TaxTMI 
TaxTMI 
2025 (4) TMI 1179
X X X X Extracts X X X X
X X X X Extracts X X X X
....ehalf 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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 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, O....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d. 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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tropic 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 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 f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 A....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed below: "17 [...] I am not in agreement with learned counsel for the Petitioner that by interpreting the Statute and the Rules, a penal offence be made out and the Respondents should be tried thereof. Thus, I am of the considered view that the possession and transportation intra country of Buprenorphine Hydrochloride would not be an offence under the Act and hence not punishable under Section 22 and 29 of the Act and the learned Trial Court had rightly remanded the matter to the learned Metropolitan Magistrate holding that no case for offence under the NDPS Act was made out and the learned MM would examine the same in the light of the provisions of D&C Act. xxx xxx xxx 25. There is no denying that the above decision was rendered in the context of an order granting bail and when the Supreme Court was considering as to whether it should exercise its jurisdiction under Article 136 of the Constitution of India to interfere with the order passed by the High Court. But that does not enable us to detract from the position that the Supreme Court, while considering the question, did examine the relevant provisions of the NDPS Act and the NDPS Rules and came to t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and of great persuasive value. We are in full agreement with the observations of the Supreme Court and are indeed persuaded by the line of thought adopted in the said decision in Rajesh Kumar Gupta (supra.). Thus, viewed from any angle, the submission of Mr Malhotra to ignore the decision of the Supreme Court in Rajesh Kumar Gupta (supra), deserves rejection. xxx xxx xxx 35. Till the matter is resolved by the larger bench of the Hon'ble Supreme Court this court is bound by the decision rendered in State of Uttaranchal (supra) and Rajesh Sharma (supra). Thus, I find no infirmity in the impugned order on this count. 36. I also do not find any merit in the contention of the learned counsel for the Petitioner that the Learned Trial Court erred in discharging the Respondents on an application under Section 216 Cr.P.C. Firstly the impugned order was not passed as an order in review but on an application under Section 216 Cr.P.C. duly permitted by this Court. Moreover the Respondents have not been discharged but the matter has been remanded to the Learned Metropolitan Magistrate to proceed in accordance with the provisions of D & C Act and Rules." (Emph....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r Gupta v. State reported in 2005 SCC OnLine Del 873 which held that dealing in substances mentioned in the Schedule to the NDPS Act and not mentioned in Schedule I of the NDPS Rules would not constitute an offence under the NDPS Act. As a consequence, the respondent no. 1 prayed that the charge be altered and the case be remitted to the appropriate court for trial under the D&C Act. 20. On 06.07.2009, the appellant moved an application before the Special Judge for stay of the proceedings since the matter on this issue was sub-judice before this Court by way of an SLP and also that the decision of the Delhi High Court in Rajender Gupta (supra) was challenged in appeal. Since this application was not being heard, the appellant also preferred a petition before the High Court seeking stay of the further proceedings. Vide order dated 16.09.2009, the High Court directed the Special Judge to hear and dispose of the said application in the first instance before proceeding with the main matter. 21. Vide order dated 17.04.2010, the Special Judge observed that the judgement rendered in Rajender Gupta (supra) was not stayed by this Court in appeal. In fact, the same was even approved by....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ocedure provides that if, after such consideration and hearing as aforesaid, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence which is not exclusively triable by the Court of Sessions, he may transfer 'the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for trial in warrant cases. Section 32 of the Drugs and Cosmetics Act, 1940 provides that even if the complaint is not filed by the Drug Inspector, the cognizance against the accused is not bad. The prosecution can be launched by any Gazetted Officer of the Central Government authorised in writing in this behalf by the Central Government or a person aggrieved. 28. As indicated above, Buprenorphine Hydrochloride is a Schedule 'H' drug under the Drugs and Cosmetic Act and Rules and though it is a psychotropic substance under the NDPS Act, it is not included in Schedule I to the NDPS Rules. That being the case, its manufacture, possession or sale is not prohibited. As such, there is no contravention of the provisions of the NDPS Rules. Consequently, the offence under Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ns on behalf of the Appellant(s) a. Criminal Appeal No. 1319 of 2013 24. Mr. Vikramjit Banerjee, the learned Additional Solicitor General appearing on behalf of the appellant, submitted that, in the present case, there was a recovery of 40,001 injections of buprenorphine, which is a psychotropic substance mentioned in the Schedule to the NDPS Act. Therefore, the Respondent could be said to have contravened section 8(c) of the NDPS Act which prohibits the production, manufacturing, possession, selling, purchasing, transporting, warehousing, using, consuming, importing inter- State, exporting inter-State, importing into India, exporting from India or transhipment of any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder. 25. It was submitted that the respondent no. 3 and respondent nos. 1 and 2 respectively were granted bail by the High Court vide its orders dated 11.01.2005 and 22.08.2005 respectively. However, in doing so, the High Court had observed that Buprenorphine Hydrochloride is beyond the pale of Chapter VII of the NDPS R....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... It was further held that the NDPS Act does not contemplate the framing of rules for prohibiting activities involving drugs and psychotropic substances for the reason that Section 8(c) of the NDPS Act already prohibits such activities. 28. As regards the issue of prospective overruling, the counsel submitted that the decision of this Court in Sanjeev V. Deshpande (supra) overruled the decision in Rajesh Kumar Gupta (supra) without a specific declaration that the same was prospectively overruled. In the absence of such a declaration, the interpretation of law in Sanjeev V. Deshpande (supra) must be held to be retrospectively applicable to all cases, including those which have been pending before different courts. 29. It was then submitted that Section 80 of the NDPS Act provides that the provisions of the NDPS Act and Rules made thereunder, shall be in addition to, and not in derogation of the D&C Act, 1940 or the Rules made thereunder. Therefore, the High Court wrongly held that the psychotropic substance in the present case is governed exclusively by the D&C Act without attracting an offence under the NDPS Act. 30. In the last, the learned counsel submitted that subseque....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... under the NDPS Act once the substance finds mention under the D&C Rules. 33. In the last, both the counsels prayed that the impugned orders of the High Court be set aside and the appeals be allowed. ii. Submissions on behalf of the Respondent(s) 34. Mr. Yash Pal Dhingra, the learned counsel appearing on behalf of the respondents submitted that the drug/substance in question is covered by the exception to Section 8 of the NDPS Act i.e., non-applicability of the prohibition in case the substance is to be used for "medical or scientific purposes". Furthermore, he argued that an offence under Section 8 cannot be said to have been committed unless the substance also finds mention under Schedule I of the NDPS Rules. To fortify his contention, the learned counsel placed reliance on the decisions of the Delhi High Court in Rajender Gupta & Ors. v. State reported in 2005 SCC OnLine Del 873 and Rajesh Sharma v. Union of India reported in 2009 SCC OnLine Del 1330 along with the decision of this Court in Rajesh Kumar Gupta (supra). 35. The counsel vehemently submitted that the decision in Sanjeev V. Deshpande (supra) must strictly be held to be prospectively applicable. If not, it....
X X X X Extracts X X X X
X X X X Extracts X X X X
....look into the object and history behind the enactment of the NDPS Act and its Rules along with the broad scheme of the United Nations Convention on Psychotropic Substances, 1971. 40. As per its Preamble, the NDPS Act, 1985 seeks to consolidate and amend the law relating to narcotic drugs, make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances, amongst others. This Court in State of Rajasthan v. Udai Lal reported in (2008) 11 SCC 408 elaborated that the NDPS Act is a special Act which has been enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and stated as thus: "10. [...] Before analysing the same, it is relevant to mention that in order to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....level, many deficiencies in the existing laws have come to notice. Therefore, in order to remove such deficiencies and difficulties, there was urgent need for the enactment of a comprehensive legislation on narcotic drugs and psychotropic substances, which led to enactment of the NDPS Act. As observed hereinabove, the Act is a special law and has a laudable purpose to serve and is intended to combat the menace otherwise bent upon destroying the public health and national health. The guilty must be in and the innocent ones must be out. The punishment part in drug trafficking is an important one but its preventive part is more important. Therefore, prevention of illicit traffic in the Narcotic Drugs and Psychotropic Substances Act, 1985 came to be introduced. The aim was to prevent illicit traffic rather than punish after the offence was committed. Therefore, the courts will have to safeguard the life and liberty of the innocent persons. Therefore, the provisions of the NDPS Act are required to be interpreted keeping in mind the object and purpose of the NDPS Act; impact on the society as a whole and the Act is required to be interpreted literally and not liberally which may ultimate....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d or recovered in practice; and (c) the use of such psychotropic substances for the capture of animals by specifically authorised persons subject to the application of control measures. Article 5, in addition, states that the manufacture, export, import, distribution, stocking, trade, use and possession, of substances in Schedules II, III and IV respectively, must be limited to medical and scientific purposes, except for those purposes already enumerated under Article 4. Furthermore, Article 5 states that it would be desirable if States do not permit the possession of substances mentioned in Schedules II, III and IV respectively, except under legal authority. 45. As per Article 8, the manufacture of, trade in, and distribution of substances listed in Schedules II, III and IV respectively, must also be under a licence or other similar control measures, provided that the requirements of licencing or other control measures need not apply to persons who are duly authorised to perform or are performing therapeutic or scientific functions. Article 9 states that the substances in Schedules II, III and IV respectively, shall be supplied or dispensed for use by individuals only pursuant ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....keep records showing for each acquisition and disposal, details of the quantity, date, supplier and recipient; (d) Information regarding the acquisition and disposal of substances in Schedule III by retail distributors, institutions for hospitalization and care, and scientific institutions must be made readily available through appropriate methods and by taking into account the professional and trade practices of the respective States; and (e) In respect of substances in Schedule IV, manufacturers, exporters and importers must keep records indicating the quantity manufactured, exported and imported. 48. Article 12 elaborates on the provisions relating to international trade and states that every State permitting the export or import of substances in Schedules I or II respectively, shall require a separate import or export authorization which shall state the international non-proprietary name or the designation of the substance in the Schedule, the quantity to be exported or imported, the pharmaceutical form, the name and address of the exporter and importer, and the period within which the export or import must be effected. Additionally, the export authorization shall also state....
X X X X Extracts X X X X
X X X X Extracts X X X X
....treatment and restrictions on their manufacture, use, possession, import and export, amongst others. While Schedule I substances are to be used for limited purposes by the authorized persons under a special licence or prior authorization, the substances mentioned under Schedule II, III and IV respectively, are used for a comparatively wider range of purposes by the licence holders and its supply is allowed to be made pursuant to a medical prescription. Therefore, it cannot be stated that the substances other than the Schedule I substances are completely unregulated or allowed to be dealt with in any manner whatsoever. These substances also have the potential to be misused or abused and hence are subject to certain restrictions and procedural requirements albeit not up to the standards as strict as the Schedule I substances. 51. On a closer look at the substances mentioned in the Schedules to the Convention, it is evident that Buprenorphine and its salt Buprenorphine Hydrochloride is listed under Schedule III. Therefore, according to the scheme of the Convention, the manufacture, distribution, stocking, and possession of Buprenorphine and its salt Buprenorphine Hydrochloride shal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment may, by notification in the Official Gazette, specify in this behalf: Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes. (Emphasis supplied) 54. The mandate under Section 8 is that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship (hereinafter collectively referred to as "deal in/dealing in") any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder. In a case where any such provision imposes any requirement by way of licence, permit or authorisation, the narcotic drugs and psychotropic substances must also be dealt in accordance with the terms and conditions of such licence, permit or authorisation. The term "psychotropic substance" mentioned in Section 8 must be seen in light of Section 2(xxiii) which refers to the Schedule to the Act and all the psychotropic substances mentioned therein. Additionally, to bring a case ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd conditions of the licence, permit or authorisations, if any, then also, an offence under Section 8(c) of the NDPS Act could be said to have been made out. It is only when the exception is complied with entirely or wholly, that an accused can lay claim to the benefit provided under the said provision. 57. Section 9 of the NDPS Act empowers the Central Government to permit and regulate certain activities subject to the provisions of Section 8. The same reads thus: "9. Power of Central Government to permit, control and regulate.- (1) Subject to the provisions of section 8, the Central Government may, by rules- (a) permit and regulate- xxx xxx xxx (vi) the manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption or use of psychotropic substances; (vii) the import into India and export from India and transhipment of narcotic drugs and psychotropic substances; (b) prescribe any other matter requisite to render effective the control of the Central Government over any of the matters specified in clause (a). (2) In particular and without prejudice to the generality of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 8 and the Schedule to the NDPS Act. The underlying object of the NDPS rules is to "permit and regulate" certain activities for carrying out the purposes of the NDPS Act and not to "prohibit" those activities. 60. Rule 2(k) of the NDPS Rules, 1985, states that - "words and expressions used herein and not defined, but defined in the Act shall have the meanings respectively assigned to them in the Act.". Therefore, any reference to "psychotropic substances" under the NDPS Rules must relate to the definition provided under Section 2(xxiii) of the NDPS Act, which consists of the entire list of psychotropic substances enumerated under the Schedule to the Act. Chapter VI of the NDPS rules relate to the import, export and transhipment of narcotic drugs and psychotropic substances and Chapter VII deals with the manufacture, sale, purchase, consumption, use, possession and transport of psychotropic substances. Chapter VIIA details certain special provisions regarding the manufacture, possession, transport, import-export, purchase and consumption of narcotic drugs and psychotropic substances for medical, scientific and training purposes. It would be apposite to mention at this stage that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....psychotropic substances specified in the "Schedule of the Act" shall be exported out of India without an export authorisation in respect of the consignment, issued by the issuing authority in the requisite form appended to the Rules. Rule 60 relating to 'Transhipment' provides that, subject to the provisions of Section 79 of the NDPS Act and Rule 53, no consignment of narcotic drug or psychotropic substance specified in the "Schedule to the Act" shall be allowed to be transhipped at any port in India save with the permission of the Collector of Customs. Rule 61 on the 'Procedure for Transhipment' states that while allowing any consignment of narcotic drug or psychotropic substance specified in the "Schedule to the Act" to be transhipped, the Collector of Customs shall inter alia satisfy himself that the consignment is accompanied by a valid export authorisation issued by the exporting country. 63. What is discernible from the aforementioned rules under Chapter VI is that the import into and export out of India of all psychotropic substances (as listed in the Schedule to the Act) must be accompanied by a valid import certificate and export authorisation issued by the issuing auth....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(India) with regard to the assessed annual requirements of each of the psychotropic substance (which has been referred to in sub-rule (1) i.e., the substances mentioned only under the Schedule to the Act) in bulk form in the country and after taking into account the requirement of such psychotropic substances in the State, as also the quantity of such substance required for supply to other manufacturers outside the State and the quantity of such substance required for reasonable inventory to be held by a manufacturer, the authority in charge of drugs control in a State/the Licensing Authority shall specify, by order, a limit to the quantity of such substance which may be manufactured by the manufacturer in the State. Sub-rule (3) provides that the specific quantity which may be manufactured by a specific licensee in a year shall be intimated by the Licensing Authority to the licensee at the time of issuing the licence. Then, there are two provisos to Rule 65 sub-rule (3) which were inserted vide notification dated 25th June, 1997 w.e.f 27.06.1997. Through the first proviso, an exception has been carved out under the Rule by stating that nothing contained in this rule shall apply in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....facture of psychotropic substances mentioned under Schedule I of the Rules however subject to certain provisions and purposes. This can be culled out from a holistic reading of Rules 64 and 65 respectively, and the two provisos which follow Rule 65(3). Thirdly, the manufacture of all psychotropic substances (as listed in the Schedule to the Act), and those mentioned under Schedule I of the Rules specifically for the purposes elaborated under Chapter VIIA, in violation of the conditions of licence of manufacture issued under the D&C Act would amount to a contravention of Rule 65 of the NDPS Rules and thereby Section 8 of the NDPS Act itself. Therefore, when such a contravention of the conditions of licence occurs, it cannot be said that an offence under the NDPS Act would not be made out and that the contravention would be solely covered by the D&C regime. Due to the operation of Rule 65, violation of any of the conditions of licence under the D&C Act read with its Rules would ipso facto tantamount to a violation of the NDPS Act read with its Rules as well. 66. Rule 66 on 'Possession etc. of psychotropic substances' states that no person shall possess any psychotropic substance (....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Central Government. This Rule would again apply to all psychotropic substances (as mentioned under the Schedule to the Act). 68. At this stage, it may be observed that it was vide a notification dated 25th June, 1997 that Chapter VIIA containing Rule 67A came to be inserted in the NDPS Rules. Chapter VIIA states that, notwithstanding anything contained in the foregoing provisions of these Rules, a narcotic drug or psychotropic substance may be used for - (i) scientific requirements including analytical requirements of any Government laboratory or any research institution in India or abroad; or (ii) very limited medical requirements of a foreigner by a duly authorised person of a hospital or any other establishment of the Government especially approved by that foreign Government; or (iii) the purpose of de-addiction of drug addicts by the Government or local body or by an approved charity or voluntary organisation or by such other institution as may be approved by the Central Government. The persons performing medical or scientific functions as mentioned hereinabove shall maintain records concerning the acquisition of the substance and the details of their use in Form 7 of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Schedule to the Act and not in Schedule I of the Rules by previous decisions of this Court. 70. It is evident from the decision of this Court in Hussain v. State of Kerala reported in (2000) 8 SCC 139 that "Buprenorphine" being listed under the Schedule to the NDPS Act and not under Schedule I of the NDPS Rules, would be a psychotropic substance under the NDPS regime, to which Section 8 of the NDPS Act would apply. The appellant therein was found in possession of 6 ampoules of "Buprenorphine tidigesic" each containing 2ml. The defence that he put forth to justify his possession was that he was regularly using it under medical advice with a valid prescription. Despite such defence put forward by the appellant, the Trial Court convicted him under Section 21 of the NDPS Act which relates to the contravention of the law in respect of "manufactured drugs and preparations" since the District Medical Officer had opined that "Buprenorphine tidigesic" is a manufactured drug. He was sentenced to undergo rigorous imprisonment for a period of 10 years along with payment of fine. On appeal, the High Court affirmed the conviction and sentence. However, this Court opined that the prosecut....
X X X X Extracts X X X X
X X X X Extracts X X X X
....: "66. Possession, etc., of psychotropic substances.-(1) No person shall possess any psychotropic substance for any of the purposes covered by the 1945 Rules, unless he is lawfully authorised to possess such substance for any of the said purposes under these Rules. (2) Notwithstanding anything contained in sub-rule (1), any research institution, or a hospital or dispensary maintained or supported by Government or local body or by charity or voluntary subscription, which is not authorised to possess any psychotropic substance under the 1945 Rules, or any person who is not so authorised under the 1945 Rules, may possess a reasonable quantity of such substance as may be necessary for their genuine scientific requirements or genuine medical requirements, or both for such period as is deemed necessary by the said research institution or, as the case may be, the said hospital or dispensary or person: Provided that where such psychotropic substance is in possession of an individual for his personal medical use the quantity thereof shall not exceed one hundred dosage units at a time. (3) The research institution, hospital and dispensary referred to in su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o ten years of rigorous imprisonment along with fine. The High Court dismissed the appeal challenging the order of conviction and sentence. This Court considered the alternate argument canvassed under Section 27 of the NDPS Act which provides that whoever, in contravention of any provision of this Act, possesses any psychotropic substance, "which is proved to have been intended for his personal consumption and not for sale or distribution" shall be punishable for a term which may extend to 6 months or fine or both. To consider the applicability of the aforesaid provision, it had to be determined whether the substance was in a "small quantity" and if so, whether it was intended for personal consumption. Answering both the questions in the affirmative, it was held that the offence proved to have been committed by the appellant would fall under Section 27 of the Act and accordingly, the conviction of the appellant therein was altered. The relevant observations made by this Court are reproduced as thus: "5. Though the investigating agency thought that the article recovered from the appellant was a narcotic substance, it is in fact a psychotropic substance. This is clearly disc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he limit of small quantity specified under the notification. 9. Then the next question is whether this substance was possessed by him for personal consumption. As the accused had adopted a defence of repudiating the allegation against him, it may look that he cannot rely upon the alternative contention that it was possessed by him for personal consumption. It is too harsh to deny the accused-appellant a right to resort to the alternative contention. Merely because on legal advice, he has chosen one line of defence he cannot be precluded from reaching other defence available to him, particularly since the consequences visiting him are very serious. If the fact situation is sufficient for the court to satisfy that the small quantity in his possession was for personal consumption, he should not be denied the benefit of Section 27 of the NDPS Act. 10. In the aforesaid context we notice a significant factual aspect that along with the small quantity of psychotropic substance recovered, two syringes were also recovered from him by the police. That aspect reflects that he only wanted to use buprenorphine (Tidigesic) for his personal consumption and not for trading purpos....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nsel for the appellant placing reliance on the judgment of this Court reported in Amarsingh Ramjibhai Barot v. State of Gujarat [(2005) 7 SCC 550 : 2005 SCC (Cri) 1704] submitted that this may have a bearing on the question of sentence. In the instant case, we are concerned with diazepam. According to the notification 20 grams of diazepam is considered to be small quantity. Any quantity in excess of 500 grams is commercial quantity. In the instant case 1.528 kilograms of diazepam was found. In these facts the case is clearly covered by Section 22(c) of the Act. We, therefore, find no merit in any of the submissions urged on behalf of the appellant Ravindran. His appeal fails and is, therefore, dismissed." ( Emphasis supplied ) 74. In Rajesh Kumar Gupta (supra) this Court considered the plea of the State to cancel the bail granted to the accused therein. In the said case, the premises of the two clinics run by the respondent claiming to be a Ayurvedacharya was raided. In the search, 70kg of pure Phenobarbitone was recovered and seized. It was further found out that huge quantities of Phenobarbitone was being sold to the patients in both his clinics over a period of sever....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cientific purposes is, therefore, excluded from the purview of the operation thereof. However, such exception carved out under the 1985 Act specifically refers to the manner and to the extent provided by the provisions of the 1985 Act or the rules or orders made thereunder. 19. It has not been brought to our notice that the 1985 Act provides for the manner and extent of possession of the contraband. The rules framed under Section 9 of the 1985 Act read with Section 76 thereof, however, provide for both the manner and the extent, inter alia, of production, manufacture, possession, sale, purchase, transport, etc. of the contraband [...]" xxx xxx xxx 21. The respondent admittedly possesses an Ayurveda Shastri degree. It is stated that by reason of a notification issued by the State of Uttar Pradesh dated 24-2-2003, the practitioners of ayurvedic system of medicines are authorised to prescribe allopathic medicines also. The respondent runs a clinic commonly known as "Neeraj Clinic". He is said to be assisted by eight other medical practitioners being allopathic and ayurvedic doctors. It is also not in dispute that only seven medicines were seized and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to apply only to those drugs and psychotropic substances which are mentioned in Schedule I of the Rules and not under the 1985 Act. Similarly, Chapter VII provides for psychotropic substances. Rule 64 provides for general prohibition. Rules 53 and 64, thus, contain a genus and other provisions following the same under the said Chapter are species thereof. This we say in view of the fact that whereas Rule 64 provides for general prohibition in respect of sale, purchase, consumption or use of the psychotropic substances specified in Schedule I, Rule 65 prohibits manufacture of psychotropic substances, whereas Rule 66 prohibits possession, etc. of psychotropic substances and Rule 67 prohibits transport thereof. Rule 67-A provides for special provisions for medical and scientific purposes. 20. The general prohibitions contained in both Rules 53 and 64, therefore, refer only to the drugs and psychotropic substances specified in Schedule I. It is neither in doubt nor in dispute that whereas the Schedule appended to the 1985 Act contains the names of a large number of psychotropic substances, Schedule I of the Rules prescribes only 35 drugs and psychotropic substances. x....
X X X X Extracts X X X X
X X X X Extracts X X X X
....conspiracy to commit an offence under Chapter IV which includes Section 24 [...]" (Emphasis supplied) 77. Again in D. Ramakrishnan v. Intelligence Officer, Narcotic Control Bureau reported in (2009) 14 SCC 603, the appellant and a co-accused were engaged in the internet pharmacy business and were alleged to have exported drugs abroad including "Alprazolam", "Lorazepam" and "Nitrazepam" which find place at S. Nos. 30, 56 and 64 of the Schedule to the NDPS Act respectively. Since the activities were carried on without a valid export authorisation as required under the NDPS regime, the appellant and his co-accused were prosecuted under Section 8(c) read with Sections 22, 23, 25, 27-A, 53, 53-A and 58 of the NDPS Act. Taking recourse to Rajesh Kumar Gupta (supra), it was argued that the drugs being Schedule G and H drugs under the D&C Rules and not mentioned in Schedule I to the NDPS Rules, its export thereof would not attract the provisions of Rule 58 of the NDPS Rules which requires an export authorisation. This is because Rules 53 and 64 respectively being the genus and dealing with substances under Schedule I of the NDPS Rules would mean that Rule 58 is also applicable ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....his Court examined the legality of the conclusion that the absence of mention of a particular psychotropic substance in Schedule I to the Rules excludes the application of Section 8, notwithstanding the fact that such a drug is included in the Schedule to the Act. i. First, this Court in its decision analysed the true scope and ambit of Section 8(c) of the NDPS Act and stated that Section 8(c) in no uncertain terms prohibits the dealing in any manner in any narcotic drug or psychotropic substance. However, an exception to such prohibition is also contained in the said section and that is, that the dealing in any narcotic drug or psychotropic substance would be permitted "in the manner and to the extent provided by the provisions of this Act or the Rules or Orders made thereunder". Therefore, it was declared that a twin condition must be fulfilled i.e., the dealing must be for medical or scientific purposes AND in the manner and to the extent provided by the provisions of the Act, Rules, or Orders made thereunder and the Court stated as thus: "24. Before we examine the correctness of various submissions, we deem it appropriate to analyse and find out the true scope and a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption or use of psychotropic substances;"] and 10 [ "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-***"] 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 i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ther 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 the other provisions of this Chapter, the import into and export out of India of the narcotic drugs and psychotropic substances specified in Schedule I is prohibited: Provided that nothing in this rule shall apply in case the drug substance is imported into or exported out of India subject to an import certificate or export authorisation issued under the provision of this Chapter and for the purposes mentioned in Chapter VII-A."] reiterates an aspect of the larger prohibition contained i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ture 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 65-A 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 authorised under the 1945 Rules unless the person in possession of such a psychotropic substance is lawfully authorised to possess such substance for any of the purposes mentioned under the 1985 Rules. Persons who are authorised under the 1985 Rules, and the quantities of the material such persons are authorised to possess, are specified under Rule 66(2). They are: (1) any research institution or a hospital or dispensary maintained or supported by the Government, etc. - Rule 66(2). (2) individuals where such possession is needed for personal medical use subject of course to the limits and conditions specified - the two provisos to Rule 66(2). 33. Rule 66 reads as follow....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ther provisions of these two chapters. We are of the clear opinion that neither Rule 53 nor Rule 64 is a source of authority for prohibiting the dealing in narcotic drugs and psychotropic substances, the source is Section 8. Rajesh Kumar Gupta case [State of Uttaranchal v. Rajesh Kumar Gupta, (2007) 1 SCC 355 : (2007) 1 SCC (Cri) 356] in our view is wrongly decided." ( Emphasis supplied ) 79. What is discernible from the aforementioned decisions is that, there is no shadow of doubt on the proposition that dealing in psychotropic substances not finding a mention in Schedule I of the NDPS Rules but finding place in the Schedule to the Act, would also constitute an offence under Section 8 of the NDPS Act. Such was the position even before the decision of this Court in Sanjeev V. Deshpande (supra). The only decision of this Court that laid down an alternate position of law was Rajesh Kumar Gupta (supra) which now stands overruled. It would be preposterous to say that no offence could be said to be made out when an accused deals with substances which are only mentioned under the Schedule to the Act. For then, the entire presence of the Schedule to the Act would have to be co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eshpande (supra). They are indeed allowed to be dealt with for the limited purposes as detailed in Chapter VIIA of the NDPS Rules. It goes without saying that in such dealing for the purposes mentioned under Chapter VIIA, persons would have to comply with the set of procedures and conditions to which the other substances are subjected to and strict compliance of all those rules are mandatory considering the high degree of havoc and menace that the substances mentioned in Schedule I to the NDPS Rules can create on public health and societal well-being. 82. The NDPS rules were revamped in the year 2015 vide G.S.R. 224(E) dated 25.03.2015 with a view to remove the ambiguity that the phrasing of several rules created. That the psychotropic substances mentioned under Schedule I of the NDPS Rules can also be dealt with but for the restricted and limited purposes enumerated under Chapter VIIA of the Rules and in compliance with the requirements under the other rules, is evident from the language of the rules which came into effect post 25.03.2015. To illustrate, Rule 53 of the NDPS Rules now reads as thus: "53. General Prohibition. - Import into and export out of Indi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ions to the said decision. However, since the rephrasing of the language and re-shuffling of the sub-rules vide G.S.R. 224(E) dated 25.03.2015 has clarified the true purport and intention behind the framing of the NDPS Rules, there remains no doubt in our mind that the law post - 25.03.2015 is crystal clear in itself. d. The provisions of the NDPS Act and its Rules are "in addition to" the D&C Act and the Rules made thereunder. 86. Section 80 of the NDPS Act states that the application of the D&C Act would not be barred and reads as follows: "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." 87. In P. Ramanatha Aiyar's Advanced Law Lexicon, the word derogation is defined as "the partial repeal or abrogation of a law by a later act that limits its scope or impairs its utility and force". It is also stated that the word "derogate" is a term of legislation. "Derogation" is partial and indirect abrogation i.e., when a subsequent law reduces the force and application of a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in the instant case. It is only required to be stated that essentially the Drugs and Cosmetics Act, 1940 deals with various operations of manufacture, sale, purchase, etc. of drugs generally whereas the Narcotic Drugs and Psychotropic Substances Act, 1985 deals with a more specific class of drugs and, therefore, a special law on the subject. Further the provisions of the Act operate in addition to the provisions of the 1940 Act." ( Emphasis supplied ) 89. The object of the NDPS Act and D&C Act, respectively was reiterated in State of Punjab v. Rakesh Kumar reported in (2019) 2 SCC 466. Herein, several respondent-accused were convicted for the offence committed either under Section 21 or Section 22 of the NDPS Act for the bulk possession of "manufactured drugs" without any valid authorisation. The High Court allowed the applications seeking suspension of sentence, preferred by the respondentaccused and directed that they be released on bail pending the final disposal of the appeals before it. In doing so, it was observed by the High Court that in cases of manufactured drugs, be it containing narcotic drugs or psychotropic substances, if manufactured by a manufacturer, t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d for intoxication or for getting a stimulant effect." ( Emphasis supplied ) ii. Secondly, by relying on the decision in Sanjeev V. Deshpande (supra), it was reiterated that Section 80 of the NDPS Act does not bar the application of the D&C Act and instead states that the provisions of the NDPS Act can be made applicable in addition to that of the provisions of the D&C Act. The NDPS Act should not be read in exclusion of the D&C Act. This Court took the view that since it is the prerogative of the State to prosecute the offender in accordance with law, the respondentaccused could be charged under Sections 21 or 22 of the NDPS Act respectively, considering that their actions amounted to a prima facie violation of Section 8 of the NDPS Act. The relevant observations are as follows: "13. However, we are unable to agree on the conclusion reached by the High Court for reasons stated further. First, we note that Section 80 of the NDPS Act, clearly lays down that application of the Drugs and Cosmetics Act is not barred, and provisions of the NDPS Act can be applicable in addition to that of the provisions of the Drugs and Cosmetics Act. The statute further clarifies t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on i.e., provides for a situation wherein the dealing in of psychotropic substances would not amount to an offence. However, those conditions forming part of the exception carved out under Section 8 must be read conjointly and not individually. In other words, 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. iii. The NDPS Rules, 1985 have been brought into being by the Central Government in exercise of the powers under Sections 9 and 76 of the NDPS Act, respectively. The underlying object of the NDPS rules is to "permit and regulate" certain activities for carrying out the purposes of the NDPS Act and not to "prohibit" those activities. The NDPS rules m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....awfully authorised to possess such substance for any of the said purposes under the NDPS rules. Therefore, Schedule I substances can be possessed only for the purposes mentioned under Chapter VIIA. All other substances mentioned only under the Schedule to the Act can 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 under Section 8 of the NDPS Act. The above is in addition to the fulfilment of the requirements under the D&C Rules. viii. The underlying idea that resonates throughout the NDPS rules is that dealing in any of the psychotropic substances mentioned under Schedule I of the NDPS Rules must strictly be in accordance with the NDPS Rules AND ONLY for the purposes enumerated under Chapter VIIA of the NDPS Rules. The substances not figuring under Schedule I of the Rules but listed in the Schedule to the Act must also abide by the requirements cast upon by the NDPS Rules. The difference as regards these substances, however, is that while they may be dealt with for the purposes enumerated under Chapter VIIA of the NDPS Rules, they can also be dealt with fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the nature of an exception to the general scheme of the NDPS Rules. While Rules 53 and 64 state that the substances under Schedule I of the Rules cannot be dealt with in any manner, the other substances i.e., those mentioned under the Schedule to the Act, are also regulated under the other rules in the respective Chapters of the NDPS Rules. xiv. However, what we understand as also being the essence of the scheme of the NDPS Rules is that, it does not absolutely prohibit the dealing in of the substances mentioned under Schedule I of the Rules as held in Sanjeev V. Deshpande (supra). These substances figuring in Schedule I of the Rules can also be dealt with but only for the limited purposes mentioned under Chapter VIIA of the NDPS Rules. This is evident from the re-phrasing of the NDPS Rules which was effected on 25.03.2015, which according to us, has not changed the meaning of the Rules but only altered its language. xv. Section 80 states that the provisions of the NDPS Act or the Rules made thereunder shall be in addition to, and not in derogation of the D&C Act and the Rules made thereunder. Therefore, when an offence under the D&C Act is made out or can potenti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed and therefore, it has retrospective effect. On the contrary, it is the statute or the rule which is presumed to be prospective unless expressly made retrospective. What follows from the same, is that a decision or judgment enunciating a principle of law is applicable to all cases irrespective of the stage of pendency before different forums since what has been enunciated is the meaning of the law which existed from the inception of the concerned statute or provision. What has been declared to be the law of the land must be held to have always been the law of the land. This conclusion also stems from the rationale that the duty of the court is not to "pronounce a new law but to maintain and expound the old one". The judge rather than being the creator of the law, is only its discoverer. 93. This Court in Sarwan Kumar and Another v. Madan Lal Aggarwal reported in (2003) 4 SCC 147, opined that when this Court interprets an existing law while overruling the interpretation assigned to it earlier, it cannot be said that a new law is laid down. The declaration of law relates back to the law itself. In other words, it would be deemed that the law was never otherwise. Herein, a 5- jud....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... this Court would be applicable to the cases arising from the date of the judgment of this Court cannot be accepted being erroneous. 20. [...] This Court in Gian Devi Anand case [(1985) 2 SCC 683 : 1985 Supp (1) SCR 1] did not lay down any new law but only interpreted the existing law which was in force. As was observed by this Court in Lily Thomas case [(2000) 6 SCC 224 : 2000 SCC (Cri) 1056] the interpretation of a provision relates back to the date of the law itself and cannot be prospective of the judgment. When the court decides that the interpretation given to a particular provision earlier was not legal, it declares the law as it stood right from the beginning as per its decision. In Gian Devi case [(1980) 17 DLT 197] the interpretation given by the Delhi High Court that commercial tenancies were not heritable was overruled being erroneous. Interpretation given by the Delhi High Court was not legal. The interpretation given by this Court declaring that the commercial tenancies heritable would be the law as it stood from the beginning as per the interpretation put by this Court. It would be deemed that the law was never otherwise. Jurisdiction of the civil court has ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of the court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood. 36. Salmond in his well-known work states: "[T]he theory of case law is that a judge does not make law; he merely declares it; and the overruling of a previous decision is a declaration that the supposed rule never was law. Hence any intermediate transactions made on the strength of the supposed rule are governed by the law established in the overruling decision. The overruling is retrospective, except as regards matters that are res judicatae or accounts that have been settled in the meantime." (Emphasis supplied) b. The intention to make the decision prospectively applicable or the application of the doctrine of "prospective overruling" must be express and clear. 95. Resorting to the doctrine of "prospective overruling" is therefore, an exception to the normal rule that a judgem....
X X X X Extracts X X X X
X X X X Extracts X X X X
....said so, the subsequent Division Bench did not have the jurisdiction in that behalf." (Emphasis supplied) 97. In another decision of this Court in B.A. Linga Reddy and Others v. Karnataka State Transport Authority and Others reported in (2015) 4 SCC 515, it was reiterated that in the absence of a declaration that the decision would operate prospectively, it must be given retrospective effect. The relevant observations are as thus: "34. The view of the High Court in Ashrafulla [Karnataka SRTC v. Ashrafulla, Writ Appeal No. 403 of 1988, order dated 21- 7-1988 (KAR). For order, see Karnataka SRTC v. Ashrafulla Khan, (2002) 2 SCC 560 at pp. 565-66, para 3] has been reversed by this Court. The decision is of retrospective operation, as it has not been laid down that it would operate prospectively; more so, in the case of reversal of the judgment. This Court in P.V. George v. State of Kerala [(2007) 3 SCC 557 : (2007) 1 SCC (L&S) 823] held that the law declared by a court will have a retrospective effect if not declared so specifically. [...] 35. In Ravi S. Naik v. Union of India [1994 Supp (2) SCC 641], it has been laid down that there is retrospective oper....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o American Jurisprudence was applied by this Court for the first time in C. Golak Nath and Others v. State of Punjab and Another reported in AIR 1967 SC 1643. By setting out certain limits for the application of this doctrine, it was laid down that the doctrine of prospective overruling can be invoked only in matters arising under the Constitution; that it could be applied only by this Court since it has the constitutional jurisdiction to declare the law binding on all courts in the country; and that the scope of the retroactive operation of the law which has been declared in supersession of its earlier decision(s) would be left to the Court's discretion to be moulded in accordance with the justice of the cause or matter before it. Over the period of time, this doctrine has been extended to the interpretation of ordinary statutes as well. Furthermore, the doctrine has also been applied in situations wherein the Court has dealt with the issue or the question of law for the first time. Therefore, it can be said that case-law trajectory has seen both the prospective declaration and the prospective overruling of law. 100. This Court in Baburam v. C.C.Jacob and Others reported in (19....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ound to apply such dictum to cases which would arise in future only. In matters where decisions opposed to the said principle have been taken prior to such declaration of law cannot be interfered with on the basis of such declaration of law. In the instant case, both decisions of the DPC as well as the appointing authority being prior to the judgment in Sabharwal case [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] we are of the opinion that the Tribunal was in error in applying this decision. For this reason, these appeals succeed and are hereby allowed; setting aside the orders and directions made by the Tribunal in OAs Nos. 186 of 1994 and 961 of 1995." ( Emphasis supplied ) 101. However, partly differing from the interpretation given in Baburam (supra), the Constitutional Bench of this Court in Somaiya Organics (India) Ltd. and Another v. State of U.P. and Another reported in (2001) 5 SCC 519 had clarified that the application of the doctrine of prospective overruling would not have the effect of validating an invalid law. Therein, initially, a seven-judge bench of this Court in Synthetics and Chemicals Ltd. and Others v. State of U.P. and Others reporte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d in Narayanibai v. State of Maharashtra [(1969) 3 SCC 468] at p. 470 and in Ashok Kumar Gupta v. State of U.P. [(1997) 5 SCC 201 : 1997 SCC (L&S) 1299] In the latter case, while dealing with the "doctrine of prospective overruling", this Court said that it was a method evolved by the courts to adjust competing rights of parties so as to save transactions "whether statutory or otherwise, that were effected by the earlier law". According to this Court, it was a rule "of judicial craftsmanship with pragmatism and judicial statesmanship as a useful outline to bring about smooth transition of the operation of law without unduly affecting the rights of the people who acted upon the law operated prior to the date of the judgment overruling the previous law". Ultimately, it is a question of this Court's discretion and is, for this reason, relatable directly to the words of the Court granting the relief. xxx xxx xxx 33. [...] These observations are in consonance with the directions given in para 89 of the judgment in second Synthetics case [(1990) 1 SCC 109] and applying the said principles to the present appeals the only conclusion which can be arrived at is....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ns are as follows: "45. One of the arguments of the appellant as noted by my learned brother was that the Court in Synthetics case [(1990) 1 SCC 109] by resorting to prospective overruling had in fact sought to uphold a law up to the period of the judgment which law had held to have been passed without competence. It is submitted that the finding that the States were not competent to levy tax on industrial alcohol meant that the State Acts were non est and that the Court could not by giving prospective effect to its judgment breathe life into a dead statute up to the date of the judgment. It was also contended by the appellant that even under Article 142, the Court could not whittle down or act in derogation of any constitutional provision. By declaring that the statute was valid up to the date of the judgment, according to the appellant, the specific constitutional provisions, namely, Article 246 and Article 245 were infringed. Reliance has been placed on the decision of this Court in Prem Chand Garg v. Excise Commr., U.P. [AIR 1963 SC 996 : 1963 Supp (1) SCR 885] and Supreme Court Bar Assn. v. Union of India [(1998) 4 SCC 409] . 46. The argument of the appellant....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... State of Rajasthan and Others reported in (2002) 6 SCC 562, wherein the issue was as regards the grant of bonus marks in the recruitment process for Primary School Teachers in Zila Parishads solely to applicants belonging to the district and rural areas of certain specified districts and, whether the same would be violative of Articles 14 and 16 of the Constitution respectively. By relying on the Full Bench decision of the High Court dated 21.10.1999 rendered in Deepak Kumar Suthar v. State of Rajasthan reported in (1999) 2 Raj LR 692 (FB), the impugned Full Bench decision dated 18.11.1999 and another impugned Division Bench decision of the High Court reiterated that, providing any form of advantage or weightage in public employment in any State service, would not be permissible on the ground of place of birth or residence or, on the ground of being a resident of an urban area or rural area. This Court while agreeing with the impugned decisions had observed that the legality of the selection process which included the addition of bonus marks could not have been seriously doubted either by the appointing authorities or by the candidates, in view of the judicial precedents which ope....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ively. One more aspect which is to be taken into account is that in almost all the writ petitions the candidates appointed, not to speak of the candidates selected, were not made parties before the High Court. Maybe, the laborious and long-drawn exercise of serving notices on each and every party likely to be affected need not have been gone through. At least, a general notice by newspaper publication could have been sought for or in the alternative, at least a few of the last candidates selected/appointed could have been put on notice; but, that was not done in almost all the cases. That is the added reason why the judgment treading a new path should not as far as possible result in detriment to the candidates already appointed. We are not so much on the question whether the writ petitioners were legally bound to implead all the candidates selected/appointed during the pendency of the petitions having regard to the fact that they were challenging the notification or the policy decision of general application; but, we are taking this fact into consideration to lean towards the view of the High Court that its judgment ought to be applied prospectively, even if the non-impleadment is....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as been reiterated that prospective overruling is an accepted doctrine as an extended facet of stare decisis. The doctrine has been invoked under several different subject-matters, for several reasons, each unique to the facts and circumstances of particular case. 106. In Managing Director, ECIL, Hyderabad and Others v. B. Karunakar and Others reported in (1993) 4 SCC 727, a constitutional Bench of this Court was concerned with whether a delinquent employee is entitled to a copy of the enquiry report of the enquiry officer, before the disciplinary authority takes a decision on the guilt of the delinquent, especially when the enquiry officer is someone other than the disciplinary authority. By declaring that such a right is available to the delinquent employee and the same being denied would amount to depriving him of reasonable opportunity and violate his rights under Articles 14 and 21 of the Constitution respectively, along with the principles of natural justice, this Court affirmed the decision of this Court in Union of India and Others v. Mohd. Ramzan Khan reported in (1991) 1 SCC 588. Mohd. Ramzan Khan (supra) contained a declaration that its decision would apply prospectiv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fore us that the law on the subject is not settled even till this day in view of the apparent conflict in decisions of this Court. The learned Judges who referred the matter to this Bench had also taken the same view. We have pointed out that there was no contradiction between the view taken in Mohd. Ramzan Khan case [(1991) 1 SCC 588 : 1991 SCC (L&S) 612 : (1991) 16 ATC 505] and the view taken by this Court in the earlier cases and the reliance placed on K.C. Asthana case [(1988) 3 SCC 600 : 1988 SCC (L&S) 869] to contend that a contrary view was taken there was not well-merited. It will, therefore, have to be held that notwithstanding the decision of the Gujarat High Court in N.N. Prajapati case [(1985) 2 GLR 1406] and of the Central Administrative Tribunal in Premnath K. Sharma case [(1988) 6 ATC 904 : (1988) 3 SLJ (CAT) 449] and of the other courts and tribunals, the law was in an unsettled condition till at least November 20, 1990 on which day the Mohd. Ramzan Khan case [(1991) 1 SCC 588 : 1991 SCC (L&S) 612 : (1991) 16 ATC 505] was decided. Since the said decision made the law expressly prospective in operation the law laid down there will apply only to those orders of punish....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pplied ) 108. The minority opinion rendered by K. Ramaswamy, J., also illustrated the circumstances and the potential reasons due to which the doctrine of prospective overruling may be resorted to. It was opined that under constitutional law, retrospective operation of an overruling judgment is neither required nor prohibited. The decision as regards retrospectivity or prospectivity must depend on the facts and circumstances of each case, as also the nature and purpose which the overruling decision seeks to serve. Other relevant factors which must be taken account of include the justifiable reliance which has been placed by the administration on the overruled decision, the ability to effectuate the new rule adopted in the overruling case without doing injustice and whether the likelihood of its retrospective operation substantially burdens the administration of justice. Prior history of the rule in question, its purpose and effect and whether the retroactive operation will accelerate or retard its operation are also significant considerations. The relevant observations are reproduced as thus: "66. When judicial discretion has been exercised to establish a new norm, the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... was observed that the doctrine of prospective overruling was a rule of judicial craftsmanship laced with pragmatism and judicial statesmanship which intends to serve as an useful tool, ensuring the smooth transition of the operation of law, without unduly affecting the rights of the people who acted upon the law which existed or operated previously. In the facts of the case, it was observed that the reversion of the petitioner to their parent cadre was bound to have a cascading effect which would prejudice several persons who are not even parties before the Court. The relevant observations are as follows: "16. The "doctrine of prospective overruling" was, observed by this Court as a rule of judicial craftsmanship laced with pragmatism and judicial statesmanship as a useful tool to bring about smooth transition of the operation of law without unduly affecting the rights of the people who acted upon the law that operated prior to the date of the judgment overruling the previous law. xxx xxx xxx 22. [...] Such being the position reverting these officers at this distant point of time, to the posts of Senior Stenographers in their parent cadre does not appear....
X X X X Extracts X X X X
X X X X Extracts X X X X
....st does not mean that it should be allowed to persist, otherwise it will never be corrected. The doctrine of "prospective overruling" has no application since there is no overwhelming reason to save the appointment of the Upa-Lokayukta from attack. As already held, in the absence of any consultation with the Chief Justice, the appointment of Justice Chandrashekaraiah as an Upa-Lokayukta is void ab initio. However, this will not affect any other appointment already made since no such appointment is under challenge before us." ( Emphasis supplied ) 111. Yet another decision of this Court in Union of India v. I.P. Awasthi and Others reported in (2015) 17 SCC 340 took the view that it would not be appropriate to apply the doctrine of prospective overruling when a large number of parties are not affected. The doctrine was stated to have been evolved to avoid confusion in matters where a large number of parties have settled their affairs on account of the overruled law. Since larger public interest was not involved in the facts of the case, this Court refrained from applying the said doctrine and struck down the amended rule retrospectively. The relevant observations are repr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of prospectivity to a decision must not be resorted to in a routine manner without the Court satisfying itself that the circumstances demand such a solution, both to do complete justice to the matter at hand and also to reorient the law in the right direction without creating widespread chaos and disruption. By employing the doctrine of prospective overruling, the matter pending before different forums would still be governed under the old law or the overruled decision. In simpler words, the pending cases would not be affected by the new declaration of law. In the absence of this the Court applying this doctrine, all pending matters and future cases would automatically and inescapably be governed by the law declared in the overruling decision. In certain situations, it might be preferable on a holistic consideration of several competing interests and factors to invoke the doctrine of prospective overruling and therefore, it could be said that the ambit of the doctrine is co-extensive with the equity of a situation to prevent the intrusion into matters which have already been settled or have attained finality. The principle involves giving effect to the new law laid down from a pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....plicable only prospectively and thus exclude from the operation thereof the process of admission which had already commenced and was nearing finalisation when the judgment came to be pronounced. 6. Accordingly, it is directed that the allotment of seats under the all-India quota, the process as to which had commenced pursuant to the advertisement dated 16-9-2003 shall remain confined to 25% only. [...] ( Emphasis supplied ) 116. S.B. Sinha, J., in his minority opinion had agreed with the general proposition that the declaration of law by reason of a judgment may affect the rights of parties retrospectively. Having said so, he expressed serious doubt as to whether a Constitution Bench can modify the judgment of another Constitution Bench for the purpose of declaring the former to have prospective effect, even under the exercise of Article 142 of the Constitution. Such an exercise of the jurisdiction under Article 142, in his opinion, would only be appropriate during the rendition of the judgment and not thereafter. If a different view than the one arrived at in the initial judgement is sought to be taken, then it is the review jurisdiction which must be invoked.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ns had been held much after the rendition of the judgment. Asking the Court to apply the judgment of this Court with prospective effect would amount to asking for a review and, thus, the same cannot be permitted to be achieved by filing an application for clarification. 37. Application for clarification/modification filed by the Union of India is based on wholly wrong premise. A judgment, as is well known, must be read as a whole. So read it is evident that declaration of law has clearly been made therein. There does not exist any ambiguity requiring clarification. 38. Therefore, I respectfully dissent with the opinion of Brother Lahoti, J. I am of the view that no case has been made out for applying the judgment in Saurabh Chaudri [(2003) 11 SCC 146] from the academic year 2005. " ( Emphasis supplied ) 117. It must be noted that the majority opinion in Saurabh Chaudri (supra) which was inclined towards declaring the previous judgment prospectively applicable, was given when several IAs were filed seeking clarifications in or modification of the judgment which was already rendered in the same matter on 04.11.2023. It was not an occasion where an altoge....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Gupta [Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201 : 1997 SCC (L&S) 1299], referred to above, has laid down that Article 142 empowers this Court to mould the relief to do complete justice. To conclude this point, the purpose of holding that M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] would have prospective effect is only to avoid chaos and confusion that would ensue from its retrospective operation, as it would have a debilitating effect on a very large number of employees, who may have availed of reservation in promotions without there being strict compliance of the conditions prescribed in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] . Most of them would have already retired from service on attaining the age of superannuation. The judgment of M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] was delivered in 2006, interpreting Article 16(4-A) of the Constitution which came into force in 1995. As making the principles laid down in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] effective from the year 1995 would be d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....low. The relevant observations are reproduced hereinbelow : 17. [...] But taking the totality of the facts and circumstances of each case, and specially the fact that Pamanani case has held the field for about three years by now, we did not feel that justice required that we should interfere with the orders of acquittal in these cases and send some cases back to the High Court while deciding other ourselves by recording orders of conviction. Rule 22-B clarifying the law has also been introduced as late as December, 1977 although Pamanani case was decided in December, 1974. We were informed at the Bar, and so far we are aware, rightly too, that for non-compliance with the requirements of Rule 22, many cases in different States had ended in acquittal. Decision in many of them became final and only a few could be brought to this Court. Each one of the Food Inspectors concerned had failed in discharging his duty strictly in accordance with the requirements of the law, and, in such a situation, after great harassment, long delay, and expenses which the respondents had to incur, they should not be punished by this Court. 18. In the three Kerala cases Mr S.V. Gupte appea....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the respondents therein by an order of the Court itself. However, there was no mention as regards matters which may have been pending before a trial court and which required a consideration of this issue. This may have been so because Rule 22-B which was introduced three years after the decision in Pamanani (supra) clarified the position of law laid down in Pamanani (supra) by stating that "Notwithstanding anything contained in Rule 22, the quantity of sample sent for analysis shall be considered as sufficient unless the public analyst or the Director reports to the contrary". Therefore, it was more likely that all the pending matters came to be instituted only after Rule 22-B was introduced and there remained no doubt on the position of law since. Therefore, this Court confined itself to making an observation relating to the acquittals alone i.e., that the acquittals would not be interfered with. However, if in case, there existed a matter, instituted before the trial court, before Rule 22-B came into being and was concerned with the same question, the decision in Alassery (supra) could be said to have been applicable to it retrospectively. 121. The applicability or discuss....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... The upshot of the above discussion is that the view taken by the Full Bench [Amendment of First Schedule of Criminal Procedure Code by Criminal Procedure Code (M.P. Amendment) Act, 2007, In re, (2008) 3 MPLJ 311] holding the amended provision to be inapplicable to pending cases is not correct on principle. The decision rendered by the Full Bench [Amendment of First Schedule of Criminal Procedure Code by Criminal Procedure Code (M.P. Amendment) Act, 2007, In re, (2008) 3 MPLJ 311] would, therefore, stand overruled but only prospectively. We say so because the trial of the cases that were sent back from the Sessions Court to the Court of the Magistrate, First Class under the orders of the Full Bench [Amendment of First Schedule of Criminal Procedure Code by Criminal Procedure Code (M.P. Amendment) Act, 2007, In re, (2008) 3 MPLJ 311] may also have been concluded or may be at an advanced stage. Any change of forum at this stage in such cases would cause unnecessary and avoidable hardship to the accused in those cases if they were to be committed to the Sessions for trial in the light of the amendment and the view expressed by us. xxx xxx xxx 27. The present case, i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... However, Somaiya Organics (supra) clarified that the application of the doctrine of prospective overruling would not have the effect of validating an invalid law. All that is done is that the declaration of invalidity of the legislation is directed to take effect from a future date. To prevent the chaotic unscrambling of actions done in the past, a middle-ground is reached by postponing the decision declaring invalidity to a particular date, in the interest of doing complete justice. Thus, ensuring that "complete justice" is done in the most equitable way is the true essence of the doctrine and this is also evident from the fact that this Court has, on several occasions, prescribed the limits to the retroactivity of the law declared by it. v. The evolution of the doctrine of prospective overruling, although not indigenous to India, yet has been well entrenched in Indian jurisprudence. As a default rule, any judgment deciding a question of law would be retrospective and would also apply to the factual situation in the background of which such a decision is rendered. However, it is only when the hardship is too great that such a retrospective operation is withheld. Broadly,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed to arrive at a reasonable conclusion. vii. Therefore, the invocation of the doctrine of prospective overruling or the attribution of prospectivity to a decision must not be resorted to in a routine manner without the court satisfying itself that the circumstances demand such a solution, both to do complete justice to the matter at hand and also to reorient the law in the right direction without creating widespread chaos and disruption. In certain situations, it might be preferable on a holistic consideration of several competing interests and factors to invoke the doctrine of prospective overruling and therefore, it could be said that the 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 absence of the court applying this doctrine, however, all pending matters and future cases would automatically and inescapably be governed by the law declared in the overruling decision. viii. In the realm of criminal law, the question of prospective or retrospective declaration of a law/decision has been comparatively rare. In Alas....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... corollary to the aforesaid, we see no reason why we should deviate from the default rule of retrospectivity and instead, resort to the doctrine of prospective overruling. Therefore, pending cases, if any, which were instituted before the decision of this Court in Sanjeev V. Deshpande (supra) would also be governed by the law as clarified by it. f. Article 20(1) considerations on the retrospective applicability of the decision in Sanjeev V. Deshpande (supra). 124. Article 20(1) of the Constitution of India reads that - "No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.". It is therefore, set in stone under the constitutional principles of our legal system that it would be absolutely impermissible for an accused to be convicted of an offence under any Act, if his act was not an offence at the time during which it was committed. Herein, the import of the words "law in force at the time of the commission" is especially important. It has ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that the court was simply mistaken in regard to the law in its former decision and it would have the effect of obliterating the former decision altogether. However, it was cautioned that courts will not apply a change made by the overruling decision to the construction of the law given in the overruled decision, so as to invade the vested rights of any person. The relevant observations are reproduced hereinbelow: "Passing, however, to the consideration of what is regarded by the parties as the real question in issue --that is to say: Shall we confine the change made in the interpretation of the law by the Taggart case so as to operate prospectively only, and thereby not affect appellant in its claim to the entire surplus dog fund distributed to and received by it prior to March 21, 1895; or shall the new construction of the statute be held to be binding on it as to the money in dispute? The decisions of a court of last resort, the authorities assert, are not the law, but are only the evidence or exposition of what the court construes the law to be, and in overruling a former decision by a subsequent one the court does not declare the one overruled to be bad law, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... based upon an anticipated continuance of the existing law. 128. It is obvious that, in the factual circumstances before us, especially in matters of a criminal nature, the essence of the decision laid down in Rajesh Kumar Gupta (supra) could not be considered to have been separately embraced in any contract, both express or implied. On the contrary, it is the legislative authority of the NDPS Act, more particularly Section 8 of the NDPS Act, which would have the final say on whether an offence is made out or not or govern the facts which the accused persons have subjected themselves to. When the very legal interpretation given to Section 8 of the NDPS Act could be said to have been wrong and misplaced in the overruled decision, it naturally follows that no vested right, whatsoever, could have accrued or be said to have existed independently of the statute, to such persons accused of a committing an offence under Section 8. More so, when the decision in Rajesh Kumar Gupta (supra) was an outlier on the issue when compared to several decisions that came prior to it. 129. A constitutional Bench of this Court in Rao Shiv Bahadur Singh and Another v. State of Vindhya Pradesh repor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion, and (2) whether the various acts in respect of which the appellants were convicted constituted offences in this area only from the date when Ordinance 48 of 1949 was passed or were already so prior thereto. xxx xxx xxx 22. In this connection our attention has been drawn to the fact that the Vindhya Pradesh Ordinance 48 of 1949, though enacted on 11-9-1949 i.e. after the alleged offences were committed, was in terms made retrospective by Section 2 of the said Ordinance which says that the Act "shall be deemed to have been in force in Vindhya Pradesh from 9-8-1948", a date long prior to the date of the commission of the offences. It was accordingly suggested that since such a law at the time when it was passed was a valid law and since this law had the effect of bringing this Ordinance into force from 9-8-1949, it cannot be said that the convictions are not in respect of "a law in force" at the time when the offences were committed. This, however, would be to import a somewhat technical meaning into the phrase "law in force" as used in Article 20. "Law in force" referred to therein must be taken to relate not to a law "deemed" to be in force and thus brought i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t and was triable by a Court of Session whereas Section 498-A IPC is triable by a Magistrate of the First Class and is punishable for a term which may extend to three years in addition to a fine. The relevant observations are reproduced below : "9. It is clear from the above historical background that the offence of dowry death punishable under Section 304-B of the Indian Penal Code is a new offence inserted in the Penal Code, 1860 with effect from November 19, 1986 when Act 43 of 1986 came into force. The offence under Section 304-B is punishable with a minimum sentence of seven years which may extend to life imprisonment and is triable by Court of Session. The corresponding amendments made in the Code of Criminal Procedure and the Indian Evidence Act relate to the trial and proof of the offence. Section 498-A inserted in the Penal Code, 1860 by the Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983) is an offence triable by a Magistrate of the First Class and is punishable with imprisonment for a term which may extend to three years in addition to fine. It is for the offence punishable under Section 498-A which was in the statute book on the date of death of Chhay....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as unconstitutional by the judgment rendered in Subramanian Swamy v. Director, Central Bureau of Investigation and Another reported in (2014) 8 SCC 682 led to the creation of a new offence, which had the effect of causing implications on the fundamental right guaranteed under Article 20(1) of the Constitution, and also whether the declaration of unconstitutionality must be given prospective effect. This Court held that the declaration of Section 6-A as unconstitutional would not have any implications as far as fundamental rights are concerned since the provision purely related to a procedural aspect. Furthermore, since the declaration of a provision as unconstitutional goes to the root of it and makes it void ab initio and non-est, it's effect would be retrospective in nature. In declaring so, the Bench elaborated on the following aspects: i. First, that under the first part of Article 20(1), it is only the conviction or sentence for any offence under an ex-post facto law that is prohibited. It would be highly unjust, unfair and in violation of human rights to punish a person under an ex-post facto law for acts or omissions that were not an offence when committed. The Benc....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... human rights to punish a person under the ex post facto law for acts or omissions that were not an offence when committed. [...] 39. Rao Shiv Bahadur Singh [Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, (1953) 2 SCC 111 : 1953 SCR 1188] observes that the language of clause (1) of Article 20 of the Constitution is much wider in terms as the prohibition under the article is not confined to the passing of validity of the law, and that fullest effect must be given to the actual words used and what they convey. Accordingly, the decision had struck down Vidhya Pradesh Ordinance 48 of 1949, which though enacted on 11-9-1949, had postulated that the provisions would deemed to have come into force in Vidhya Pradesh on 9-4-1948, a date prior to the date of commission of offences. Interpreting the term "law in force", it was held that the Ordinance giving retrospective effect would not fall within the meaning of the phrase "law in force" as used in clause (1) of Article 20 of the Constitution. The "law in force" must be taken to relate not to a law deemed to be in force, but factually in force, and then only it will fall within the meaning of "existing law". Artifice or fictio....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... or another competent authority had once enacted a provision/rule wherein the dealing of substances only mentioned in Schedule I of the NDPS Rules, would constitute an offence and the same later came to be substituted with a provision/rule which stated that the dealing in of all substances mentioned under the Schedule to the Act would also constitute an offence under Section 8. It is just that the position of law was assumed to be so in Rajesh Kumar Gupta (supra), however, that conclusion was expressly declared as wrong in Sanjeev V Deshpande (supra). The three-judge Bench in Sanjeev V Deshpande (supra) while overruling Rajesh Kumar Gupta (supra) went to the extent of saying that Rajesh Kumar Gupta (supra) ignored the mandate of Section 8(c) of the NDPS Act and that it was wrongly decided. Therefore, the intention of the legislature along with the true import and meaning of Section 8(c) read with the relevant rules was always that the dealing in of any psychotropic substance mentioned under the Schedule to the Act in contravention of the provisions of the Act and Rules framed thereunder, must necessarily be punished. The consistent line of decisions of this Court, as elaborated by ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....motivated the enactment of the NDPS Act along with the object of the NDPS Act and concluding that it would be a grave error to assume that the law was ever otherwise. 135. Moreover, consider a situation wherein a certain statute or provision is declared to be unconstitutional by this Court for being violative of Article 14 of the Constitution but with prospective effect. Can it be argued that the actions undertaken on the basis of that unconstitutional provision or legislation, until the date of the judgment, would be open to being challenged for also being violative of Article 14? This would necessarily be answered in the negative because the Court consciously declares prospectivity after weighing and balancing all interests and practical realities. No individual can claim the benefit of the decision declaring a provision as unconstitutional for transactions or events which occurred prior to that decision if the intention to give prospective effect to the decision is plain and direct. No doubt, the actions wrongly taken in the past would not be automatically validated but on a balance of equities, a challenge to those actions are also disallowed. Similarly, while a decision is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....it could be said without any doubt that a new offence was "created". Thirdly, in R.R. Kishore (supra). it was reiterated that it was only the conviction or sentence for any offence under an ex-post facto law that is prohibited under Article 20(1). 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 interpretation of the provision in question such that it was completely unforseeable. An ex-post facto law lays down a new or completely alternate legal position from what existed before. The same is not the effect of an overruling decision which only interprets the intention which always remained with the legislature while enacting the concerned provision. The indiscriminate dealing in of substances which are only mentioned under the Schedule to the Act cannot be said to have been indubitably legal and allowed by the legislation prior to the decision in Sanjeev V Deshpande (supra). 137. We find it necessary to reiterate that acquittals which have already been recorded and have attained finality would not be unsettl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....made it clear that the appellant did not want the respondents to be convicted in case his contentions were accepted and that the Corporation only wished to clarify the legal position on the aforesaid issue. In conclusion, while this Court agreed with the contentions of the appellant, the respondents were only held to be "technically guilty" of the offence with which they were charged and this Court opined that they had been wrongly acquitted by the High Court and the Trial Court respectively. The relevant observations are reproduced below: "26. Coming to the case on hand, on the findings of the two courts the sugar in question has been found to be adulterated. The purchase by the Food Inspector from the accused of sugar for purposes of analysis is a sale under Section 2(1) of the Act. Section 7 prohibits a person from selling adulterated article of food. Similarly, under Section 16(1)(a)(i) any person who sells adulterated food commits an offence and is punishable therein. The sugar which is the commodity before us is food under Section 2(3) of the Act. We have already pointed out that sugar by itself is an article used as food or at any rate it is an article which ordinar....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or ad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ommitted criminal breach of trust, however, a charge sheet was not filed in respect of the said offence. The application was allowed by the Trial Court and subsequently, the Revisional Court upheld the framing of charge under Section 406 IPC only against the appellant-husband. This Court while agreeing with the High Court summarised the principles underlying Section 216 CrPC as follows : i. First, the test for exercise of power under Section 216 CrPC is that it must be founded on the material available on record and therefore, it can be on the basis of the complaint or the FIR, or other accompanying documents or materials brought on record during the course of the trial. The charge which has been framed by the Trial Court must therefore be in accord with the materials available before him. ii. Secondly, the power must not be construed in a restricted manner to mean that unless evidence has been let in, the charges that have already been framed cannot be altered. The Court is empowered to change or alter the charge framed, if it finds that there is a defect or that something has been left out in the order framing charge. iii. Thirdly, it is obligatory for ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....apareddy Sridhar Reddy v. State of A.P. reported in (2020) 12 SCC 467, the scope of powers under Section 216 was elaborated. It was stated that the power under this provision to alter a charge is an exclusive and wide-ranging power and this is clear from the fact that it may be exercised at any time before the judgment is pronounced, meaning also at a stage wherein the evidence and arguments are completed and the judgment is reserved. It was further stated that if the Court is of the opinion that there was an omission in the framing of charge or if the existence of the factual ingredients constituting another offence is also inferred from a prima facie examination of the material brought on record, the alteration or addition of a charge can be done. Such material brought on record must have a direct nexus with the ingredients of the alleged offence. This Court cautioned that the power under this provision must be exercised judiciously and observed as follows : "21. From the above line of precedents, it is clear that Section 216 provides the court an exclusive and wide-ranging power to change or alter any charge. The use of the words "at any time before judgment is pronounc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ad subject matter continues to be the same. Further, to amend would imply that the modification made in the subject improves it, which might not necessarily be the case with an alteration. In other words, an amendment may involve an alteration but an alteration does not always amend. 148. In Sohan Lal and Others v. State of Rajasthan reported in (1990) 4 SCC 580, this Court while holding that an application under Section 216 would not be maintainable against persons who have already been discharged, elaborated the meaning of the words "alter and add to" as follows: "12. Add to any charge means the addition of a new charge. An alteration of a charge means changing or variation of an existing charge or making of a different charge. Under this section addition to and alteration of a charge or charges implies one or more existing charge or charges." ( Emphasis supplied ) 149. Therefore, to alter a charge would be to vary an existing charge and make a different charge. Hence, when the Court exercises its power under Section 216, either on its own motion or on an application made by the parties, and "alters" a charge, it would be necessary that the existing charge....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the respondent no.2 along with the other accused then filed an application under Section 216 CrPC seeking alteration of charge, which was also dismissed. In revision, the High Court, however, set aside the charge framed against the respondent no. 2. While holding that an accused cannot seek a discharge under the garb of modification/alteration of charge through a Section 216 application, this Court also highlighted that it has become routine practice for the accused to file an application under Section 216 CrPC after their application for discharge under Section 227 CrPC is dismissed, sometimes in ignorance of the law but also on other occasions with the sole intent of derailing the trial. The relevant observations are as thus: "7. From the above conspectus of events, it clearly transpires that the Respondent No. 2 after having failed to get himself discharged from the Sessions Court as well as from the High Court in the first round of litigation, filed another vexatious application before the Sessions Court under Section 216 of Cr. P.C., after the framing of charge by the Sessions Court, for modification of the charge. The Sessions Court having dismissed the said applica....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dence of PW-1 was recorded, the accused moved an application under Section 216 CrPC for alteration of charge and the same also came to be dismissed by the Trial Court. The High Court stated that the alteration of charge and deletion of charge hold different field and that these two cannot be intermingled. A perusal of the prayer made by the accused in the 216 CrPC application indicated that it was, in essence, a prayer for discharge and quashing of the charges levelled against him. Therefore, it was held that such a power to delete charges is not conferred on the Court under Section 216 CrPC. It was added that a charge once framed, it must lead either to an acquittal or conviction at the end of the trial and charges cannot be permitted to be deleted mid-trial. The relevant observations are reproduced hereinbelow: "9. From perusal of above, is apparent that the Court may alter or add to any charge at any time before judgment is pronounced but alteration of charge and deletion of charge hold different field and these two cannot be intermingled, otherwise it will cause miscarriage of justice. This is admitted fact that the discharge application moved by the revisionist was di....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ureau Of Investigation, 2007 Cri LJ 4080, placed reliance on aforesaid judgment of this Court in the case of Vibhuti Narayan Chaubey (supra)." ( Emphasis supplied ) 154. We are in agreement with the view that once charges have been framed by the Trial Court in exercise of the powers under Section 228 CrPC, the accused cannot thereafter be discharged, be it through an exercise of the powers under Sections 227 or 216 CrPC. It is reiterated that the language of Section 216 CrPC provides only for the addition and alteration of charge(s) and not for the deletion or discharge of an accused. If the Legislature had intended to empower the Trial Court with the power to delete a charge at that stage, the same would have been expressly and unambiguously stated. Therefore, 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. No shortcuts must be allowed. 155. In both the appeals before us i.e. Criminal Appeal Nos. 1319 of 2013 and 272 of 2014 respectively, the Trial Courts vide their orders dated 30.11.2006 and 17.04.2010 have in effect deleted the charge framed for the offence under the provi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....st necessarily be retrospectively applicable. This Court in Sanjeev V. Deshpande (supra), perhaps, did not think fit to confine or restrict its interpretation of Section 8 of the NDPS Act to future cases only. This is evinced from the fact that whilst overruling Rajesh Kumar Gupta (supra), it deliberately chose not to discuss the doctrine of prospective overruling let alone resort to it. This conspicuous silence in Sanjeev Deshpande (supra) as regards the prospective or retrospective effect of overruling Rajesh Kumar Gupta (supra) has to be borne in mind and given due deference. As a natural corollary to the aforesaid, we see no reason why we should deviate from the default rule of retrospectivity and instead, resort to the doctrine of prospective overruling. Therefore, pending cases, if any, which were instituted before the decision of this Court in Sanjeev V. Deshpande (supra) would also be governed by the law as clarified by it. 159. Furthermore, the retrospective application of the dictum in Sanjeev V. Deshpande (supra) would not give rise to any implications as regards the rights of the accused persons under Article 20(1) of the Constitution. This is because while overruling t....