Supreme Court of India
STATE OF PUNJABversusRAKESH KUMAR
- Citation
- 2018 INSC 1131
- Decided
- 3 December 2018
- Disposal
- Appeal(s) allowed
- Bench
- N V RAMANA
Holding
Possession of manufactured narcotic drugs without authorization constitutes a prima facie violation of Section 8 of the NDPS Act, making the NDPS Act applicable and precluding reliance on the Drugs and Cosmetics Act, and the High Court's order suspending the sentence is set aside.
Summary
The accused were apprehended with bulk quantities of manufactured narcotic drugs and were convicted under Sections 21 and 22 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The High Court, however, suspended their sentences under Section 389 of the Code of Criminal Procedure, holding that the matter should be tried under the Drugs and Cosmetics Act because the drugs were "manufactured". The State appealed, contending that the NDPS Act, a special law for narcotic substances, applies and that the High Court erred in granting suspension while the appeals were pending. The Supreme Court examined the legislative intent of both Acts, held that possession of manufactured narcotic drugs without authorization is a prima facie violation of Section 8 of the NDPS Act, and that the NDPS Act is not excluded by the Drugs and Cosmetics Act. Consequently, the Court set aside the High Court's order suspending the sentence and directed that the accused be taken into custody, allowing the State's appeal.
Issues considered
- Whether possession of "manufactured drugs" falls under the NDPS Act or the Drugs and Cosmetics Act, 1940.
- Whether Section 80 of the NDPS Act bars the application of the Drugs and Cosmetics Act.
- Whether the High Court could grant suspension of sentence under Section 389 CrPC while the appeals were pending and on merits of the case.
- Whether the NDPS Act should be read in exclusion to the Drugs and Cosmetics Act.
Legislation cited
- Code of Criminal Procedure, 1973s. 389
- Drugs and Cosmetics Act, 1940
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 21, s. 22, s. 8, s. 80
Subjects
NDPS ActDrugs and Cosmetics ActSuspension of sentenceSection 389 CrPCManufactured drugsLegislative intentCriminal procedure
Judgment
[2018] 14 S.C.R. 415 415
STATE OF PUNJAB A
v.
RAKESH KUMAR
(Criminal Appeal No. 1512 of 2018)
DECEMBER 03, 2018
B
[N. V. RAMANA, MOHAN M. SHANTANAGOUDAR,
M. R. SHAH, JJ.]
Code of Criminal Procedure, 1973: s.389 – Suspension of
sentence – In the instant case, the respondents were apprehended
with “manufactured drugs” and convicted by trial court under ss.21
and 22 of the NDPS Act – High Court allowed the applications for C
suspension of sentence filed by accused-respondents holding that,
since the instant matters related to “manufactured drugs”, the
respondents should have been tried for the violation of provisions
of Drugs and Cosmetics Act, 1940 and not under the NDPS Act –
State filed instant appeals – Held: While the Drugs and Cosmetics D
Act deals with drugs which are intended to be used for therapeutic
or medicinal usage, the NDPS Act intends to curb and penalize the
usage of drugs which are used for intoxication or for getting a
stimulant effect – Thus, NDPS Act, should not be read in exclusion
to Drugs and Cosmetics Act – Additionally, it is the prerogative of
the State to prosecute the offender in accordance with law – In the E
instant case, since the action of the accused-Respondents amounted
to a prima-facie violation of s.8 of the NDPS Act, they were charged
under s.22 of the NDPS Act – The decision rendered by High Court
that the accused-respondents must be tried under the Drugs and
Cosmetics Act, 1940 instead of the NDPS Act, as they were found in F
possession of the “manufactured drugs”, does not hold good in
law – Further, the accused-respondents had approached the High
Court seeking suspension of sentence – However, in granting the
relief, the High Court erroneously made observations on the merits
of the case while the appeals were still pending before it – In view
of the facts and circumstances of the instant case and gravity of G
offence alleged against accused-respondents, the order of High
Court directing suspension of sentence and grant of bail was clearly
unsustainable in law and is set aside – Drugs and Cosmetics
Act,1940 – Narcotic Drugs and Psychotropic Substances Act, 1985
– ss.21 and 22.
H
415
416 SUPREME COURT REPORTS [2018] 14 S.C.R.
A Drugs and Cosmetics Act, 1940: Legislative intent of
enactment – Discussed.
Narcotic Drugs and Psychotropic Substances Act, 1985:
Legislative intent of enactment – Discussed.
Allowing the appeals, the Court
B
HELD: 1.1 The Drugs and Cosmetics Act, 1940 was
enacted to specifically prevent sub-standard drugs and to maintain
high standards of medical treatment. The Drugs and Cosmetics
Act,1940 was mainly intended to curtail the menace of adulteration
of drugs and also of production, manufacture, distribution and
C sale of spurious and sub-standard drugs. On the other hand, the
N.D.P.S Act is a special law enacted by the Parliament with an
object to control and regulate the operations relating to narcotic
drugs and psychotropic substances. While the Drugs and
Cosmetics Act deals with drugs which are intended to be used
D for therapeutic or medicinal usage, on the other hand the
N.D.P.S Act intends to curb and penalize the usage of drugs which
are used for intoxication or for getting a stimulant effect.
[Para 8][422-G-H; 423-A]
Chimanlal Jagjivandas Sheth v. State of Maharashtra AIR
E 1963 SC 665 : [1963] Suppl. SCR 344 – relied on
Inderjeet Singh v. State of Punjab 2014 (3) RCR (Crl) 953 –
referred to
1.2 Section 8 of the 1985 Act, is the prohibitory clause
whose violation would lead to penal consequence. Further, Section
F 21 provides for punishment for contraventions in relation to
manufactured drugs and preparations and Section 22 provides
for punishment for contraventions in relation to psychotropic
substances. Both the above provisions provide for the imposition
of rigorous imprisonment for a term which shall not be less than
ten years but which may extend to twenty years, and the imposition
G
of a fine which shall not be less than one lakh rupees but which
may be extended to two lakh rupees, if the recovered substance
amounts to commercial quantity. However, the proviso
appended thereto empowers the Court, with a discretionary
power to impose a fine exceeding two lakh rupees. In the instant
H
STATE OF PUNJAB v. RAKESH KUMAR 417
case, the accused-respondents were found in bulk possession A
of manufactured drugs without any valid authorization.
[Paras 9, 10, 11][423-B, G-H; 924-B-C]
Union of India v. Sanjeev V. Deshpande (2014) 13 SCC
1 : [2014] 11 SCR 981 – relied on
2. The N.D.P.S Act, should not be read in exclusion to Drugs B
and Cosmetics Act, 1940. Additionally, it is the prerogative of
the State to prosecute the offender in accordance with law. In the
instant case, since the action of the accused-Respondents
amounted to a prima-facie violation of Section 8 of the N.D.P.S
Act, they were charged under Section 22 of the N.D.P.S Act. The C
decision rendered by the High Court holding that the accused-
respondents must be tried under the Drugs and Cosmetics Act,
1940 instead of the N.D.P.S Act, as they were found in possession
of the “manufactured drugs”, does not hold good in law. Further,
the accused-respondents had approached the High Court seeking
suspension of sentence. However, in granting the said relief, D
the High Court erroneously made observations on the merits of
the case while the appeals w ere still pending before it.
[Paras 15, 16][425-F-H]
Case Law Reference
E
2014 (3) RCR (Crl) 953 referred to Para 5
[2014] 11 SCR 981 relied on Para 5
[1963] Suppl. SCR 344 relied on Para 8
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
F
No. 1512 of 2018.
From the Judgment and Order dated 29.01.2018 of the High Court
of Punjab and Haryana at Chandigarh in CRM– 32387 of 2015 in CRA-
S-840-SB of 2015.
With G
Criminal Appeal Nos. 1514, 1515, 1517, 1516, 1513, 1518, 1521,
1530, 1520, 1526, 1525, 1519, 1528, 1523, 1527, 1524, 1529, 1522, 1533,
1532, 1536, 1531, 1534 and 1535 of 2018.
Ms. Jaspreet Gogia, Ms.Mandakini Singh, Advs. for the Appellant.
H
418 SUPREME COURT REPORTS [2018] 14 S.C.R.
A Aman Preet Singh Rahi, A.Venayagam Balan, Nitin Kumar
Thakur, Ms. S. Janani, Ms. Shruti Bist, Varinder Kumar Sharma,
N. P. Joshi, Sandeep Sharma, A. Deb Kumar, A. Lakshminarayanan,
Ms. Nidhi, Manik Garg, Rameshwar Prasad Goyal, Chirag Girdhar,
Dinesh Verma, S. L. Aneja, Ajay Singh, Sukhdev Singh, Jinendra Jain,
Pranay Jain, Vibhuti Sushant Gupta, Ram Naresh Yadav, A. Tewari,
B
Ms. Eliza Bar, Shree Pal Singh, Subhasish Bhowmick, Vineet Bhagat,
K. G. Bhagat Vikram Vishal Minhas Advs. for the Respondent.
The Judgment of the Court was delivered by
N. V. RAMANA, J. 1. Leave granted.
C 2. The present appeals are filed by the State having been aggrieved
by the common judgment and order dated 29th January, 2018 passed by
the High Court of Punjab and Haryana, allowing the applications for
suspension of sentence, preferred by the accused-respondents herein
under Section 389 Cr.P.C. and directing to release them on bail, while
D the Appeals are pending in the High Court.
3. In order to appreciate the merits of theseappeals, brief facts
which have emerged from the case of the prosecution need to be noted
at the outset. In all these appeals, the accused-respondents were
apprehended with“manufactured drugs” and convicted by the Trial Court
E for offences committed under Section 21 or Section 22 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to
as “N.D.P.SAct”). The alleged offences and conviction recorded by
the Trial Court against the respondents are listed below:
F
G
H
STATE OF PUNJAB v. RAKESH KUMAR 419
[N. V. RAMANA, J.]
A
B
C
D
E
F
G
H
420 SUPREME COURT REPORTS [2018] 14 S.C.R.
A
B
C
D
E
F
G
H
STATE OF PUNJAB v. RAKESH KUMAR 421
[N. V. RAMANA, J.]
A
B
C
D
E
F
4. Aggrieved by the Judgment and conviction by the respective 4.
Trial Courts, the accused-respondents approached the High Court through
various appeals. The accused-respondents, during the pendency of the
appeals, preferred an application seeking suspension of sentence. Since
a common question of law was involved in the above appeals, the High
Court heard the matters together and passed a common order dated G
29.01.2018, allowing the applications for suspension of sentence preferred
by the accused-respondents. The High Court observed that manufactured
drugs, be it containing narcotic drugs or psychotropic substances, if
manufactured by a manufacturer, must be tried, if violation is there, under
the Drugs and Cosmetics Act and not under the NDPS Act, except H
422 SUPREME COURT REPORTS [2018] 14 S.C.R.
A those in loose form by way of powder, liquid etc. Dissatisfied by the
above order dated 29.01.2018, the State has preferred the present appeals.
5. The counsel on behalf of the appellant-State, while criticizing
the impugned order passed by the High Court, drew our attention to the
relevant provisions of the N.D.P.S Act and Drugs and Cosmetics Act,
B 1940, and submitted that, the N.D.P.S Act, itself does not bar the
application of the Drugs and Cosmetics Act, 1940. Further, the counsel
also argued that, the impugned judgment is in gross violation of the decision
rendered in Inderjeet Singh v. State of Punjab 2014 (3) RCR (Criminal)
953, by the Division Bench of the Punjab and Haryana High Court. The
counsel also relied upon the decision rendered by this Court in Union of
C India v. Sanjeev V. Deshpande (2014) 13 SCC 1, wherein it was clearly
held that dealing in narcotic drugs and psychotropic substances is
permissible only if it is for medical or scientific purposes. But even the
usage for medical and scientific purposes is not restriction free, as it is
subject to rules under the N.D.P.S Act.
D 6. On the contrary, the counsel on behalf of the accused-
respondents has supported the reasoning of the High Court while stating
that it is very farfetched to presume that, any person who is apprehended
with bulk quantity of manufactured drug, without having a license for
the same, has committed an offence which is liable to be prosecuted
E under the N.D.P.S Act. The counsel further submitted that, the High
Court was correct to conclude that, it can be considered as a violation of
the provisions of the Drugs and Cosmetics Act, 1940. Therefore, there
was no error in granting the relief of suspension of sentence, considering
that the appeals are not going to be adjudicated in the near future.
F 7. Heard the learned counsel for both the parties.
8. At the outset it is essential to note the objectives of the two
legislations before us, i.e., the Drugs and Cosmetics Act, 1940 and the
N.D.P.S Act. The Drugs and Cosmetics Act, 1940 was enacted to
specifically prevent sub-standard drugs and to maintain high standards
G of medical treatment. (See Chimanlal Jagjivandas Sheth v. State of
Maharashtra AIR 1963 SC 665) The Drugs and Cosmetics Act,1940
was mainly intended to curtail the menace of adulteration of drugs and
also of production, manufacture, distribution and sale of spurious and
sub-standard drugs. On the other hand, the N.D.P.S Act is a special law
enacted by the Parliament with an object to control and regulate the
H operations relating to narcotic drugs and psychotropic substances. After
STATE OF PUNJAB v. RAKESH KUMAR 423
[N. V. RAMANA, J.]
analyzing the objectives of both the Acts, we can safely conclude that A
while the Drugs and Cosmetics Act deals with drugs which are intended
to be used for therapeutic or medicinal usage, on the other hand the
N.D.P.S Act intends to curb and penalize the usage of drugs which are
usedfor intoxication or for getting a stimulant effect.
9. At this juncture, it is also pertinent to note the relevant provisions B
under the N.D.P.S Act. Section 8 of the 1985 Act, is the prohibitory
clause whose violation would lead to penal consequence:
Section 8. Prohibition of certain operations. -No person shall-
(a) cultivate any coca plant or gather any portion of coca plant; or
C
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport,
warehouse, use, consume, import inter-State, export inter-State,
import into India, export from India or transship any narcotic drug
or psychotropic substance, D
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 and in a case where any such provision,
imposes any requirement by way of licence, permit or authorization
also in accordance with the terms and conditions of such licence,
E
permit or authorization:
Provided that, and subject to the other provisions of this Act and
the rules made there under, the prohibition against the cultivation
of the cannabis plant for the production of ganja or the production,
possession, use, consumption, purchase, sale, transport,
F
warehousing, import inter-State and export inter State of ganja
for any purpose other than medical and scientific purpose shall
take effect only from the date which the Central Government
may, by notification in the Official Gazette, specify in this behalf.
10. Further, Section 21 provides for punishment for contraventions
in relation to manufactured drugs and preparations and Section 22 G
provides for punishment for contraventions in relation to psychotropic
substances. Both the above provisions provide for the imposition of
rigorous imprisonment for a term which shall not be less than ten years
but which may extend to twenty years, and the imposition of a fine
which shall not be less than one lakh rupees but which may be extended H
424 SUPREME COURT REPORTS [2018] 14 S.C.R.
A to two lakh rupees, if the recovered substance amounts to commercial
quantity. However, the proviso appended thereto empowers the Court,
with a discretionary power to impose a fine exceeding two lakh rupees
for reasons to be recorded in the judgment.
11. In the present case, the accused-respondents were found in
B bulk possession of manufactured drugs without any valid authorization.
The counsel on behalf of the appellant-State has extensively stressed
that the actions of the accused-Respondents amounts to clear violation
of Section 8 of the N.D.P.S Act as it clearly prohibits possession of
narcotic substances except for medicinal or scientific purposes. In
furtherance of the same, the counsel on behalf of the appellant-State
C has put emphasis on the judgment rendered by this court in the case of
Union of India vs. Sanjeev V. Deshpande (supra), wherein it was
held that:
“25. In other words, DEALING IN narcotic drugs and
psychotropic substances is permissible only when such DEALING
D 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
E 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.
F 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…”
G
(emphasis supplied)
12. In the present appeals before us, the trial courts after analyzing
the evidence placed before them, held the accused Respondents guilty
beyond reasonable doubt and convicted them for offences committed
under Section 21 and Section 22 of the N.D.P.S Act.
H
STATE OF PUNJAB v. RAKESH KUMAR 425
[N. V. RAMANA, J.]
13. The counsels for the accused-respondents have strongly A
supported the judgment of the High Court wherein it was held that, since
the present matters deal with “manufactured drugs” the present
respondents should be tried for the violation of provisions of Drugs and
Cosmetics Act, 1940.
14. However, we are unable to agree on the conclusion reached B
by the High Court for reasons stated further. First, we note that Section
80 of the N.D.P.S Act, clearly lays down that application of the Drugs
and Cosmetics Act is not barred, and provisions of N.D.P.S. Act can be
applicable in addition to that of the provisions of the Drugs and Cosmetics
Act. The statute further clarifies that the provisions of the N.D.P.S Act
are not in derogation of the Drugs and Cosmetics Act, 1940. This Court C
in the case of Union of India vs. Sanjeev V. Deshpande (supra), has
held that,
“35. …essentially the Drugs & Cosmetics Act, 1940 deals with
various operations of manufacture, sale, purchase etc. of drugs
generally whereas Narcotic Drugs and Psychotropic D
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
1940 Act.”
(emphasis supplied) E
15. The aforesaid decision further clarifies that, the N.D.P.S Act,
should not be read in exclusion to Drugs and Cosmetics Act, 1940.
Additionally, it is the prerogative of the State to prosecute the offender
in accordance with law. In the present case, since the action of the
accused-Respondents amounted to a prima-facie violation of Section 8 F
of the N.D.P.S Act, they were charged under Section 22 of the N.D.P.S
Act.
16. In light of above observations, we find that decision rendered
by the High Court holding that the accused-respondents must be tried
under the Drugs and Cosmetics Act, 1940 instead of the N.D.P.S Act, G
as they were found in possession of the “manufactured drugs”, does not
hold good in law. Further, in the present case, the accused-respondents
had approached the High Court seeking suspension of sentence. However,
in granting the aforesaid relief, the High Court erroneously made
observations on the merits of the case while the appeals were still pending
H
before it.
426 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 17. Considering the facts and circumstances of the present case
and the gravity of offence alleged against the accused-respondents, the
order of the High Court directing suspension of sentence and grant of
bail is clearly unsustainable in law and the same is liable to be set aside.
18. Accordingly the impugned order passed by the High Court is
B hereby set aside and the concerned authorities are directed to take the
accused-respondents herein into custody forthwith.
19. Lastly, the counsels for respondents in Appeals arising out of
SLP (Crl) No.4816/2018 and SLP (Crl) No.4817/2018 have specifically
pleaded that the respondents have already undergone a considerable
C period under incarceration. In light of the same, we request the High
Court to expedite the hearings and dispose of the appeals accordingly. It
is needless to observe that the observations made during the course of
this order are only for deciding these appeals.
20. The appeals stand allowed in aforesaid terms. As a sequel
D pending applications, if any shall also stand disposed of.
Devika Gujral Appeals allowed.
E
F
G
H
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