NDPS liability for psychotropic substances depends on Rule coverage and proved cross-border dealing, not possession alone.

Possession and transportation of Buprenorphine Hydrochloride were held not to attract NDPS penal liability on the facts, because the substance was shown to be outside Schedule I to the NDPS Rules and the record disclosed intra-country dealing rather than proved import or export. The Court treated the matter as falling for consideration under the Drugs and Cosmetics regime instead. On the Section 216 CrPC issue, a Special Court could entertain a fresh application and pass an order in terms of an earlier High Court direction; that was not an impermissible review of the charge order, and the challenge failed.

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Issues: (i) Whether possession and transportation of Buprenorphine Hydrochloride, a psychotropic substance mentioned in the Schedule to the NDPS Act but not in Schedule I to the NDPS Rules, attracted offences under Sections 22 and 29 of the NDPS Act. (ii) Whether the Special Court could discharge the accused while dealing with an application under Section 216 of the Code of Criminal Procedure, 1973.

Issue (i): Whether possession and transportation of Buprenorphine Hydrochloride, a psychotropic substance mentioned in the Schedule to the NDPS Act but not in Schedule I to the NDPS Rules, attracted offences under Sections 22 and 29 of the NDPS Act.

Analysis: Section 8 of the NDPS Act prohibits dealings in narcotic drugs and psychotropic substances except for medical or scientific purposes and in the manner provided by the Act and the Rules. The Court read Chapters VI and VII of the NDPS Rules, 1985 as operating with the general prohibitions in Rules 53 and 64, which were treated as referring to substances in Schedule I to the Rules. On the facts, the material showed intra-country dealing and possession, not proved inter-country import or export. The Court followed the earlier binding view that psychotropic substances not placed in Schedule I to the Rules did not, by that fact alone, attract NDPS penal liability in the circumstances before it, and held that the matter fell to be examined under the Drugs and Cosmetics regime.

Conclusion: The prosecution under Sections 22 and 29 of the NDPS Act was not made out on these facts, and the finding was against the appellant.

Issue (ii): Whether the Special Court could discharge the accused while dealing with an application under Section 216 of the Code of Criminal Procedure, 1973.

Analysis: The earlier order of the High Court had directed the Special Court to consider the Section 216 application afresh and without being influenced by the earlier charge order. The impugned order was passed in that framework. The Court held that the order did not amount to an impermissible review of a charge order, but was a fresh consideration permitted by the prior direction of the High Court. The Court also noted that the accused was not finally discharged from all proceedings, as the matter was sent to the Metropolitan Magistrate for action under the Drugs and Cosmetics law.

Conclusion: The Special Court did not act without jurisdiction in allowing the Section 216 application, and this challenge failed.

Final Conclusion: The petition failed in its challenge to the order under the NDPS Act, and the proceedings were left to continue under the Drugs and Cosmetics framework.

Ratio Decidendi: Where the alleged conduct concerns psychotropic substances not shown to be covered by the NDPS Rules in the manner required by the Act and Rules, and the facts disclose only intra-country dealing rather than proved inter-country import or export, NDPS penal liability is not established; a Section 216 CrPC application may also be entertained when permitted by an earlier judicial direction for fresh consideration.

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