TaxTMI 
TaxTMI 
2014 (8) TMI 695
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....ira (2004) 3 SCC 549 and subsequent decision of 2-Judge Bench in State of Uttaranchal vs. Rajesh Kuamr Gupta (2007) 1 SCC 355. Reference was also made of Section 80 of the Narcotic Drugs and Psychotropic Substances Act, 1985 which reads as under: "80. Application of the Drugs and Cosmetics Act, 1940 not barred. - The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder. In our opinion, in view of the fact that the effect of Section 80 requires to be considered, we grant leave and direct the Registry to place the papers before the Hon'ble the Chief Justice for placing the matter before a 3-Judge Bench. 4. Each of the remaining matters came to be tagged on to Criminal Appeal No. 644 of 2007 on the ground that the issue involved in each of these cases is identical with the issue involved in Criminal Appeal No. 644 of 2007. 5. All these cases pertain to prosecution under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act"). Each one of the accused is alleged to be in possession of ....
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....principle of presumption of innocence in favour of an accused person until proved otherwise. 7. To understand the exact legal quandary involved in these matters, a brief survey of the relevant provisions of the Act and also an understanding of the scheme of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as "the 1940 Act") is necessary. 8. Prior to the Act, three colonial enactments to some extent dealt with the legislative subject matter of the Act. They are Opium Act, 1857, The Opium Act, 1878 and the Dangerous Drugs Act, 1930. Subsequently, various international treaties and protocols etc. dealing with the menace of narcotic drugs and psychotropic substances came into existence. India has been a party to those treaties and protocols etc. and incurred several legal obligations thereunder. Parliament opined that the existing enactments were inadequate to handle the hazard projected by the narcotic drugs and psychotropic substances, apart from the inadequacy of the existing law to enable India to comply with its international legal obligations. Hence, the Act and all the three old Acts were repealed. 9. The Act deals with narcotic drugs and psychotropic substanc....
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....ate Governments to make Rules permitting and regulating the various aspects of prohibition contained under Section 8. 13. Chapter IV of the Act contains various offences and the punishments for the said offences. 14. Since all the cases on hand are cases of prosecution for some contravention of the Act in relation to psychotropic substances, Sections 22 to 24 are relevant for our enquiry. 15. Section 22 22. Punishment for contravention in relation to psychotropic substances. -Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter- State, exports inter-State, or uses any psychotropic substance shall be punishable, - (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both; (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; (c) where....
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....ine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. prescribes the punishment for illegal import to India or export out of India of narcotic drugs and psychotropic substance. Once again, the punishment varies depending upon the quantity of the contraband involved in the offence. Examination of the scope of Section 24 is not necessary in the context of the factual setting of the cases at hand. 16. Section 35 stipulates that in any prosecution for an offence under the Act which requires a culpable mental state of the accused, the court trying offence is mandated to assume the existence of such mental state, though it is open for the accused to prove that he had no such mental state. Section 35. Presumption of culpable mental state.-(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an o....
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.... various aspects of the control and regulation of DEALING IN narcotic drugs and psychotropic substances. The subject matter of Chapter III of the Rules is opium poppy cultivation and production of opium and poppy straw, Chapter IV manufacture, sale and export of opium, Chapter V manufactured drugs 2(xi): "manufactured drug" means- (a) all coca derivatives medicinal cannabis, opium derivatives and poppy straw concentrate; (b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug; but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug., Chapter VI import, export and transshipment of narcotic drugs and psychotropic substances into or out of India. Rule 53 thereof prohibits both import and export into or out of India of narcotic drugs....
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....s judgment, which is impugned in Special Leave Petition No.5714 of 2006, held thus: "38. So given, as far as psychotropic substances is the present case are concerned, operations pertaining to them are permitted because Schedule I to the Rules do not include them at all. That these substances are included in the schedule to the act is not of any relevance because one has to see everything viz., the Act, the Rules and Order made thereunder together and in a harmonious manner. It is well settled that the psychotropic substance is included in the Schedule to the Act but it is not included in the Schedule I to the Rules, then operations covered by Section 8 cannot be said to be contravening provisions of the Act and, therefore, punishable. That is how, these provisions have been interpreted by Delhi High Court and earlier by Punjab and Haryana High Court. Their views have my respectful concurrence." The learned ASG submitted that such a conclusion is wholly unwarranted on the face of clear language of Section 8(c) of the Act. 22. Shri K.T.S. Tulsi, learned senior counsel appearing for some of the accused in this batch of matters submitted that possession of psychotropic substa....
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.... inter- State, sale, purchase, consumption or use of psychotropic substances; x x x xand 10 Section 10. Power of State Government to permit, control and regulate.-(1) Subject to the provisions of section 8, the State Government may, by rules- (a) permit and regulate- x x x x 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. 27. Therefore, we are of the opinion that the conclusion reached by the various High Courts that prohibition contained under Section 8 is not attracted in respect to all those psychotropic substances which find a mention in the Schedule to the Act but not in Schedule-I to the Rules framed under the Act is untenable. 28. However, it is brought to our notice tha....
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....ic drugs and psychotropic substances which are mentioned in Schedule-I to the Rules and not to the psychotropic substances enumerated in the Schedule to the Act. Such a conclusion was reached in Rajesh Kumar Gupta's case on the understanding that Rule 53 (prohibiting the import into and export out of India of the narcotic drugs and psychotropic substances specified in Schedule-I to the Rules) is the source of the authority for such prohibition. Such a conclusion was drawn from the fact that the other Rules contained in the Chapter permit import into and export out of India of certain narcotic drugs and psychotropic substances other than those specified in Schedule-I to the Rules. Unfortunately, the learned Judges in reaching such a conclusion ignored the mandate of Section 8(c) which inter alia prohibits in absolute terms import into and export out of India of any narcotic drug and psychotropic substance. Rules framed under the Act cannot be understood to create rights and obligations contrary to those contained in the parent Act. 30. On examination of the scheme of Rules 53 to 63 which appear in Chapter VI, we are of the opinion that Rule 53 53. General prohibition - Subject to....
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....nter-State, export inter-State, sell, purchase, consume or use any of the psychotropic substances specified in Schedule- I. once again purports to prohibit various operations other than import into or export out of India in psychotropic substances specified in Schedule-I for the obvious reason that import and export operations are already covered by Rule 53. Rule 65 authorizes the manufacture of psychotropic substances other than those specified in Schedule-I to the Rules subject to and in accordance with the conditions of a licence granted under the 1945 Rules. The rule also provides for various other incidental matters. Rule 65A prohibits the sale, purchase, consumption or use of any psychotropic substances except in accordance with the 1945 Rules. 32. Rule 66 prohibits any person from having in possession any psychotropic substance even for any of the purposes authorized under the 1945 Rules unless the person in possession of such a psychotropic substance is lawfully authorized to possess such substance for any of the purposes mentioned under the 1985 Rules. Persons who are authorized under the 1985 Rules, and the quantities of the material such persons are authorized to poss....