Advs. for the Respondents:
Yash Pal Dhingra, Deepak Goel, Jitendra Bharti, Ms. Alka Goyal.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
For the convenience of exposition, this judgment is divided into the
following parts:
[2025] 4 S.C.R.
843
Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.
* Ed. Note: Pagination as per the original Judgment.
INDEX*
A.
FACTUAL MATRIX .............................................................
3
i.
Criminal Appeal No. 1319 of 2013 .............................
3
ii. Criminal Appeal No. 272 of 2014 ...............................
16
B.
SUBMISSIONS OF THE PARTIES .....................................
22
i.
Submissions on behalf of the Appellant(s) .............
22
a. Criminal Appeal No. 1319 of 2013 ..........................
22
b. Criminal Appeal No. 272 of 2014 ...........................
26
ii. Submissions on behalf of the Respondent(s) ......
27
C.
ISSUES FOR DETERMINATION........................................
29
D.
ANALYSIS...........................................................................
30
i.
Whether an offence under Section 8(c) could be said
to have been made out when an accused "deals with"
psychotropic substances mentioned in the Schedule
to the NDPS Act but not figuring in Schedule I of the
Rules thereunder. ........................................................
30
a. Object of the NDPS Act and the United Nations
Convention on Psychotropic Substances, 1971 ...
30
b. Relevant Statutory Provisions of the NDPS Act and
its Rules ......................................................
40
c. Analysing the treatment of substances mentioned
in the Schedule to the Act and not in Schedule I of
the Rules by previous decisions of this Court. ........
58
d. The provisions of the NDPS Act and its Rules are
"in addition to" the D&C Act and the Rules made
thereunder. ................................................................
87
ii. Whether the decision in Sanjeev V. Deshpande
(supra) should operate with prospective effect? .......
100
a. An overruling decision generally operates
retrospectively ........................................................
100
844
[2025] 4 S.C.R.
Supreme Court Reports
b. The intention to make the decision prospectively
applicable or the application of the doctrine of
"prospective overruling" must be express and clear ...
105
c. The doctrine of "Prospective Overruling" and factors
which may lead to the application thereof. .............
109
d. It would be open for another bench to subsequently
decide on the application of the doctrine of
prospective overruling to a past decision. ................
131
e. Applicability or non-applicability of doctrine of
prospective overruling in criminal matters, so far. ......
137
f.
Article 20(1) considerations on the retrospective
applicability of the decision in Sanjeev V. Deshpande
(supra). ....................................................................
149
iii. The scope of Section 216 of the CrPC ......................
172
a. What is the meaning of the expression "alter"
occurring in Section 216 CrPC. ...............................
177
b. Whether charges could be deleted or the accused
be discharged under Section 216 CrPC ....................
180
E.
CONCLUSION .....................................................................
185
1.
Since the issues raised in both the captioned appeals are the same,
those were taken up for hearing analogously and are being disposed
by this common judgment and order.
2.
These appeals arise from the Judgment and Order passed by the High
Court of Delhi in Criminal Revision Petition No. 494 of 2007 dated
13.07.2011 and in Criminal M.C. No. 2335 of 2010 dated 20.03.2013
respectively, by which the High Court rejected the respective petitions
having found no legal infirmity in the orders passed by the Trial
Court arriving at the conclusion that no offence under Sections 8,
22 and 29, and under Section 8(c) and 22(c) of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (hereinafter, the "NDPS
Act"), respectively, could be said to have been made out since the
psychotropic substance in question do not figure in Schedule I of the
[2025] 4 S.C.R.
845
Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.
NDPS Rules, 1985. The Trial Court ultimately transferred the matter
to the court of Metropolitan Magistrate with a direction to proceed
in accordance with the provisions of the Drugs and Cosmetics Act,
1940 (hereinafter, the "D&C Act").
A.
FACTUAL MATRIX
i.
Criminal Appeal No. 1319 of 2013
3.
On 27.09.2003, an officer of the Department of Revenue Intelligence
Headquarter (hereinafter, the "DRI(HQ)") received an information
that several glass ampoules containing the injectable preparation
of Buprenorphine were stored in an office premises located at 198,
Office Complex, Jhandewalan Extn., Cycle Market, New Delhi.
The further information was that the injections had been illegally
manufactured and cleared by M/s. Win Drugs Ltd., Bhiwani Road,
Jind, Haryana and that a few injections along with the raw materials
of Buprenorphine could also be found at that location. Two teams of
DRI(HQ) officers were deputed - one team to undertake the search
of the premises in Delhi and another team who coordinated their
action with the office of Central Excise Commissionerate, Rohtak
(hereinafter, the "CEC") for the purpose of search at the premises
of Win Drugs Ltd. at Jind, Haryana.
4.
On the same day, i.e., 27.09.2003, at around 08:15 pm, the DRI(HQ)
officers visited the premises in Delhi with a search authorisation
under Section 41 of the NDPS Act along with two witnesses. It is
stated that upon entering the premises, Raj Kumar Arora (hereinafter,
"respondent no. 1") who was the proprietor of M/s Kanishka Cargo
Service, was present in the office premises. The DRI(HQ) officers
recovered 25 corrugated card board cartons which contained small
packets, each having ten unlabelled glass ampoules with a water
coloured liquid, along with several sheets of printed labels which read
as "Buprenorphine Hydrochloride". They also recovered one labelled
glass ampoule containing the same coloured liquid from the table
drawer of the respondent no. 1. Upon preparing a detailed inventory,
it was stated that 1 labelled and 40,000 unlabelled glass ampoules
containing Buprenorphine Hydrochloride which is a substance
listed in the Schedule to the NDPS Act were recovered. Since the
respondent no. 1 was unable to provide any permission or licence for
the possession of the recovered glass ampoules, they were seized
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under the provisions of the NDPS Act. The samples were drawn
and the test memo was prepared in the presence of the respondent
no. 1 and the witnesses. On 27.09.2003, i.e., on the same day, the
officers of CEC, Rohtak are said to have seized 23400 injections of
Buprenorphine along with 100 grams of Buprenorphine in its powder
form, from M/s Win Drugs Ltd at Jind, Haryana as well.
5.
In response to the summons issued, the respondent no. 1 appeared
and is said to have made a voluntary statement in writing dated
28.09.2003 which mentioned that during the course of his business
as a customs clearing agent, he came in contact with one Mohd.
Shebar Khan (hereinafter, "respondent no. 2") who handled the
customs clearance of the drugs and medicines on behalf of Devang
Bipin Parekh (hereinafter, "respondent no. 3") of M/s Sarvodiya
Enterprises, Mumbai. The statement further revealed the fact that
the respondents were collectively involved in the illegal manufacture,
storage, transport, sale and purchase of Buprenorphine Hydrochloride
along with one Naresh Mittal of Win Drugs Ltd.
6.
On 28.09.2003, the respondent no. 1 was arrested for the alleged
commission of the offence punishable under Sections 22 and 29 of
the NDPS Act respectively and was remanded to judicial custody.
Since Naresh Mittal of M/s Win Drugs Ltd. had failed to appear
despite repeated summons, a complaint for non-compliance of
summons was filed against him before the Court of ACMM, New
Delhi. The court took cognizance of the alleged offence and also
issued a non-bailable warrant for his arrest.
7.
The respondent no. 2 was summoned and is said to have tendered
a voluntary statement dated 13.11.2004. The respondent no. 2
stated that during the course of his import business, he came in
contact with one person named Mohd. Abdul who showed him three
ampoules of Buprenorphine and enquired whether the respondent no.
2 could procure one lakh ampoules of Buprenorphine manufactured
by Neon Laboratories Ltd. or in the alternative, procure unlabelled
drug ampoules of a similar size and shape having a red ring on the
neck of the ampoules for him. Mohd. Abdul is said to have given an
advance of Rs. 2,50,000. The respondent no. 2, thereafter, contacted
the respondent no. 1 for the purpose of procuring the same and paid
him the advance amount he had received along with three samples
of the drug which he had obtained from Mohd. Abdul. Initially, 2,000
and 10,000 ampoules respectively, were procured and delivered.
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Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.
On 27.09.2003, the respondent no.1 informed the respondent no.2
that another consignment of 40,000 ampoules had been received
by him at his office. When the respondent no.2 tried to contact the
respondent no. 1 at around 09:15 pm, on the same day, he came to
know of the fact that the office premises of respondent no. 1 had been
raided by a government agency. The respondent no. 2 further stated
that upon complete delivery of one lakh ampoules, Mohd. Abdul had
promised to give him an additional amount of Rs. 25,000. In light of
the same, on 13.11.2003, the respondent no. 2 was also arrested for
having committed the offence punishable under Sections 22 and 29
of the NDPS Act respectively and was remanded to judicial custody.
8.
In the meanwhile, the DRI officers of the Mumbai Zonal Unit
visited the premises of M/s Sarvodaya Enterprises, which is run
by the respondent no. 3 and during the search recovered certain
documents in the presence of witnesses. The respondent no. 3 was
then summoned. He gave a voluntary statement dated 03.12.2003
stating that as a part of his business, his company had bought
Buprenorphine in its powder form from M/s Pioneer Agro Industries,
Mumbai and were selling the same to the manufacturers like M/s
Win Drugs Ltd. He further stated that he knew the respondent no. 1
since he used to clear their pharmaceutical import consignments on
a need basis. The respondent no. 3 further stated that he was the
one who had directed the respondent no.1 to contact Naresh Mittal
of M/s Win Drugs Ltd for the purchase of Buprenorphine injections
and that he had also spoken to Naresh Mittal in that regard despite
knowing that the respondent no. 1 did not possess any licence to
deal with the said psychotropic substance. The respondent no. 3 is
also said to have intervened when the consignments were not being
received in time from M/s Win Drugs Ltd and used to get the delivery
to the respondent no. 1 expedited. In the transaction in question
which involved the supply of one lakh ampoules to the respondent
no. 1, the respondent no. 3 was to get Rs. 1 Lakh from M/s Win
Drugs Ltd in addition to some amount from the respondent no.1, for
his involvement. As a result, on 03.12.2003, the respondent no. 3
was also arrested for alleged commission of the offence punishable
under Sections 22 and 29 of the NDPS Act respectively and was
remanded to judicial custody.
9.
The Chemical Examiner of the Central Revenue Control Laboratory,
New Delhi, vide his report dated 20.11.2003 opined that, upon
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chemical analysis conducted by him, the samples were found to be
of Buprenorphine which is a psychotropic substance under the NDPS
Act. It is the case of the appellant that despite their best efforts,
Naresh Mittal of M/s Win Drugs Ltd. could not be summoned and
therefore, it was decided that the prosecution qua him and all other
concerned persons would be considered as and when they would
be available for enquiry.
10. On 25.03.2004, a criminal complaint as regards the offence
punishable under Sections 22 and 29 of the NDPS Act respectively
was filed against the respondents by one Mr. R. Roy (hereinafter, the
"complainant"), an intelligence officer of the Directorate of Revenue
Intelligence, New Delhi, (hereinafter, the "appellant") before the
Special Court for NDPS cases, New Delhi.
11. On 03.02.2005, the Special Court observed that Buprenorphine is
a psychotropic substance as per the Schedule to the NDPS Act
and its commercial quantity is fixed at 20 gms. The test memo as
regards the present seizure indicated that the contents of each of the
ampoules varied between 0.23 mg to 0.34 mg. On a consideration
of the above and the attendant circumstances, including that the
respondent no. 1 did not possess any permission or licence for
dealing in the substance and that all the respondents had conceded
to their involvement in the crime, the Special Judge held that a prima
facie contravention of Section 22 along with a case of conspiracy
under Section 29 of the NDPS Act was made out. The Special Judge
was also prima facie of the view that meticulous examination of the
evidence is not required to be assessed at the stage of framing of
charge and a mere strong suspicion of involvement in the crime is
sufficient. Stating so, charge was directed to be framed. The charge
was formally framed by the Special Judge on 08.02.2005.
12. The respondents applied for bail before the Special Judge and the
same was declined. However, the High Court vide a common Judgment
and Order dated 11.01.2005 granted bail to the respondent no. 3
along with several others. The respondent nos. 1 and 2 respectively,
had also moved the High Court for bail and vide a common Judgment
and Order dated 22.08.2005, the High Court stated that no offence
under the NDPS Act was made out and directed that the respondent
nos. 1 and 2 be released on bail upon furnishing a personal bond
in the sum of Rs. 25,000 with one surety of the like amount to the
[2025] 4 S.C.R.
849
Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.
satisfaction of the concerned trial court. The High Court in its common
Judgement and Order dated 22.08.2005 had framed two questions
of law for the purpose of considering the plea for bail - (a) Whether
Buprenorphine Hydrochloride is a "psychotropic substance" within the
meaning of the NDPS Act?, and (b) If yes, whether Buprenorphine
Hydrochloride is a "psychotropic substance" to which Chapter VII
of the Narcotic Drugs and Psychotropic Substances Rules, 1985
(hereinafter, the "NDPS Rules") apply and to what effect? The first
question was answered in the affirmative, however, on the second
question, it was concluded that since Buprenorphine Hydrochloride
is a psychotropic substance not included under Schedule I of the
NDPS Rules, its manufacture, possession, sale and transport etc.
would neither be prohibited nor regulated by the NDPS Rules and
consequently by the NDPS Act. It was observed that an examination
of Schedule H of the Drugs and Cosmetics Rules, 1940 (hereinafter,
the "D&C Rules") made it clear that Buprenorphine Hydrochloride
was listed therein as a "Prescription Drug" and therefore, the offence
would fall within the rigours of the D&C Act and its Rules.
13. The appellant had preferred a petition for Special Leave to Appeal
against both the orders of the High Court granting bail to the
respondents. Vide order dated 31.03.2006, this Court declined
to interfere with the grant of bail, however, made it clear that the
observations of the High Court that Buprenorphine Hydrochloride
would not be covered under the NDPS Act and that no offence
under the NDPS Act and its rules was made out, would not have
any persuasive effect when the matter would be finally considered
before the Special Judge on merits.
14. The respondents thereafter preferred an application under Section
216 of the Code of Criminal Procedure, 1973 (hereinafter, the "CrPC")
before the Special Judge for amendment/alteration of charge. Before
filing the application under Section 216 CrPC, the respondent no.
3 had filed a Criminal Revision Petition No. 204 of 2005 before the
High Court challenging the order dated 03.02.2005 and 08.02.2005
respectively, which framed charge against the respondents herein.
Vide judgment and order dated 01.08.2006, the High Court disposed
of the petition by observing that the application under Section 216
pending before the Special Judge shall be decided first before the
matter is proceeded with. The relevant observations are as follows:
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"This revision petition is directed against the order on
charge dated 03.02.2005 as well as the formal charge
framed on 08.02.2005 against the petitioner under Section
29 of the Narcotic Drugs And Psychotropic Substances
Act, 1985. Mr. Sud, the learned Senior counsel for the
petitioner has pointed out that the main issue involved in
the present case is whether Buprenorphine Hydrochloride
I.P. would be a psychotropic substance covered under the
NDPS Act and Rules. According to Mr. Sud, this matter has
been considered by this Court in the case of R Gupta v
State: 123 (2005) DLT 55. This decision came after the
order which is impugned in the present proceedings
was passed. Mr. Sud, also submitted that he had moved
an application under Section 216 of Code of Criminal
Procedure 1973 for amendment/alteration of the charge.
That application, I have been told, is pending before the
learned Additional Sessions Judge.
In these circumstances it would be appropriate if the
application under Section 216 of the Code of Criminal
Procedure which has been filed by the petitioner is disposed
of taking into account, inter alia, the said decision of this
Court. While disposing of the application under Section
216 Code of Criminal Procedure, the learned Sessions
Courts shall not be influenced by what has been held in the
impugned order and shall consider the entire issue afresh.
The Learned Sessions Court shall decide the application
under Section 216 Code of Criminal Procedure first before
proceeding further with the matter. It is, of course, goes
without saying that not only the counsel for the petitioner
but the counsel for the State shall also be heard on all
submissions. In view of above, terms this revision petition
stands disposed of."
(Emphasis supplied)
15. The Special Judge heard the submissions of the counsel with respect
to the Section 216 CrPC application made before him. Vide order
dated 30.11.2006, the Special Judge echoed the reasoning adopted
by the High Court while granting bail to the respondents and also
arrived at the conclusion that the respondents are to be tried under
[2025] 4 S.C.R.
851
Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.
the D&C Act and the Rules thereunder. The Special Judge allowed
the application filed under Section 216 CrPC taking the view that
since the offence under the NDPS Act was not made out, the file be
sent to the ACMM, New Delhi for further proceedings. The relevant
observations are as thus:
"12. I have heard the Ld. Counsel for the parties at length.
The Ld. Counsel for the DRI also has not made out any
other arguments which have been already dealt in the
Hon'ble High Court in passing the judgment. Moreso, the
accused has placed on record one order passed by Sh.
N. K. Gupta, Special Judge in the matter, Manoj Kumar
Gupta Versus State of NCT and said discussed above,
since offence is made out under D & C Act which are triable
by Ld. MM and not by the Court of Sessions. Accordingly,
the matter was remanded back to Ld. ACMM to dealt with
the judgment in accordance with law. Since Ld. Counsel
for the DRI could not place any other material on record
to come out with a different view that Buprenorphine
Hydrochloride is covered under NDPS Act or Rule. It
remains a substance to be dealt under D & C Act or Rules,
Previous case of Manoj Kumar Gupta Versus State of
NCT with similar allegations were ordered to be charged
and tried under D & C Act and Rules and so it has to face
the same consequences and not to be dealt differently.
13. In these circumstance of the matter, I allow the
application of the accused U/s 216 of Cr. P.C. and say
that the charge framed by my Ld. Predecessor dated
08.02.2005 for the offence under NDPS Act is not made
out against them and it has to be a case under D & C
Act which are triable by Ld. MM and not by the court of
Sessions. Accordingly, let the file be sent to Ld. ACCMM,
New Delhi for further proceeding in accordance with law by
herself or by assigning it to any other court of competent
jurisdiction. The accused is directed to appear before Ld.
ACMM on 11.12.2006. The file be sent immediately to
the said Court."
16. Aggrieved by the aforesaid order dated 30.11.2006 passed by the
Special Judge, the appellant preferred Criminal Revision Petition No.
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494 of 2007. Vide judgment and order dated 13.07.2011, the High
Court dismissed the revision petition. The High Court followed the
rationale adopted by this Court in State of Uttranchal v. Rajesh
Kumar Gupta reported in (2007) 1 SCC 355 wherein it was observed
that if any particular drug does not find mention in the Schedule I
appended to the NDPS Rules, then the provisions of Section 8 of the
NDPS Act would have no application whatsoever. On the question
of the respondents being discharged under Section 216 CrPC, the
High Court remarked that it would not be right to say that the Special
Judge had discharged the respondents. The matter was accordingly
remitted to the Metropolitan Magistrate to proceed in accordance
with the provisions of the D&C Act.