By TIOL News Service

NEW DELHI, AUG 13, 2014: THESE are 12 appeals referred to a Larger Bench. All these cases pertain to prosecution under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. Each one of the accused is alleged to be in possession of some psychotropic substance mentioned in the Schedule to the Act.

Eventually, the question is whether persons accused of committing an offence under the Act could be enlarged on bail in view of the stipulations contained under Section 37 of the Act. In some of these cases, bail was granted by the concerned High Court and in some cases, bail was rejected .

Aggrieved by such orders, either the State or the accused preferred these appeals.

Section 37 of the Act stipulates that all the offences punishable under the Act shall be cognizable. It further stipulates that:-

(1) persons accused of an offence under Section 19, 24, 27A or persons accused of offences involved in “commercial quantity” shall not be released on bail, unless the public prosecutor is given an opportunity to oppose the application for bail; and

(2) more importantly that unless "the Court is satisfied that there are reasonable grounds for believing" that the accused is not guilty of such an offence. Further, the Court is also required to be satisfied that such a person is not likely to commit any offence while on bail.

In other words, Section 37 departs from the long established principle of presumption of innocence in favour of an accused person until proved otherwise.

The Supreme Court observed,

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.

In other words, DEALING IN narcotic drugs and psychotropic substances is permissible only when such DEALING is for medical purposes or scientific purposes. Further, the mere fact that the DEALING IN narcotic drugs and psychotropic substances is for a medical or scientific purpose does not by itself lift the embargo created under section 8(c). Such a dealing must be in the manner and extent provided by the provisions of the Act, Rules or Orders made thereunder. Sections 9 and 10 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.

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.

Therefore, the conclusion reached by the various High Courts that prohibition contained under Section 8 is not attracted in respect to all those psychotropic substances which find a mention in the Schedule to the Act but not in Schedule-I to the Rules framed under the Act is untenable.

However it was brought to the notice of the Supreme Court that conclusion such as the one reached by the various High Courts as noted above is supported by a judgment of this Court in Rajesh Kumar Gupta.

The Larger Bench is now of opinion that the conclusion (reached in Rajesh Kumar Gupta's case ) that the prohibition contained in Rule 63 of the 1985 Rules is applicable only to those narcotic drugs and psychotropic substances which are mentioned in Schedule-I to the Rules and not to the psychotropic substances enumerated in the Schedule to the Act , is not correct. According to the Larger Bench, “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. Rajesh Kumar Gupta's case in our view is wrongly decided.”.

In view of the above conclusion, the matters are remanded to the respective High Courts for passing of appropriate orders in the light of this judgment.

(See 2014-TIOL-68-SC-NDPS-LB)