Preventive detention and illicit traffic fail where export of psychotropic substances is not clearly prohibited under the NDPS rules.

Preventive detention under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 is available only where the person is engaged in "illicit traffic" within Section 2(e), meaning activity not permitted by the NDPS Act, its rules, or any licence or authorisation. Reading Section 8(c) of the NDPS Act with Rules 53 and 58 of the NDPS Rules, the Court noted that export prohibition under Rule 53 is confined to psychotropic substances in Schedule I, and Rule 58 cannot enlarge that prohibition to all psychotropic substances listed in the Act. As the substances were used for medical purposes and did not fall within Schedule I, the alleged activity was not shown with certainty to be prohibited. The detention orders were therefore invalid and set aside.

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Issues: Whether the preventive detention orders under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 were valid where the alleged export activity concerned psychotropic substances listed in the Narcotic Drugs and Psychotropic Substances Act, 1985 but not in Schedule I to the Narcotic Drugs and Psychotropic Substances Rules, 1985, and whether such activity could be treated as illicit traffic so as to justify detention.

Analysis: The detention power under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 can be exercised only where the person is shown to be engaging in illicit traffic as defined in Section 2(e). The expression excludes activity permitted under the Narcotic Drugs and Psychotropic Substances Act, 1985, the rules made thereunder, or any licence or authorisation. The Court read Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 with Rules 53 and 58 of the Narcotic Drugs and Psychotropic Substances Rules, 1985 and held that Rule 53 prohibits export only of psychotropic substances specified in Schedule I, while Rule 58, being subject to Rule 53, cannot be read to expand that prohibition to all psychotropic substances mentioned in the Schedule to the Act. The Court also treated the earlier Supreme Court decision on the same statutory scheme as binding or at least highly persuasive and concluded that where the substances were used for medical purposes and did not fall within Schedule I to the Rules, the alleged activity could not be said with certainty to be prohibited so as to constitute illicit traffic. Since preventive detention is justified only where the prohibited nature of the activity is clear and undisputable, the detention orders could not stand.

Conclusion: The detention orders were invalid and liable to be set aside, and the petitioners were entitled to release.

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