Holding

The Court held that Section 8(c) of the NDPS Act applies to all psychotropic substances listed in the Schedule to the Act, the Deshpande judgment is retrospective, and Section 216 CrPC does not permit deletion of a charge once framed.

Summary

The Directorate of Revenue Intelligence investigated the illegal possession, manufacture and sale of Buprenorphine Hydrochloride, a psychotropic substance listed in the Schedule to the NDPS Act but not in Schedule I of the NDPS Rules, leading to charges under Sections 8(c), 22 and 29 of the NDPS Act against several respondents. The High Court had held that no offence under the NDPS Act was made out and allowed the discharge of the accused under Section 216 CrPC, directing the matter to be tried under the Drugs and Cosmetics Act. The Supreme Court examined whether dealing with such a substance constitutes an offence under Section 8(c), whether the decision in Sanjeev V. Deshpande should operate prospectively, and whether Section 216 CrPC permits deletion of a charge after it has been framed. It held that the prohibition in Section 8(c) applies to all psychotropic substances in the Schedule to the Act, irrespective of their presence in Schedule I of the Rules, that the Deshpande decision applies retrospectively, and that Section 216 CrPC only allows alteration or addition of charges, not deletion. Consequently, the trial courts erred in discharging the accused, and the appeals were allowed, directing the cases to be tried by the Special NDPS Judge.

Issues considered

Whether dealing with a psychotropic substance listed in the Schedule to the NDPS Act but not in Schedule I of the NDPS Rules constitutes an offence under Section 8(c) of the NDPS Act.
Whether the Supreme Court's decision in Union of India v. Sanjeev V. Deshpande should be given prospective effect.
Whether, after a charge has been framed under Section 228 CrPC, an accused can seek discharge or deletion of that charge under Section 216 CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 216, s. 227, s. 228
Drugs and Cosmetics Act, 1940
Narcotic Drugs and Psychotropic Substances Act, 1985s. 22, s. 29, s. 80, s. 8(c)
Narcotic Drugs and Psychotropic Substances Rules, 1985s. 53, s. 64, s. 65, s. 66, s. 67, s. 67A

Headnote

Issue for Consideration Issue arose whether an offence u/s.8(c) of the NDPS Act 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; whether the case must operate with prospective effect; and that once, charge has been framed by a competent court u/s.228 CrPC, can an accused thereafter seek for discharge/deletion of a particular offence from the charge u/s.216 CrPC. Headnotes† Narcotic Drugs and Psychotropic Substances

Subjects

Buprenorphine HydrochlorideInjectable preparation of BuprenorphinePsychotropic substanceAlteration of chargeDischarge/deletion of chargePublic health and social welfareConvention on Psychotropic Substances, 1971United Nations Convention on Psychotropic Substances, 1971Single Convention on Narcotic Drugs, 1961United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988Prospective overrulingRetrospective applicabilitySection 8 NDPS ActSection 216 CrPCSection 228 CrPCTechnical guilt

Judgment

[2025] 4 S.C.R. 835 : 2025 INSC 498

Directorate of Revenue Intelligence
v.
Raj Kumar Arora & Ors.
(Criminal Appeal No. 1319 of 2013)
17 April 2025
[J.B. Pardiwala* and Manoj Misra, JJ.]

Issue for Consideration
Issue arose whether an offence u/s.8(c) of the NDPS Act 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; whether
the decision in Sanjeev V. Deshpande’s case must operate with
prospective effect; and that once, charge has been framed by a
competent court u/s.228 CrPC, can an accused thereafter seek
for discharge/deletion of a particular offence from the charge
u/s.216 CrPC.

Headnotes†
Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.8 – Narcotic Drugs and Psychotropic Substances Rules,
1985 – rr.53, 64, Chapter VIIA – Drugs and Cosmetics Act,
1940 – Dealing in psychotropic substances-“Buprenorphine
Hydrochloride” that appear in the Schedule to the NDPS Act
but do not figure in Schedule I to the NDPS Rules, if constitutes
an offence u/s.8(c):
Held: It cannot be said that the dealing in of “Buprenorphine
Hydrochloride” would not amount to an offence u/s.8 owing to the
fact that the said psychotropic substance only finds mention under
the Schedule to the NDPS Act and is not listed under Schedule I
of the NDPS Rules – There exists nothing to indicate that rr.53
and 64 of the NDPS Rules respectively, are the governing rules
in their respective Chapters, more so, when the language of the
other rules in Chapters VI and VII respectively, are clear about
their application to the substances mentioned under the Schedule
to the Act as well – All the psychotropic substances mentioned
under the Schedule to the Act have potential grave and harmful
consequences to the individual and the society at large, when
* Author
836 [2025] 4 S.C.R.

Supreme Court Reports

abused – Some psychotropic substances mentioned under the
Schedule to the NDPS Act are also mentioned under the D&C
Act and the rules framed thereunder – This is only because
those substances while capable of being abused for their inherent
properties could also be used in the field of medicine – However,
the mere mention of certain psychotropic substances under the
D&C regime would not take them away from the purview of the
NDPS Act, if they are also mentioned under the Schedule to the
NDPS Act – Courts below erred in holding that the offence under
the provisions of the NDPS Act is not made out – Trial courts could
also not have discharged/deleted the charge under the NDPS
Act framed against the accused persons while disposing of an
application u/s.216 – This is something not permissible within the
criminal procedure and the High Court unfortunately failed to take
notice of this aspect – Accused persons were not acquitted but
discharged – There arises no occasion to hold them technically
guilty of the offences under the provisions of the NDPS Act that
they were charged with – Accused to be tried by the concerned
Special Judge, NDPS, in accordance with law – Impugned orders
passed by the High Court set aside. [Paras 156, 157, 161-163]

Narcotic Drugs and Psychotropic Substances Act, 1985 –
Narcotic Drugs and Psychotropic Substances Rules, 1985 –
Drugs and Cosmetics Rules, 1940 – NDPS Act and Rules, if
applicable in addition to the 1940 Act:
Held: s.80 states that the provisions of NDPS Act or Rules made
thereunder shall be in addition to, and not in derogation of D&C
Act and Rules made thereunder – Thus, when an offence under
D&C Act is made out or can potentially be made out, accused can
also be charged or prosecuted for an offence under NDPS Act or
vice-versa – Due to operation of r.65, a violation of the condition
of licence under the D&C Act read with its Rules would ipso facto
tantamount to a violation of NDPS Act read with its Rules – To say
that no offence would be made out in a case where an accused
deals with a substance mentioned only under Schedule to the Act,
would have the consequence of rendering entire Schedule to the Act
useless, unnecessary and nugatory – NDPS Rules do not absolutely
prohibit dealing in of substances mentioned under Schedule I of
Rules – Substances in Schedule I of Rules can also be dealt with
but only for the limited purposes mentioned under Chapter VIIA – All
other substances mentioned only under Schedule to the Act can
[2025] 4 S.C.R. 837

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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 u/s.8 NDPS Act. [Para 90]

Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.8 – Narcotic Drugs and Psychotropic Substances Rules,
1985 – Treatment of substances mentioned in Schedule to the
Act and not in Schedule I of the Rules – Sanjeev Deshpande’s
judgment holding that s.8 is applicable to all the psychotropic
substances which are mentioned in Schedule to the Act but not
in Schedule-I to the Rules framed under the Act – If Sanjeev
Deshpande’s judgment operative with prospective effect:
Held: Decision in Sanjeev V. Deshpande’s case must be given
retrospective effect – No reason to declare the interpretation given to
s.8 of the NDPS Act and the relevant NDPS Rules, by the decision
in Sanjeev V. Deshpande’s case, as prospectively applicable – On
the other hand, in order to meet the ends of justice and with a view
to ensure that public interest is safeguarded and to give effect to
the salutary object behind the enactment of the NDPS Act, the
decision must necessarily be retrospectively applicable – This
Court in Sanjeev V. Deshpande’s case, perhaps, did not think fit
to confine or restrict its interpretation of s.8 to future cases only –
Whilst overruling Rajesh Kumar Gupta’s case, it deliberately chose
not to discuss the doctrine of prospective overruling let alone resort
to it – This conspicuous silence in Sanjeev Deshpande’s case
as regards the prospective or retrospective effect of overruling
Rajesh Kumar Gupta’s case has to be borne in mind and given
due deference – As a natural corollary to the aforesaid, no reason
why there should be deviation from the default rule of retrospectivity
and instead, resort to the doctrine of prospective overruling – Thus,
pending cases, if any, which were instituted before the decision of
this Court in Sanjeev V. Deshpande’s case would also be governed
by the law as clarified by it. [Paras 158-160]

Doctrines – Doctrine of prospective overruling – Meaning,
object and scope – Applicability or non-applicability of doctrine
of prospective overruling in criminal matters, so far:
Held: Default rule is that overruling of a decision generally operates
retrospectively – This is because a judgement which interprets
a statute or provision declares the meaning of the statute as it
should have been construed from the date of its enactment and
838 [2025] 4 S.C.R.

Supreme Court Reports

what has been declared to be the law of the land must be held to
have always been the law of the land – If a subsequent decision
alters or overrules the earlier one, it cannot be said to have made
a new law – Correct principle of law is just discovered and applied
retrospectively – Since resorting to the doctrine of “prospective
overruling” is an exception to the normal rule that a judgement or
decision applies retrospectively and to the general rule of doctrine
of precedent, an express declaration by the court that its decision
is prospectively applicable is absolutely necessary – Prospectivity
as a concept cannot be considered to be inhered in situations
since the intention to attribute prospectivity to a decision must
be limpid and clear – Doctrine is being applied with a view to
not unsettle everything that was undertaken in the past either on
account of an existing law/rule or due to the decision of a court –
Prospective overruling is an accepted doctrine as an extended
facet of stare decisis – Doctrine involves giving effect to the new
law laid down from a prospective date, ordinarily from the date
of the judgement of the overruling decision – There are several
factors or considerations which may weigh with the court before the
doctrine of prospective overruling is applied – 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 realm of criminal
law, the question of prospective or retrospective declaration of a
law/decision has been comparatively rare. [Paras 118, 122]

Constitution of India – Art.20(3) – Consideration u/Art.20(3), on
the retrospective applicability of Sanjeev Deshpande judgment:
Held: Retrospective application of the dictum in Sanjeev V.
Deshpande’s case overruling the decision in Rajesh Kumar
Gupta’s case, would not give rise to any implications as regards
the rights of the accused persons u/Art.20(1) – This is because
while overruling the decision in Rajesh Kumar Gupta’s case, the
decision in Sanjeev Deshpande’s case has only clarified the law
as it stood from its inception and given true effect to the meaning
assigned to the relevant provisions of the NDPS Act and the Rules
thereunder, by the lawmakers – Same cannot be construed as
creating a new offence – Additionally, 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
[2025] 4 S.C.R. 839

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

interpretation of the provision in question such that it was completely
unforseeable – It cannot be said that the indiscriminate dealing in
of substances which are only mentioned under the Schedule to the
NDPS Act and absent under Schedule I of the NDPS Rules, was
indubitably legal and allowed by the legislation, prior to the decision
in Sanjeev Deshpande’s case – Thus, giving retrospective effect to
the decision in Sanjeev V. Deshpande’s case would be necessary
considering the facts and circumstances of the matters. [Para 159]

Code of Criminal Procedure, 1973 – ss.216, 228 – Alteration
of charge – Meaning – Once, charge framed by a competent
court u/s.228, if accused can seek for discharge/deletion of
a particular offence from the charge u/s.216 :
Held: s.216 provides the Court with the power to alter a charge and
add to a charge – To alter a charge would be to vary an existing
charge and make a different charge – Nowhere, does the provision
expressly or by necessary implication lead to an inference that a
charge could be deleted altogether – Once charges have been
framed by the trial court in exercise of the powers u/s.228, the
accused cannot thereafter be discharged, be it through an exercise
of the powers u/s.227 or 216 – Language of s.216 provides only
for the addition and alteration of charges and not for the deletion or
discharge of an accused – If the Legislature intended to empower trial
court with the power to delete a charge at that stage, the same would
have been expressly and unambiguously stated – Thus, 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.
[Paras 149-151, 154]

Case Law Cited
State of Uttranchal v. Rajesh Kumar Gupta [2006] Supp. 8 SCR
843 : (2007) 1 SCC 355; Union of India & Anr. v. Sanjeev V.
Deshpande [2014] 11 SCR 981 : 2014 13 SCC 1; K. Ravi v. State
of Tamil Nadu & Anr. [2024] 8 SCR 700 : (2024) SCC OnLine SC
2283; State of Rajasthan v. Udai Lal [2008] 8 SCR 38 : (2008)
11 SCC 408; Hira Singh v. Union of India [2020] 4 SCR 1130 :
(2020) 20 SCC 272; Hussain v. State of Kerala [1999] Supp. 4
SCR 189 : (2000) 8 SCC 139; Ouseph alias Thankachan v. State
of Kerala (2004) 4 SCC 446; Ravindran alias John and Anr. v.
Superintendent of Customs (2007) 6 SCC 410; Sanjay Kumar
Kedia v. Narcotics Control Bureau and Another [2007] 12 SCR
840 [2025] 4 S.C.R.

Supreme Court Reports

812 : (2008) 2 SCC 294; D. Ramakrishnan v. Intelligence Officer,
Narcotic Control Bureau [2009] 11 SCR 442 : (2009) 14 SCC 603;
State of Punjab v. Rakesh Kumar [2018] 14 SCR 415 : (2019)
2 SCC 466; Sarwan Kumar and Another v. Madan Lal Aggarwal
[2003] 1 SCR 918 : (2003) 4 SCC 147; Gian Devi Anand v. Jeevan
Kumar and Others [1985] Supp. 1 SCR 1 : (1985) 2 SCC 683;
Assistant Commissioner, Income Tax, Rajkot v. Saurashtra Kutch
Stick Exchange Limited [2008] 13 SCR 421 : (2008) 14 SCC 171;
P.V. George and Others v. State of Kerala and Others [2007] 1
SCR 1198 : (2007) 3 SCC 557; B.A. Linga Reddy and Others v.
Karnataka State Transport Authority and Others [2014] 13 SCR
205 : (2015) 4 SCC 515; Manoj Parihar and Others v. State of
Jammu and Kashmir and Others [2022] 7 SCR 611 : (2022) 14
SCC 72; I.C. Golak Nath and Others v. State of Punjab and Another
[1967] 2 SCR 762 : AIR 1967 SC 1643; Baburam v. C.C.Jacob
and Others (1999) 3 SCC 362; Somaiya Organics (India) Ltd. and
Another v. State of U.P. and Another [2001] 3 SCR 33 : (2001) 5
SCC 519; Synthetics and Chemicals Ltd. and Others v. State of
U.P. and Others [1989] Supp. 1 SCR 623 : (1990) 1 SCC 109;
Kailash Chand Sharma v. State of Rajasthan and Others [2002]
Supp. 1 SCR 317 : (2002) 6 SCC 562; Managing Director, ECIL,
Hyderabad and Others v. B. Karunakar and Others [1993] Supp. 2
SCR 576 : (1993) 4 SCC 727; Union of India and Others v. Mohd.
Ramzan Khan [1990] Supp. 3 SCR 248 : (1991) 1 SCC 588; K.
Madhava Reddy and Others v. State of Andhra Pradesh and Others
[2014] 7 SCR 348 : (2014) 6 SCC 537; Justice Chandrashekaraiah
(Retired) v. Janekere C. Krishna and Others [2013] 3 SCR 987 :
(2013) 3 SCC 117; Union of India v. I.P. Awasthi and Others (2015)
17 SCC 340; Union of India and Another v. Ganpati Dealcom
Private Limited [2024] 10 SCR 2183 : (2023) 1 SCC 315; Saurabh
Chaudri (Dr.) and Others v. Union of India and Others [2004] Supp.
2 SCR 611 : (2004) 5 SCC 618; Saurabh Chaudri v. Union of India
[2003] Supp. 5 SCR 152 : (2003) 11 SCC 146; Jarnail Singh and
Others v. Lachhmi Narain Gupta and Others [2022] 19 SCR 711 :
(2022) 10 SCC 595; M. Nagaraj v. Union of India [2006] Supp. 7
SCR 336 : (2006) 8 SCC 212; M.A. Murthy v. State of Karnataka
[2003] Supp. 3 SCR 327 : (2003) 7 SCC 517; State of Kerala and
Others v. Alassery Mohammed and Others [1978] 2 SCR 820 :
(1978) 2 SCC 386; Rajal Das Guru Namal Pamanani v. State of
Maharashtra [1975] 2 SCR 886 : (1975) 3 SCC 375; Rao Shiv
Bahadur Singh and Another v. State of Vindhya Pradesh [1953]
[2025] 4 S.C.R. 841

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

1 SCR 1188 : (1953) 2 SCC 111; Soni Devrajbhai Babubhai v.
State of Gujarat [1991] 3 SCR 812 : (1991) 4 SCC 298; Central
Bureau of Investigation v. R.R. Kishore [2023] 13 SCR 1 : (2023)
15 SCC 339; Subramanian Swamy v. Director, Central Bureau
of Investigation and Another [2014] 6 SCR 873 : (2014) 8 SCC
682; Food Inspector, Calicut Corporation v. Cherukattil Gopalan
and Another [1971] Supp. 1 SCR 721 : (1971) 2 SCC 322; Anant
Prakash Sinha v. State of Haryana and Another [2016] 2 SCR
128 : (2016) 6 SCC 105; Nallapareddy Sridhar Reddy v. State
of A.P. [2020] 1 SCR 1116 : (2020) 12 SCC 467; Sohan Lal and
Others v. State of Rajasthan [1990] 3 SCR 809 : (1990) 4 SCC
580 – referred to.
Dev Narain v. State of U.P. and Another, 2023 SCC OnLine All
3216; Rajesh Sharma v. Union of India, 2009 SCC OnLine Del
1330; Rajender Gupta v. State, 2005 SCC OnLine Del 873;
Deepak Kumar Suthar v. State of Rajasthan (1999) 2 Raj LR 692
(FB) – referred to.
Victor Linkletter v. Victor G. Walker, 1965 SCC OnLine US SC
126; Center School Township v. State, 150 Ind. 168; Mapp v. Ohio,
367 U.S. 643 – referred to.

Books and Periodicals Cited
P. Ramanatha Aiyar’s Advanced Law Lexicon; Law Lexicon
(6th ed.) – referred to.

List of Acts
Narcotic Drugs and Psychotropic Substances Act, 1985; Drugs and
Cosmetics Act, 1940; Narcotic Drugs and Psychotropic Substances
Rules, 1985 ; Drugs and Cosmetics Rules, 1940; Code of Criminal
Procedure, 1973.

List of Keywords
Buprenorphine Hydrochloride; Injectable preparation of
Buprenorphine; Psychotropic substance; Alteration of charge;
Bunogesic injection; Discharge/deletion of charge; Health and
welfare of mankind; Public health and social welfare; Convention
on Psychotropic Substances, 1971; United Nation Convention on
Psychotropic Substances, 1971; Single Convention on Narcotic
Drugs, 1961; United Nations Convention against the Illicit Traffic in
842 [2025] 4 S.C.R.

Supreme Court Reports

Narcotic Drugs and Psychotropic Substances of 1988; Very limited
medical purposes; Medical or scientific purpose; Nova Constitutio
Futuris Forman Imponere Debet, Non Praeteritis; Prospective
overruling; Blackstonian rule; Extended facet of stare decisis;
International Convention on Drugs and Psychotropic Substances;
International Drug Control Convention framework; Decision in
Sanjeev V. Deshpande’s case; Prospective effect; Technically guilty;
Treatment of Psychotropic substances mentioned in Schedule to
the NDPS Act and not in Schedule I of the NDPS Rules; If Sanjeev
Deshpande’s judgment operative with prospective effect; Rule of
retrospectivity; Doctrine of precedent; Retrospective applicability
of Sanjeev Deshpande judgment.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1319 of 2013
From the Judgment and Order dated 13.07.2011 of the High Court
of Delhi at New Delhi in CRRP No. 494 of 2007
With
Criminal Appeal No. 272 of 2014

Appearances for Parties
Advs. for the Appellant:
Vikramjit Banerjee, ASG, Ms. Ruchi Kohli, Sr. Adv., Prashant Rawat,
Ms. Srishti Mishra, S.K. Tyagi, G.S. Makkar, B. Krishna Prasad,
Ms. Ruchi Kohli, Vatsal Joshi, Anuj Srinivas Udupa, Sarthak Karol,
Arvind Kumar Sharma.
Advs. for the Respondents:
Yash Pal Dhingra, Deepak Goel, Jitendra Bharti, Ms. Alka Goyal.

Judgment / Order of the Supreme Court

Judgment

J.B. Pardiwala, J.

For the convenience of exposition, this judgment is divided into the
following parts:
[2025] 4 S.C.R. 843

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

INDEX*

A. FACTUAL MATRIX ............................................................. 3
i. Criminal Appeal No. 1319 of 2013 ............................. 3
ii. Criminal Appeal No. 272 of 2014 ............................... 16
B. SUBMISSIONS OF THE PARTIES ..................................... 22
i. Submissions on behalf 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
c. Analysing the treatment of substances mentioned
in the Schedule to the Act and not in Schedule I of
the Rules by previous decisions of this Court. ........ 58
d. The provisions of the NDPS Act and its Rules are
“in addition to” the D&C Act and the Rules made
thereunder. ................................................................ 87
ii. Whether the decision in Sanjeev V. Deshpande
(supra) should operate with prospective effect? ....... 100
a. An overruling decision generally operates
retrospectively ........................................................ 100

* Ed. Note: Pagination as per the original Judgment.
844 [2025] 4 S.C.R.

Supreme Court Reports

b. The intention to make the decision prospectively
applicable or the application of the doctrine of
“prospective overruling” must be express and clear ... 105
c. The doctrine of “Prospective Overruling” and factors
which may lead to the application thereof. ............. 109
d. It would be open for another bench to subsequently
decide on the application of the doctrine of
prospective overruling to a past decision. ................ 131
e. Applicability or non-applicability of doctrine of
prospective overruling in criminal matters, so far. ...... 137
f. Article 20(1) considerations on the retrospective
applicability of the decision in Sanjeev V. Deshpande
(supra). .................................................................... 149
iii. The scope of Section 216 of the CrPC ...................... 172
a. What is the meaning of the expression “alter”
occurring in Section 216 CrPC. ............................... 177
b. Whether charges could be deleted or the accused
be discharged under Section 216 CrPC .................... 180
E. CONCLUSION ..................................................................... 185

1. Since the issues raised in both the captioned appeals are the same,
those were taken up for hearing analogously and are being disposed
by this common judgment and order.
2. These appeals arise from the Judgment and 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
[2025] 4 S.C.R. 845

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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,
Office Complex, Jhandewalan Extn., Cycle Market, New Delhi.
The further information was that the injections had been illegally
manufactured and cleared by M/s. Win Drugs Ltd., Bhiwani Road,
Jind, Haryana and that a few injections along with the raw materials
of Buprenorphine could also be found at that location. Two teams of
DRI(HQ) officers were deputed – one team to undertake the search
of the premises in Delhi and another team who coordinated their
action with the office of Central Excise Commissionerate, Rohtak
(hereinafter, the “CEC”) for the purpose of search at the premises
of Win Drugs Ltd. at Jind, Haryana.
4. On the same day, i.e., 27.09.2003, at around 08:15 pm, the DRI(HQ)
officers visited the premises in Delhi with a search authorisation
under Section 41 of the NDPS Act along with two witnesses. It is
stated that upon entering the premises, Raj Kumar Arora (hereinafter,
“respondent no. 1”) who was the proprietor of M/s Kanishka Cargo
Service, was present in the office premises. The DRI(HQ) officers
recovered 25 corrugated card board cartons which contained small
packets, each having ten unlabelled glass ampoules with a water
coloured liquid, along with several sheets of printed labels which read
as “Buprenorphine Hydrochloride”. They also recovered one labelled
glass ampoule containing the same coloured liquid from the table
drawer of the respondent no. 1. Upon preparing a detailed inventory,
it was stated that 1 labelled and 40,000 unlabelled glass ampoules
containing Buprenorphine Hydrochloride which is a substance
listed in the Schedule to the NDPS Act were recovered. Since the
respondent no. 1 was unable to provide any permission or licence for
the possession of the recovered glass ampoules, they were seized
846 [2025] 4 S.C.R.

Supreme Court Reports

under the provisions of the NDPS Act. The samples were drawn
and the test memo was prepared in the presence of the respondent
no. 1 and the witnesses. On 27.09.2003, i.e., on the same day, the
officers of CEC, Rohtak are said to have seized 23400 injections of
Buprenorphine along with 100 grams of Buprenorphine in its powder
form, from M/s Win Drugs Ltd at Jind, Haryana as well.
5. In response to the summons issued, the respondent no. 1 appeared
and is said to have made a voluntary statement in writing dated
28.09.2003 which mentioned that during the course of his business
as a customs clearing agent, he came in contact with one Mohd.
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
ampoules of Buprenorphine and enquired whether the respondent no.
2 could procure one lakh ampoules of Buprenorphine manufactured
by Neon Laboratories Ltd. or in the alternative, procure unlabelled
drug ampoules of a similar size and shape having a red ring on the
neck of the ampoules for him. Mohd. Abdul is said to have given an
advance of Rs. 2,50,000. The respondent no. 2, thereafter, contacted
the respondent no. 1 for the purpose of procuring the same and paid
him the advance amount he had received along with three samples
of the drug which he had obtained from Mohd. Abdul. Initially, 2,000
and 10,000 ampoules respectively, were procured and delivered.
[2025] 4 S.C.R. 847

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

On 27.09.2003, the respondent no.1 informed the respondent no.2
that another consignment of 40,000 ampoules had been received
by him at his office. When the respondent no.2 tried to contact the
respondent no. 1 at around 09:15 pm, on the same day, he came to
know of the fact that the office premises of respondent no. 1 had been
raided by a government agency. The respondent no. 2 further stated
that upon complete delivery of one lakh ampoules, Mohd. Abdul had
promised to give him an additional amount of Rs. 25,000. In light of
the same, on 13.11.2003, the respondent no. 2 was also arrested for
having committed the offence punishable under Sections 22 and 29
of the NDPS Act respectively and was remanded to judicial custody.
8. In the meanwhile, the DRI officers of the Mumbai Zonal Unit
visited the premises of M/s Sarvodaya Enterprises, which is run
by the respondent no. 3 and during the search recovered certain
documents in the presence of witnesses. The respondent no. 3 was
then summoned. He gave a voluntary statement dated 03.12.2003
stating that as a part of his business, his company had bought
Buprenorphine in its powder form from M/s Pioneer Agro Industries,
Mumbai and were selling the same to the manufacturers like M/s
Win Drugs Ltd. He further stated that he knew the respondent no. 1
since he used to clear their pharmaceutical import consignments on
a need basis. The respondent no. 3 further stated that he was the
one who had directed the respondent no.1 to contact Naresh Mittal
of M/s Win Drugs Ltd for the purchase of Buprenorphine injections
and that he had also spoken to Naresh Mittal in that regard despite
knowing that the respondent no. 1 did not possess any licence to
deal with the said psychotropic 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
848 [2025] 4 S.C.R.

Supreme Court Reports

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 for enquiry.
10. On 25.03.2004, a criminal complaint as regards the offence
punishable under Sections 22 and 29 of the NDPS Act respectively
was filed against the respondents by one Mr. R. Roy (hereinafter, the
“complainant”), an intelligence officer of the Directorate of Revenue
Intelligence, New Delhi, (hereinafter, the “appellant”) before the
Special Court for NDPS cases, New Delhi.
11. On 03.02.2005, the Special Court observed that Buprenorphine is
a psychotropic substance as per the Schedule to the NDPS Act
and its commercial quantity is fixed at 20 gms. The test memo as
regards the present seizure indicated that the contents of each of the
ampoules varied between 0.23 mg to 0.34 mg. On a consideration
of the above and the attendant circumstances, including that the
respondent no. 1 did not possess any permission or licence for
dealing in the substance and that all the respondents had conceded
to their involvement in the crime, the Special Judge held that a prima
facie contravention of Section 22 along with a case of conspiracy
under Section 29 of the NDPS Act was made out. The Special Judge
was also prima facie of the view that meticulous examination of the
evidence is not required to be assessed at the stage of framing of
charge and a mere strong suspicion of involvement in the crime is
sufficient. Stating so, charge was directed to be framed. The charge
was formally framed by the Special Judge on 08.02.2005.
12. The respondents applied for bail before the Special Judge and the
same was declined. However, the High Court vide a common Judgment
and Order dated 11.01.2005 granted bail to the respondent no. 3
along with several others. The respondent nos. 1 and 2 respectively,
had also moved the High Court for bail and vide a common Judgment
and Order dated 22.08.2005, the High Court stated that no offence
under the NDPS Act was made out and directed that the respondent
nos. 1 and 2 be released on bail upon furnishing a personal bond
in the sum of Rs. 25,000 with one surety of the like amount to the
[2025] 4 S.C.R. 849

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

satisfaction of the concerned trial court. The High Court in its common
Judgement and Order dated 22.08.2005 had framed two questions
of law for the purpose of considering the plea for bail – (a) Whether
Buprenorphine Hydrochloride is a “psychotropic substance” within the
meaning of the NDPS Act?, and (b) If yes, whether Buprenorphine
Hydrochloride is 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 Act and that no offence
under the NDPS Act and its rules was made out, would not have
any persuasive effect when the matter would be finally considered
before the Special Judge on merits.
14. The respondents thereafter preferred an application under Section
216 of the Code of Criminal Procedure, 1973 (hereinafter, the “CrPC”)
before the Special Judge for amendment/alteration of charge. Before
filing the application under Section 216 CrPC, the respondent no.
3 had filed a Criminal Revision Petition No. 204 of 2005 before the
High Court challenging the order dated 03.02.2005 and 08.02.2005
respectively, which framed charge against the respondents herein.
Vide judgment and order dated 01.08.2006, the High Court disposed
of the petition by observing that the application under Section 216
pending before the Special Judge shall be decided first before the
matter is proceeded with. The relevant observations are as follows:
850 [2025] 4 S.C.R.

Supreme Court Reports

“This revision petition is directed against the order on
charge dated 03.02.2005 as well as the formal charge
framed on 08.02.2005 against the petitioner under Section
29 of the Narcotic Drugs And Psychotropic Substances
Act, 1985. Mr. Sud, the learned Senior counsel for the
petitioner has pointed out that the main issue involved in
the present case is whether Buprenorphine Hydrochloride
I.P. would be a psychotropic substance covered under the
NDPS Act and Rules. According to Mr. Sud, this matter has
been considered by this Court in the case of R Gupta v
State: 123 (2005) DLT 55. This decision came after the
order which is impugned in the present proceedings
was passed. Mr. Sud, also submitted that he had moved
an application under Section 216 of Code of Criminal
Procedure 1973 for amendment/alteration of the charge.
That application, I have been told, is pending before the
learned Additional Sessions Judge.
In these circumstances it would be appropriate if the
application under Section 216 of the Code of Criminal
Procedure which has been filed by the petitioner is disposed
of taking into account, inter alia, the said decision of this
Court. While disposing of the application under Section
216 Code of Criminal Procedure, the learned Sessions
Courts shall not be influenced by what has been held in the
impugned order and shall consider the entire issue afresh.
The Learned Sessions Court shall decide the application
under Section 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
[2025] 4 S.C.R. 851

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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 has placed on record one order passed by Sh.
N. K. Gupta, Special Judge in the matter, Manoj Kumar
Gupta Versus State of NCT and said discussed above,
since offence is made out under D & C Act which are triable
by Ld. MM and not by the Court of Sessions. Accordingly,
the matter was remanded back to Ld. ACMM to dealt with
the judgment in accordance with law. Since Ld. Counsel
for the DRI could not place any other material on record
to come out with a different view that Buprenorphine
Hydrochloride is covered under NDPS Act or Rule. It
remains a substance to be dealt under D & C Act or Rules,
Previous case of Manoj Kumar Gupta Versus State of
NCT with similar allegations were ordered to be charged
and tried under D & C Act and Rules and so it has to face
the same consequences and not to be dealt differently.
13. In these circumstance of the matter, I allow the
application of the accused U/s 216 of Cr. P.C. and say
that the charge framed by my Ld. Predecessor dated
08.02.2005 for the offence under NDPS Act is not made
out against them and it has to be a case under D & C
Act which are triable by Ld. MM and not by the court of
Sessions. Accordingly, let the file be sent to Ld. ACCMM,
New Delhi for further proceeding in accordance with law by
herself or by assigning it to any other court of competent
jurisdiction. The accused is directed to appear before Ld.
ACMM on 11.12.2006. The file be sent immediately to
the said Court.”
16. Aggrieved by the aforesaid order dated 30.11.2006 passed by the
Special Judge, the appellant preferred Criminal Revision Petition No.
852 [2025] 4 S.C.R.

Supreme Court Reports

494 of 2007. Vide judgment and order dated 13.07.2011, the High
Court dismissed the revision petition. The High Court followed the
rationale adopted by this Court in State of Uttranchal v. Rajesh
Kumar Gupta reported in (2007) 1 SCC 355 wherein it was observed
that if any particular drug does not find mention in the Schedule I
appended to the NDPS Rules, then the provisions of Section 8 of the
NDPS Act would have no application whatsoever. On the question
of the respondents being discharged under Section 216 CrPC, the
High Court remarked that it would not be right to say that the Special
Judge had discharged the respondents. The matter was accordingly
remitted to the Metropolitan Magistrate to proceed in accordance
with the provisions of the D&C Act. The relevant observations have
been reproduced 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 the conclusion that if
the drugs did not find place in Schedule-I appended to the
Rules, the provisions of Section 8 of the NDPS Act would
have no application whatsoever. This, of course, was in
[2025] 4 S.C.R. 853

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

the context of phenobarbitone which was also a Schedule
‘H’ drug under the Drugs and Cosmetics Rules, 1945. Mr
Malhotra, as pointed out above, wanted us to ignore this
decision because, according to him, it did not lay down the
law or settle the issue inasmuch as the Supreme Court
was only concerned with a bail order and consequently
was required to take a prima facie view. We are not
impressed by this argument advanced by Mr Malhotra.
The aforementioned detailed narration concerning the said
decision indicates that the Supreme Court had specifically
gone into the issue and had interpreted the provisions of
the NDPS Act as well as the NDPS Rules. Mr Malhotra,
the learned ASG, is asking us to shut our eyes to the
clear dictum of the Supreme Court which is before us in
black and white. We cannot do that. The Constitutional
scheme of things which sets out the judicial hierarchy
does not permit us to do that. Mr Malhotra submitted that
the observations in Rajesh Kumar Gupta (supra) are in
the nature of obiter dicta and do not constitute the ratio
of the said decision [...].

xxx xxx xxx
28. From these decisions, it is clear that, in the first place,
the observations with regard to the provisions of the NDPS
Act and the NDPS Rules in Rajesh Kumar Gupta (supra)
cannot be construed as obiter dicta. This is so because
the discussion and conclusion with regard to the said
provisions as appearing in Rajesh Kumar Gupta (supra)
cannot be regarded as unnecessary to the decision.
29. Secondly, even if we assume for the sake of argument
that the observations are in the nature of obiter dicta, they
are normally binding on the High Courts in the absence
of any direct pronouncement on that question by the
Supreme Court. There is no other direct pronouncement
of the Supreme Court on this issue and, therefore, even
if the observations are regarded as obiter dictum, they
would be binding on this Court.
30. Thirdly, apart from this, even if it is assumed that
the observations of the Supreme Court in Rajesh Kumar
854 [2025] 4 S.C.R.

Supreme Court Reports

Gupta (supra) are not binding on us, the said observations
will, in the least, be required to be construed as having
considerable weight 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.”
(Emphasis supplied)

17. In such circumstances referred to above, the appellant is here before
this Court with the present appeal.

ii. Criminal Appeal No. 272 of 2014
18. On 07.10.2004, the Delhi Zonal Unit of the Narcotics Control Bureau
(hereinafter, the “NCB”) received an information from the Ahmedabad
Zonal Unit that they had recovered and seized 50,000 ampoules of
Buprenorphine and during the course of their investigation it was
revealed that a huge quantity of these ampoules was also supplied
by M/s Rusan Health Care Ltd. to their stockists in Delhi. One Monish
Nayyer the proprietor of M/s Belsons was summoned in this regard.
[2025] 4 S.C.R. 855

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

M/s Belsons had originally distributed the said ampoules to M/s
Rusan Health Care Ltd. In his statement, he disclosed that his firm
had a drug licence and therefore, they had received large quantities
of the said psychotropic substance from their suppliers out of which
the major chunk was sold to one M/s International Drugs. Sajesh
Sharma (hereinafter, the “respondent no. 1” had taken delivery
of the substance on behalf of M/s International Drugs. Pursuant to
this information, summons were issued to the respondent no. 1 who
admitted that his firm was selling the ampoules of Buprenorphine
Hydrochloride/bunogesic injections after purchasing them from M/s
Belsons with a valid invoice. The respondent no. 1 then stated that he
had sold 2,50,400 injections to a person named Shakeel without an
invoice or consignment note as required under Rule 67 of the NDPS
Rules and that he was not aware whether Shakeel had a valid drug
licence or permission in accordance with law. In the absence of any
further information on Shakeel, it is the case of the appellant that no
further action could be taken against him. However, on 09.10.2004,
the respondent no. 1 was arrested and remanded to judicial custody.
19. On 02.03.2005, the appellant through its Intelligence Officer filed
a complaint against the respondent no. 1 under Sections 8(c)
and 22(c) of the NDPS Act respectively and on 04.05.2005, upon
a prima facie case being made against the accused, a charge for
the offence under Section 22(c) was framed. On 28.11.2006, in the
midst of the trial and during the stage of recording evidence, the
respondent filed an application under Section 216 CrPC drawing
the attention of the Special Judge to the decision rendered by the
Delhi High Court in Rajender 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
856 [2025] 4 S.C.R.

Supreme Court Reports

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 this
Court in Rajesh Kumar Gupta (supra). Therefore, the application
dated 06.07.2009 made by the appellant was rejected. In the same
breath, the Special Judge held that Buprenorphine Hydrochloride is
a Schedule “H” drug under the D&C Act read with its Rules. Despite
it being a psychotropic substance under the NDPS Act, it was not
included in Schedule I of the NDPS Rules. That being the case,
dealing in the said substance is not prohibited under the NDPS Act
and the offence under Sections 8 and 22 of the NDPS Act respectively,
were not made out. However, it was observed that the respondent
no. 1 was involved in the illegal sale of the said substance since
no record had been maintained in that regard. In such a scenario,
the case was remanded to the Court of the Metropolitan Magistrate,
Delhi to deal with in accordance with law. The relevant observations
of the Special Judge are reproduced hereinbelow:
“19. There is no order of the stay of proceedings under
the NDPS Act in this case by the Apex Court or in any
other case on this issue. The operation of the judgment in
Rajender Gupta’s case supra has not been stayed by the
Supreme Court. Further Rajender Gupta’s decision had
been considered and dealt with by the Supreme Court
in Rajesh Kumar Gupta case supra where the Supreme
Court has specifically approved of the same. In that case
the Supreme Court had made observations with regard
to the legal question. The Supreme Court has given
its conclusive verdict thereon. Keeping this view in the
matter I do not find any merit in the application. Same is
accordingly dismissed.

xxx xxx xxx
27. Section 36 of the Act provides for constitution of special
courts for providing speedy trial of offences under NDPS
Act. The Special Courts are authorised to take cognizance
[2025] 4 S.C.R. 857

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

of the case without its commitment by a Magistrate. The
offences committed under NDPS Act are to be tried by
the court of sessions. Section 80 of the Act provides that
the provisions of this Act or the rules made thereunder
shall be in addition and not in derogation of, the Drugs
and Cosmetics Act 1940 or the Rules made thereunder.
The cases under Drugs and Cosmetics Act are triable by
the Court of Metropolitan Magistrate. The provisions of
the Code of Criminal Procedure are applicable besides
the provisions contained in the NDPS Act. Section 228
of the code of Criminal Procedure 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 Section 8 of the NDPS Act is not made out.
Obviously, punishment under Section 22 of the NDPS Act
is also not attracted.
29. In the present case, the accused has not maintained
any record by way of consignment/ Form VI. He is involved
in illegal sale of Buprenorphine Hydrochloride, a Schedule
‘H’ drug. As per CRCL report, the samples gave positive for
the test of the Buprenorphine. Thus it being Schedule ‘H’
858 [2025] 4 S.C.R.

Supreme Court Reports

drug, it would fall within the rigors of Drugs and Cosmetics
Act and Rules.
30. The offences under Drugs and Cosmetics Act and Rules
are triable by the court of Metropolitan Magistrate and not
by the Special Hon’ble or Court of Sessions. As such this
case is remanded to Ld Chief Metropolitan Magistrate,
Delhi to deal with the case in accordance with law. Ld
CMM may also assign the case to any other Metropolitan
Magistrate as may deem fit. It is made clear that question
of limitation would not stand in the present case.
Parties are directed to appear before Ld CMM on
07.05.2010.”
(Emphasis supplied)

22. Aggrieved by the aforesaid order, the appellant preferred a Criminal
M.C. No. 2335 of 2010 under Section 482 of the CrPC before the
High Court. However, vide impugned Judgement and Order dated
20.03.2013, the High Court dismissed the petition being devoid of
any merit and observed as thus:
“14. It is true that in Rajinder Gupta the learned Single
Judge had taken the view while dealing with the bail
application. The reasoning, however, as stated by me
earlier fully applies even while dealing with the question
whether the person is guilty for the offence punishable
under Section 22 of the NDPS Act.
15. In this view, I also find support from another judgment
of the Coordinate Bench of this Court in DRI v. Raj Kumar
Arora & Anr. where relying on Rajinder Gupta and Rajesh
Kumar Gupta, the learned Single Judge of this Court
held that a person found in possession of Buprenorphine
Hydrochloride will not be guilty under Section 22 of the
NDPS Act.
16. In view of the foregoing discussion, the Petition is
devoid of any merit; the same is accordingly dismissed.
17. Pending Applications stand disposed of.”
(Emphasis supplied)
[2025] 4 S.C.R. 859

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

23. In such circumstance referred to above, the appellant is here before
this Court with the present appeal.

B. SUBMISSIONS OF THE PARTIES

i. Submissions 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 Rules and owing to
it being a Schedule H drug under the D&C Act and its Rules, the
offence under Section 8 of the NDPS Act would not be made out.
Consequently, it was observed that the accused cannot be punished
under Sections 22 and 29 of the NDPS Act respectively. Being
aggrieved by the aforesaid observation made by the High Court,
the appellant filed a Special Leave Petition against both the orders
granting bail to the respondents and this Court vide its order dated
31.03.2006 had clarified and directed that the observations made by
the High Court shall not have any binding effect when the matter is
finally considered before the Special Judge on merits.
26. It was further submitted that the High Court committed an error in
placing reliance on the decision in State of Uttaranchal vs. Rajesh
Kumar Gupta reported in 2007 (1) SCC 355 as the said decision is
860 [2025] 4 S.C.R.

Supreme Court Reports

not applicable to the facts of the present case. In the said case, the
accused who possessed an Ayurveda Shashtri Degree was running
a clinic while being assisted by eight other medical practitioners
who were Allopathic and Ayurvedic doctors. A total of 7 medicines
were seized and all of them were mentioned in Schedules G & H
of the D&C Rules and the same were said to be used for medical
purposes. However, in the present case, the contraband found in
the illegal possession of the respondent no. 1 was without any
label. Furthermore, the respondents are neither registered medical
practitioners nor were they able to produce any document, permit
or license to deal with said substances or medicines.
27. It was vehemently submitted that the High Court had erred in holding
that Rules 53 and 64 of the NDPS Rules respectively, only pertain to
the psychotropic substances mentioned in Schedule I to the NDPS
Rules and since Buprenorphine Hydrochloride is a psychotropic
substance mentioned in the Schedule to the NDPS Act but not in
Schedule I to the NDPS Rules, the offence under the NDPS Act
would not be made out. It was argued that the said observation
was contrary to the subsequent judgement passed by this Court
in Union of India & Anr. Vs. Sanjeev V. Deshpande reported in
2014 13 SCC 1, wherein it has been clearly held that the prohibition
under 8 of the NDPS Act is attracted in respect of the psychotropic
substances listed in Schedule to the NDPS Act as well as Schedule I
to the NDPS Rules framed under the Act. 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
[2025] 4 S.C.R. 861

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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 subsequent to bail
being granted, the respondents, as a clever device, filed an application
under section 216 of the CrPC, seeking alteration of charges. The
Special Judge, in complete disregard to the direction passed by this
Court, allowed the application and held that the offence under the
NDPS Act is not made out qua all the respondents, and that the
case rather pertains to the D&C Act. Such an order could not be said
to be in tune with the judgement rendered by this Court in K. Ravi
vs. State of Tamil Nadu & Anr. reported in (2024) SCC OnLine
SC 2283, wherein it was specifically held that Section 216 of the
CrPC does not entitle the accused to file a fresh application seeking
discharge, once the charges have been framed by the Court. It was
further stated therein that an application under Section 216 CrPC is
sometimes filed due to the ignorance of law and also with an aim
to deliberately delay the trial proceedings. In the present case, the
application filed under Section 216 CrPC was absolutely misconceived
and was with a sole intent to derail the trial proceedings.

b. Criminal Appeal No. 272 of 2014
31. Mr. Arvind Kumar Sharma, the learned counsel appearing on behalf
of the appellant herein adopted the submissions canvassed by the
learned ASG. In addition, the counsel submitted that there is nothing
to indicate that Rule 64 is the “governing rule” under Chapter VII
of the NDPS Rules and since Rule 64 pertains only to Schedule I
substances, all the other rules must also necessarily apply to Schedule
I substances. The language of Rules 66 and 67 respectively, is
unambiguous and they clearly apply to “any psychotropic substance”
which cannot be read to exclude the substances which only find
mention in the Schedule to the NDPS Act. Furthermore, Rules 65
and 66 respectively, adopt the provisions of the D&C Rules rather
than excluding it. Therefore, the resultant effect must be that the
contravention of the D&C Rules would ipso facto tantamount to a
violation of Rules 65 and 66 of the NDPS Rules respectively, thereby
attracting punishment under the NDPS Act.
32. It was submitted that certain drugs are regulated by both the NDPS
Act and the D&C Act simultaneously since they can be used as
both psychotropic substances as well as medicinal drugs in view
862 [2025] 4 S.C.R.

Supreme Court Reports

of their narcotic properties. This does not necessarily mean that an
accused would be absolved of his guilt 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 would serve to cause immense prejudice to the
respondents who have already been discharged by the Special Judge.
36. It was submitted that the decision of the Delhi High Court in Rajesh
Sharma (supra) cannot be said to be inapplicable solely because it
was rendered in the context of a bail application. It was submitted
that while dealing with an application for bail under the NDPS Act,
the Court must get over the rigour contained in Section 37(1)(b)(ii)
of the NDPS Act. Therefore, only after giving an opportunity to the
Public Prosecutor and recording a satisfaction to the effect that there
are reasonable grounds for believing that the accused is not guilty
of such offence, a decision to grant bail is arrived at. Hence, the
findings rendered in a bail application are also extremely relevant
while deciding the question whether an offence under Section 8 of
the NDPS Act is made out or not.
37. In the last, the counsel submitted that there being no merit in the
appeals, those may be dismissed.
[2025] 4 S.C.R. 863

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

C. ISSUES FOR DETERMINATION
38. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the following questions
fall for our consideration:
I. Whether the production, manufacture, possession, sale,
purchase, transport, warehouse, use, consumption, import inter-
State, export inter-State, import into India, export from India
or transhipment of a psychotropic substance which is listed
under the Schedule to the NDPS Act but not mentioned under
Schedule I of the NDPS Rules would constitute an offence
under Section 8(c) of the NDPS Act?
II. Whether the decision of this Court in Sanjeev V. Deshpande
(supra) must operate with prospective effect?
III. Once, the charge has been framed by a competent court under
Section 228 of the CrPC, can an accused thereafter seek for
discharge/deletion of a particular offence from the charge under
Section 216 CrPC?

D. ANALYSIS

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.

a. Object of the NDPS Act and the United Nations Convention
on Psychotropic Substances, 1971.
39. Before we advert to the rival submissions canvassed on either
side, it would be apposite to first 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
864 [2025] 4 S.C.R.

Supreme Court Reports

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, illicit traffic in narcotic
drugs and psychotropic substances, to implement the
provisions of the International Convention on Narcotic
Drugs and Psychotropic Substances, Parliament enacted
the NDPS Act in the year 1985. This is a special Act and it
has been enacted with a view to make stringent provisions
for the control and regulation of operations relating to the
narcotic drugs and psychotropic substances [...]”
(Emphasis supplied)

41. Another decision of this Court in Hira Singh v. Union of India reported
in (2020) 20 SCC 272 opined that while determining the “small or
commercial quantity” of the narcotic drug or psychotropic substance
in cases of seizure of a mixture of narcotic drugs or psychotropic
substances with one or more neutral substances, the quantity of the
neutral substance(s) is not to be excluded and is to be taken into
consideration along with the actual content by weight of the offending
drug. While declaring so, the Court also discussed the object of
the NDPS Act and highlighted that the enactment was intended to
be a deterrent against the use of narcotic drugs and psychotropic
substances. The relevant observations are reproduced below:
“10. [...] As per the Preamble of the NDPS Act, 1985,
it is an Act to consolidate and amend the law relating
to narcotic drugs, to make stringent provisions for the
control and regulation of operation relating to narcotic
drugs and psychotropic substances. To provide for forfeiture
of the property derived from or use in illicit traffic in Narcotic
Drugs and Psychotropic Substance. The Statement of
[2025] 4 S.C.R. 865

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

Objects and Reasons and the Preamble of the NDPS Act
imply that the Act is required to act as a deterrent and the
provisions must be stringent enough to ensure that the
same act as deterrents.

xxx xxx xxx
10.5. The problem of drug addicts is international and
the mafia is working throughout the world. It is a crime
against the society and it has to be dealt with iron hands.
Use of drugs by the young people in India has increased.
The drugs are being used for weakening of the nation.
During the British regime control was kept on the traffic
of dangerous drugs by enforcing the Opium Act, 1857the
Opium Act, 1875 and the Dangerous Drugs Act, 1930.
However, with the passage of time and the development in
the field of illicit drug traffic and during abuse at national and
international 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 ultimately
frustrate the object, purpose and Preamble of the Act [...].”
(Emphasis supplied)
866 [2025] 4 S.C.R.

Supreme Court Reports

42. There exist three Conventions (collectively referred to as the
“International Drug Control Conventions”) under the auspices of the
United Nations which form the current normative framework for the
control of narcotic drugs, psychotropic substances and precursor
chemicals. They are :- The Single Convention on Narcotic Drugs,
1961; The Convention on Psychotropic Substances of 1971; and
the United Nations Convention against the Illicit Traffic in Narcotic
Drugs and Psychotropic Substances of 1988. India has acceded to
and is therefore, a party to the abovementioned International Drug
Control Convention framework.
43. The Preamble to the Convention on Psychotropic Substances, 1971
(hereinafter, the “Convention”), elucidates that the Convention was
adopted keeping in mind the primary concern as regards the health
and welfare of mankind along with the public health and social
problems which arise as a result of abuse of certain psychotropic
substances. It called for a collective and determinative action from
all States to prevent and combat the abuse of such substances and
the rise in illicit trade thereof. Rigorous measures were considered
necessary to restrict the use of psychotropic substances to legitimate
purposes while simultaneously acknowledging that their use for
medical and scientific purposes must not be unduly restricted or
curtailed. The Convention is annexed with four Schedules containing
controlled psychotropic substances, where arguably, Schedule I
substances are the most restricted while Schedule IV substances
are the least restricted.
44. Article 1(e) of the Convention defines a “psychotropic substance”
as any substance, natural or synthetic, or any natural material in
Schedules I, II, III or IV of the Convention. Article 4 provides that,
as regards the substances other than those mentioned in Schedule
I i.e., in Schedule II, II and IV respectively, the States may permit –
(a) the carrying by international travellers of small quantities of
lawfully obtained preparations for personal use; (b) the use of such
psychotropic substances in industry for the manufacture of non-
psychotropic substances or products subject to the application of
control measures until the psychotropic substances come to be
in such a condition that they will not be abused 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
[2025] 4 S.C.R. 867

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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 to a
medical prescription except when being lawfully obtained, used,
dispensed or administered in the duly authorised exercise of
therapeutic or scientific functions.
46. In so far as the substances mentioned in Schedule I are concerned,
Articles 4 and 7 respectively state that their use shall be prohibited
except for scientific and very limited medical purposes, by duly
authorized persons in medical or scientific establishments, which
are either directly under the control of the government or specifically
approved by them. Such persons performing medical or scientific
functions must be required to maintain records concerning the
acquisition of the substances and the details of their use which must
be preserved for at least two years after the last use recorded therein.
States must also require that the manufacture, trade, distribution and
possession of Schedule I substances be under a special licence
or prior authorization and be closely supervised. The quantity of
Schedule I substances supplied to a duly authorised person must
also be restricted to such level as required for his authorized purpose.
The export and import of Schedule I substances shall be prohibited
except when both the exporter and importer are the competent
authorities or agencies of the exporting or importing country, or other
persons or enterprises which are specifically authorised for that
purpose. During the export and import as enumerated above, the
authorities or persons specifically authorized must have export and
import authorizations for the substances mentioned in Schedule I.
868 [2025] 4 S.C.R.

Supreme Court Reports

47. Article 11 elaborates on record-keeping and provides that – (a) In
respect of substances in Schedule I, manufacturers and all other
authorised persons under Article 7 shall maintain records indicating
the details of the quantity manufactured, the quantity held in stock
and, for each acquisition and disposal, the details of the quantity,
date, supplier and recipient; (b) In respect of substances in Schedules
II and III respectively, manufacturers, wholesale distributors,
exporters and importers must keep records showing details of
the quantity manufactured and, for each acquisition and disposal,
details of the quantity, date, supplier and recipient; (c) In respect of
substances mentioned in Schedule II, retail distributors, institutions for
hospitalization and care, and scientific institutions must 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 the number and date of the
import authorization and the authority by whom it has been issued.
Before an export authorization is issued, the States shall require
an import authorization issued by the competent authority of the
importing country or region which certifies that the importing of the
substance(s) referred to therein is approved and such an authorization
shall be produced by the person or establishment while applying
for the export authorization. A copy of the export authorisation is
to accompany each consignment and the government issuing the
export authorisation shall also send a copy to the government of the
[2025] 4 S.C.R. 869

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

importing country or region. When the importation has been effected,
the government of the importing country or region shall then return
the export authorization to the government of the exporting country or
region, with an endorsement certifying the amount of the substance
which has actually been imported.
49. With respect to the export of substances mentioned in Schedule III,
Article 12 states that exporters must draw up a declaration in triplicate,
on a form, which contains information including the name and address
of the exporter and importer, the international non-proprietary name
or the designation of the substance in the Schedule, the quantity and
the pharmaceutical form in which the substance is exported, the name
of the preparation, if any, and the date of despatch. Exporters must
furnish two copies of the declaration to the competent authorities of
their country or region and attach the third copy to their consignment.
Thereafter, the State from whose territory a Schedule III substance
has been exported, shall not later than 90 days after the date of
despatch, send to the competent authorities of the importing country
or region, one copy of the declaration received from the exporter
by registered mail with return of receipt requested. The States may
also require that after the consignment has been received, the
importer shall transmit the copy of the declaration accompanying the
consignment which has been duly endorsed stating the quantities
received and the date of the receipt, to the competent authorities of
the importing country or region.
50. On a conspectus of the aforementioned Articles of the Convention, it
can be seen that the substances mentioned in Schedules I, II, III and IV
respectively are subject to different 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.
870 [2025] 4 S.C.R.

Supreme Court Reports

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 shall be limited to medical and
scientific purposes in addition to the limited purposes as provided
in Article 4. The Convention casts a mandate upon States that the
manufacture of, trade in and distribution of Buprenorphine and its
salt Buprenorphine Hydrochloride be under a licence or other similar
control measure. The only exception being that such a licence or
other control measure need not necessarily apply to persons who
are duly authorised to perform therapeutic or scientific functions.

b. Relevant Statutory Provisions of the NDPS Act and its Rules
52. Section 2(xxiii) of the NDPS Act defines a “Psychotropic substance”
as –
“any substance, natural or synthetic, or any natural material
or any salt or preparation of such substance or material
included in the list of psychotropic substances specified
in the Schedule”
A bare reading of the definition would indicate that all items listed in
the Schedule to the Act along with its salts and preparations come
within the purview of a “psychotropic substance” under the NDPS Act.
53. Section 8 of the NDPS Act prohibits certain operations and reads
as thus:
8. Prohibition of certain operations.— No person shall -
(a) cultivate any coca plant or gather any portion of coca
plant;
or
(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
tranship 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
[2025] 4 S.C.R. 871

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

or the rules or orders made thereunder and in a case
where any such provision, imposes any requirement by
way of licence, permit or authorisation also in accordance
with the terms and conditions of such licence, permit or
authorisation:
Provided that, and subject to the other provisions of this
Act and the rules made thereunder, the prohibition against
the cultivation of the cannabis plant for the production of
ganja or the production, possession, use, consumption,
purchase, sale, transport, 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:
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 within the exception carved
out under Section 8, each of the conditions specified therein must
be satisfied. 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
872 [2025] 4 S.C.R.

Supreme Court Reports

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.
55. It is just not enough to prove or establish that the narcotic drug or
psychotropic substance is capable of being used for a medical or
scientific purpose. That would give unnecessary leeway to persons to
indiscriminately deal with narcotic drugs and psychotropic substances
under the garb that they could also be potentially used for medical or
scientific purposes. Moreover, several of these drugs and substances
are inherently of such a nature that they have widespread medicinal
and scientific applications. Therefore, an expansive interpretation
of the exception that the mere potential for usage of the narcotic
drug or psychotropic substance ,for medical or scientific purpose, is
sufficient would run counter to the object of the Act which seeks to
act as a deterrent to the widespread dealing in narcotic drugs and
psychotropic substances. What must, therefore, be proved to take
the benefit of the exception is that the narcotic drug or psychotropic
substances was being dealt in for a specified and real medical or
scientific purpose, in the manner and to the extent provided by the
provisions of the Act, the rules and orders made thereunder and, in
case such provisions imposes any requirement by way of licence,
permit or authorisation, in accordance with the terms and conditions
of such licence, permit or authorisation.
56. Therefore, if any psychotropic substance mentioned in the Schedule
to the Act is being dealt with for a purpose other than medical or
scientific purposes, an offence under Section 8(c) of the NDPS Act
would be made out. Furthermore, if any psychotropic substance
mentioned in the Schedule to the Act is being dealt with for a medical
or scientific purpose, but not in accordance with other provisions of
the Act, rules, orders or, the terms and 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:
[2025] 4 S.C.R. 873

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

“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
the foregoing power, such rules may—

xxx xxx xxx
(i) prescribe the forms and conditions of licences or permits
for the manufacture, possession, transport, import inter-
State, export inter-State, sale, purchase, consumption or
use of psychotropic substances, the authorities by which
such licences or permits may be granted and the fees that
may be charged therefor;
(j) prescribe the ports and other places at which any kind
of narcotic drugs or psychotropic substances may be
imported into India or exported from India or transhipped;
the forms and conditions of certificates, authorisations or
permits, as the case may be, for such import, export or
transhipment; the authorities by which such certificates,
authorisations or permits may be granted and the fees
that may be charged therefor.”
58. Section 76 of the NDPS Act also empowers the Central Government
to make rules for carrying out the purposes of the NDPS Act and
reads thus:
874 [2025] 4 S.C.R.

Supreme Court Reports

“76. Power of Central Government to make rules.—
(1) Subject to the other provisions of this Act, the Central
Government may, by notification in the Official Gazette,
make rules for carrying out the purposes of this Act.
(2) Without prejudice to the generality of the foregoing
power, such rules may provide for all or any of the following
matters, namely:—

xxx xxx xxx
(e) the conditions and the manner in which narcotic
drugs and psychotropic substances may be supplied
for medical necessity to the addicts registered with the
Central Government and to others under sub-section (1)
of section 71;

xxx xxx xxx
(h) any other matter which is to be, or may be, prescribed.”
59. The NDPS Rules, 1985, have been brought into being by the Central
Government in exercise of its powers under Sections 9 and 76 of
the NDPS Act, respectively referred to above. However, what must
necessarily be kept in mind is that the power conferred upon the
Central Government under Sections 9 and 76 of the NDPS Act,
respectively, is subject to Section 8 and this is evident by the use
of the phrase “subject to the provisions of Section 8” and “subject
to the other provisions of the Act” in both the provisions. Therefore,
the NDPS rules must not be understood as laying down standards
different from or inconsistent with the substantive provisions of the
NDPS Act, especially Section 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
[2025] 4 S.C.R. 875

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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 the NDPS rules
have undergone some significant changes over the years. However,
our inquiry would be limited to the version of the NDPS Rules as it
existed during the time the offence is alleged to have been committed
in the present case i.e., as on 27.09.2003.
61. Chapters VI and VII respectively, contain Rules 53 to 63 and 64 to
67 respectively. Under Chapter VI, Rule 53 provides for a general
prohibition and states that 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 appended
to the Rules” is prohibited. However, an exception to this general
rule was carved out under its first proviso by stating 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
purpose mentioned under Chapter VIIA. The expression “the drug
substance” mentioned in the proviso must naturally be read to mean
a “Schedule I substance” since the language of Rule 53 is phrased
such that it alludes to a Schedule I substance only. Therefore, in
short, the import and export of narcotic drugs and psychotropic
substances specifically mentioned under Schedule I of the Rules
is generally disallowed provided that person may import and export
them, with a valid import certificate or export authorisation, for the
limited purposes mentioned under Chapter VIIA.
62. Rule 55 on the ‘Application for an Import Certificate’ provides that,
subject to Rule 53 as enumerated above, no narcotic drug or
psychotropic substance specified in the “Schedule of the Act” shall
be imported into India without an import certificate, in respect of
the consignment, issued by the issuing authority, as per the form
appended to the Rules. Rule 57 on ‘Transit’ states that subject
to the provisions of Section 79 of the NDPS Act and Rule 53, no
consignment of any narcotic drug or psychotropic substance specified
876 [2025] 4 S.C.R.

Supreme Court Reports

in the “Schedule of the Act” shall be allowed to be transited through
India unless such consignment is accompanied by a valid export
authorisation in this behalf issued by the Government of the exporting
country. Rule 58 relating to the ‘Application for Export Authorisation’
provides that, subject to Rules 53 and 53A, no narcotic drugs or
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 authority in India. As regards the transit and transhipment of
any psychotropic substance (as listed in the Schedule to the Act) in
India, a valid export authorisation issued by the exporting country is
a requisite. On the other hand, what Rule 53 seeks to achieve is to
restrict the import and export of substances enumerated in Schedule I
of the Rules to a pre-determined set of purposes as explained under
Chapter VIIA, despite having obtained an import certificate or export
authorisation under the other rules of this Chapter. This provision i.e.,
Rule 53 relating to the Schedule I substances must not be flouted
and this is especially evident through the phrase “subject to Rule
53” featuring in almost every rule under this Chapter. It is therefore,
clear that, as far as import or export is concerned, the substances
mentioned in Schedule I appended to the Rules are more strictly
regulated or restricted in comparison to the larger list of psychotropic
substances mentioned in the Schedule to the Act. However, this is
not to say that the psychotropic substances mentioned only in the
[2025] 4 S.C.R. 877

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

Schedule to the Act are unregulated. Furthermore, it also cannot
be said that the substances mentioned in Schedule I of the NDPS
Rules are absolutely prohibited from being imported or exported as
per Section 8 of the NDPS Act since they are clearly allowed to be
validly imported and exported for the limited purposes enumerated
under Chapter VIIA.
64. Under Chapter VII, Rule 64 on ‘General Prohibition’ states that no
person shall manufacture, possess, transport, import inter-State,
export inter-State, sell, purchase, consume or use any of the
“psychotropic substances specified under Schedule I” of the Rules.
Rule 65 relating to the ‘Manufacture of psychotropic substances’,
under sub-rule (1), provides that, subject to the provisions of sub-
rule (2), the manufacture of any of the psychotropic substances other
than those specified in Schedule I (i.e., those mentioned only under
the Schedule to the Act) shall be in accordance with the conditions of
a licence granted under the Drugs and Cosmetics Rules, 1945 framed
under the Drugs and Cosmetics Act, 1940, by an authority in charge
of Drugs Control in a State appointed by the State Government in
this behalf. Sub-rule (2) states that the authority in charge of drugs
control in a State/the Licensing Authority shall consult the Drugs
Controller (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 case the
“psychotropic substances specified in Schedule I” are manufactured,
878 [2025] 4 S.C.R.

Supreme Court Reports

possessed, transported, imported inter-State, exported inter-State,
sold, purchased, consumed or used subject to other provisions of
this Chapter which apply to psychotropic substances which are not
included in Schedule I and for the purposes mentioned in Chapter
VIIA. The second proviso contemplates that the authority in charge
of drugs control in a State shall consult the Narcotics Commissioner
before issuing a licence under Rule 65 in respect of psychotropic
substances included in “Schedule I appended to the Rules” and
Schedule III appended to the Rules as well.
65. What can be discerned from the Rules 64 and 65 respectively,
elaborated hereinabove is that: First, the manufacture of all
psychotropic substances (as listed in the Schedule to the Act)
must be in accordance with the conditions prescribed in the licence
granted under the D&C Rules and the permissible quantity to
be manufactured would be intimated to the licensee at the time
the licence is issued. Notwithstanding the prohibition to deal in
psychotropic substances contained in Section 8(c) of the NDPS Act,
the manufacture thereof is permitted subject to compliance with the
D&C Act and its Rules. Secondly, there is a general rule absolutely
prohibiting the manufacture, possession, transport, import inter-State,
export inter-State, sale, purchase, consumption or use of any of the
psychotropic substances which find mention in Schedule I appended
to the Rules. However, the above activities can be done vis-á-vis
the substances mentioned in Schedule I appended to the Rules if
their manufacture, possession, transport, import inter-State, export
inter-State, sale, purchase, consumption or use is in accordance
with other provisions of the Chapter which generally apply to all
psychotropic substances (as listed in the Schedule to the Act) and for
the limited purposes mentioned under Chapter VIIA. In other words,
Schedule I substances can also be dealt in, in due compliance with
the rules applicable generally to all the psychotropic substances but
specifically only for the purposes mentioned under Chapter VIIA.
However, while issuing a licence of manufacture with respect to the
Schedule I substances, the Licensing Authority shall consult the
Narcotics Commissioner. Therefore, Rules 64 and 65 respectively,
permit the manufacture 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).
[2025] 4 S.C.R. 879

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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 (as listed in the
Schedule to the Act) for any of the purposes covered by the D&C
Rules, unless he is lawfully authorised to possess such substance
for any of the said purposes under these rules. Therefore, what
is being conveyed herein is that as far as substances mentioned
under Schedule I are concerned, they can be possessed only for
the purposes mentioned under Chapter VIIA, and as far as the other
substances not being Schedule I substances but which are listed
in the Schedule to the Act are concerned, they can be possessed
for the purposes mentioned under Chapter VIIA and also for other
purposes which necessarily fall under the broader considerations of
medical or scientific purposes as mentioned under Section 8 of the
NDPS Act. This compliance is in addition to the accused persons
possessing the said substances in accordance with the purposes
elaborated under the D&C Rules and the requirements thereunder.
Sub-rule (2), however, allows any research institution or a hospital
or a dispensary maintained or supported by the Government or local
body or by charity or voluntary subscription, which is not normally
authorised to possess the psychotropic substances under the D&C
Rules, or any person who is not so authorised under the D&C
Rules, to possess a reasonable quantity of such substance as may
be necessary for their genuine scientific or medical requirements or
both, for such period as is deemed necessary by the said research
institution or hospital or dispensary or person, as the case may be.
In case, of an individual person, possessing the substance for his
880 [2025] 4 S.C.R.

Supreme Court Reports

personal medical use, the quantity shall not exceed one 100 dosage
units at a time. The research institution, hospital and dispensary
referred to herein shall maintain proper accounts and records
in relation to the purchase and consumption of the psychotropic
substance in their possession.
67. Rule 67 on ‘Transport of psychotropic substance’ provides that,
subject to the provisions of Rule 64, no consignment of psychotropic
substance shall be transported, imported inter-State or exported inter-
State unless such a consignment is accompanied by a consignment
note appended to the Rules and in the manner provided under the
Rules. The consignor and consignee must keep the consignment note
for a period of two years and the said note may be inspected at any
time by an officer authorised in this behalf by 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 these rules and
such records are to be preserved for at least two years. Furthermore,
a narcotic drug or psychotropic substance may be supplied or
dispensed for use to a foreigner pursuant to a medical prescription
only from authorised licensed pharmacists or other authorised retail
distributors designated by authorities responsible for public health.
69. Upon a meticulous analysis of the NDPS rules relating to psychotropic
substances and analysing the purposes for which they are to be
[2025] 4 S.C.R. 881

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

dealt in, along with the requirements and procedures to be complied
with for each kind of dealing in the psychotropic substances, an
underlying idea resonates throughout these rules i.e., that any
dealing in the psychotropic substances mentioned under Schedule
I of the 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 finding a mention under
Schedule I of the Rules but listed in the Schedule to the Act must
also meet with 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 for other purposes,
provided that those purposes strictly fall under the larger umbrella
of “medical or scientific purposes” as provided for in Section 8 of
the NDPS Act. Whether the accused has dealt with it within the
confines of the expression “medical or scientific purposes” must
obviously be determined on the facts and circumstances of each
case. It can therefore be said that the substances under Schedule I
to the Rules are more strictly restricted compared to the remaining
psychotropic substances under the Schedule to the Act which are
restricted more moderately in comparison. On this aspect, our
scheme is more or less similar to the scheme of the Convention on
Psychotropic substances, 1971. The different levels in restriction
could be seen as the primary reason behind providing two different
schedules, i.e., one under the Act and another under the Rules.
Moreover, the Schedule to the Act can be considered as a superset
of all psychotropic substances wherein those substances mentioned
under Schedule I of the Rules form a small, more restricted subset
of the larger superset.

c. Analysing the treatment of substances mentioned in 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
882 [2025] 4 S.C.R.

Supreme Court Reports

“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 prosecution had, first, failed
to prove that the substance in question was a ‘manufactured drug’
falling within the definition given under Section 2(xi) of the NDPS
Act. Instead, it was observed that “Buprenorphine” is a substance
listed under Item 92 of the Schedule to the Act and is therefore, a
psychotropic substance. Secondly, this Court proceeded to examine
whether the possession of the said substance would constitute an
offence under Section 8 of the NDPS Act. Upon examining Rule 66
of the NDPS Rules, it was held that a person is permitted to keep
in his possession, for his personal medical use, a psychotropic
substance up to 100 dosage units at a time and the 6 ampoules
possessed by the appellant therein could not be said to exceed
the said limit of 100 dosage units. It was declared that, in such
circumstances, the conviction and sentence imposed on the
appellant was without the sanction of law and as a consequence,
the judgment of the High Court as well as the Sessions Court
was set aside. The relevant observations made by this Court are
reproduced hereinbelow:
“7. It is unnecessary for us to consider whether the said
substance is a narcotic drug as defined in the Act, for,
it is easily discernible from Item 92 of the Schedule to
the Act (which is a list of psychotropic substances) that
“Buprenorphine” is a psychotropic substance. We may
point out that the aforesaid Item 92 had been added to
the list of psychotropic substances by the notification
dated 26-10-1992. The offence in this case is alleged to
have been committed on 25-6-1994. We have therefore,
no doubt that the substance recovered from the appellant
is a psychotropic substance.
[2025] 4 S.C.R. 883

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

8. If it was “psychotropic substance” possession of the same
would amount to an offence only if it was in contravention
of Section 8 of the Act. That section shows that no person
shall possess any 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.
9. Section 9 of the Act empowers the Central Government
to permit, control and regulate the cultivation, production,
possession etc. of psychotropic substances. Rules have
been formulated by the Central Government under that
power. Rule 66 falling under Chapter VII of the Rules is
important and hence the same is extracted below:
“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.
884 [2025] 4 S.C.R.

Supreme Court Reports

(3) The research institution, hospital and
dispensary referred to in sub-rule (2) shall
maintain proper accounts and records in
relation to the purchase and consumption of
the psychotropic substance in their possession.”
10. The proviso to sub-rule (2) is very evident that a person
is permitted to keep in his possession for his personal
medical use the psychotropic substance up to one hundred
dosage at a time.
11. We are not disposed to think that 6 ampoules would
cross the above limit and there is no attempt made either
through DW 1 (Doctor) or through Court Witness 1 (DMO)
that 100 dosage would be below the 6 ampoules recovered
from him.
12. It is unfortunate that the aforesaid points have not
been put forward before the trial court or the High Court.
We feel that the conviction and sentence imposed on this
appellant were without the sanction of law. The appellant is
unlawfully deprived of his personal liberty for such a long
period of 5 years on account of overlooking the aforesaid
facts and the legal position.
13. We, therefore, allow this appeal and quash the judgment
of the High Court as well as the Sessions Court. We acquit
the appellant and direct him to be set at liberty forthwith. In
this case, we are not considering the question of awarding
compensation to the appellant but he is free to resort to
his remedies under law for that purpose.”
(Emphasis supplied)

71. Therefore, the dictum as laid in Hussain (supra) is that “Buprenorphine
tidigesic” is a psychotropic substance to which the rigours of Section
8 of the NDPS Act and Rule 66 of the NDPS Rules would apply,
however, as the accused was found to be in possession of less than
100 dosage units of the substance, with a valid medical prescription,
for his personal medical use, he was held to have not committed an
offence under Section 8 of the NDPS Act as there was no violation
of Rule 66.
[2025] 4 S.C.R. 885

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

72. In yet another decision of this Court in Ouseph alias Thankachan
v. State of Kerala reported in (2004) 4 SCC 446, it was declared
that “Buprenorphine” is a psychotropic substance and if an
accused is found in possession of the same, his case would have
to be examined through the rigours of Sections 8 and 22 of the
NDPS Act read with Rule 66 of the NDPS Rules respectively. The
appellant therein was found to be in possession of 110 ampoules
of Buprenorphine. He stood convicted under Section 22 of the
NDPS Act and was sentenced to 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
discernible from Item 92 of the Schedule of the NDPS
Act. If it is a psychotropic substance, possession of it
would become an offence only if it was in contravention
of the Rules prescribed. Under Rule 66 of the Narcotic
Drugs and Psychotropic Substances Rules, 1985 any
person may possess a reasonable quantity of psychotropic
substance “as may be necessary for their genuine scientific
requirements or genuine medical requirements”. This is
subject to the limitation contained in the proviso that he
is in possession of the said substance for his personal
medical use, the quantity thereof shall not exceed one
hundred dosage units at a time.
886 [2025] 4 S.C.R.

Supreme Court Reports

6. Some arguments have been advanced before us to show
that in the absence of any quantification of a dosage 110
ampoules recovered from the appellant cannot be held to
be in excess of the aforesaid limit indicated in Rule 66.
We would have certainly considered the said arguments
seriously if the appellant had thought it fit to adopt such a
line of defence in the trial court or before the High Court.
Unfortunately, it has not been done.
7. In any case we are inclined to consider another
argument advanced before us by the learned counsel for
the appellant based on Section 27 of the NDPS Act. It says
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 six months or with fine or with both
[unless the substance is not one falling under clause (a)
of Section 27].
8. The question to be considered by us is whether the
psychotropic substance was in a small quantity and if
so, whether it was intended for personal consumption.
The words “small quantity” have been specified by the
Central Government by the notification dated 23-7-1996.
Learned counsel for the State has brought to our notice
that as per the said notification small quantity has been
specified as 1 gram. If so, the quantity recovered from the
appellant is far below the limit of small quantity specified
in the notification issued by the Central Government. It is
admitted that each ampoule contained only 2 ml and each
ml contains only .3 mg. This means the total quantity found
in the possession of the appellant was only 66 mg. This
is less than 1/10th of the 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
[2025] 4 S.C.R. 887

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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 purposes. The burden
on the accused in this respect need not be discharged
in the (sic this) manner and the prosecution is to prove
the case beyond a reasonable doubt. It is enough that
he satisfies the judicial mind by a preponderance of
probability.
11. On account of the aforesaid fact situation, we are
inclined to believe that the small quantity of buprenorphine
(Tidigesic) was in the possession of the appellant for
his personal consumption and, therefore, the offence
committed by him would fall under Section 27 of the
NDPS Act.
12. We, therefore, alter the conviction of the appellant to
Section 27 of the Act. We sentence him to the maximum
provided under Section 27(b) of the NDPS Act, which is
imprisonment for six months. He is already in jail for nearly
six years by now. It is not necessary for us to say that
he has been in jail far beyond the sentence imposed by
us. We, therefore, direct the jail authorities to release him
from jail forthwith unless required in any other case. The
appeal is disposed of in the abovesaid terms.”
(Emphasis supplied)
888 [2025] 4 S.C.R.

Supreme Court Reports

73. In Ravindran alias John and Anr. v. Superintendent of Customs
reported in (2007) 6 SCC 410 the two appellants along with one
another accused named Hiralal were convicted for the offence under
Section 8(c) read with Sections 22 and 29 of the NDPS Act respectively
and were sentenced to undergo rigorous imprisonment for 10 years
along with fine, in relation to the possession, transport and sale of
diazepam (which is also a substance listed under the Schedule to
the Act and not in Schedule I of the Rules) weighing 1.53 kgs. On
appeal, the High Court affirmed the conviction of the appellants but
acquitted Hiralal against whom it found no satisfactory evidence to
prove the charges. While dismissing the appeal so far as one of the
accused was concerned and allowing the appeal against conviction
of the other, this Court observed that Section 8 along with Section
22(c) of the NDPS Act would be attracted even while the substance
in question was Diazepam which is listed as Sl. No. 43 under the
Schedule to the NDPS Act and absent in Schedule I of the NDPS
Rules. The relevant observations are as thus:
“15. It was lastly urged that though the Chemical Analyst
had reported the presence of diazepam, he had not given
particulars as to the proportion in which its components
were found. Counsel 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
[2025] 4 S.C.R. 889

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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 several years. Therefore,
the respondent was charged under Section 8 read with Section 22
of the NDPS Act. While the Special Judge had refused to grant bail,
the High Court allowed the bail application and released the accused
on bail. Agreeing with the High Court, this Court held that prima facie
the provisions of the Act were not found to be applicable in a case
wherein the psychotropic substance in question was only mentioned
under the Schedule to the NDPS Act and not under Schedule I of
the NDPS Rules.
75. While declining to interfere with the grant of bail, this Court in Rajesh
Kumar Gupta (supra) expounded the law on several aspects:
i. First, that the use of the psychotropic substance or contraband
for medical or scientific purposes is excluded from the purview
of operation of Section 8 of the NDPS Act. However, that such
dealing in the substance for medical or scientific purposes
must also be in the manner and to the extent provided by the
provisions of the NDPS Act or rules or orders made thereunder.
The exception contained in Section 8 of the NDPS Act must
be judged on the touchstone of whether the drugs are used
for medicinal or scientific purposes and whether they come
within the purview of the regulatory provisions contained in
Chapters VI and VII of the NDPS Rules. Therefore, in the facts
and circumstances of the case, once the drugs are said to be
used for medicinal purposes and found to be beyond the pale of
the rules contained in Chapters VI and VII of the NDPS Rules
(owing to the substance in question not figuring in Schedule I
of the Rules), the exception contained under Section 8 would
kick in and no offence could be said to have been made out.
The relevant observations are reproduced hereinbelow:
“18. Chapter III of the 1985 Act, however, provides
for prohibition, control and regulation. Section 8
provides for prohibition of certain operations in terms
whereof no person shall make any cultivation of
the plants mentioned in clauses (a) and (b) thereof
or, inter alia, produce, manufacture, possess, sell,
purchase, transport, warehouse, use, consume, import
890 [2025] 4 S.C.R.

Supreme Court Reports

inter-State, export inter-State, import into India,
export from India or tranship any narcotic drug or
psychotropic substance. The said provision contains
an exception which takes within its fold all the classes
of cases preceding thereto. Use of the contraband
for medical or scientific 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 they are mentioned in Schedules G and H of
the Drugs and Cosmetics Rules [...]

xxx xxx xxx
23. In view of the fact that all the drugs, Items 1, 2,
3, 4, 6 and 7 being allopathic drugs mentioned in
Schedules G and H of the Drugs and Cosmetics Rules
indisputably are used for medicinal purposes. Once
the drugs are said to be used for medicinal purposes,
[2025] 4 S.C.R. 891

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

it cannot be denied that they are acknowledged to
be the drugs which would come within the purview of
description of the expression “medicinal purposes”.
24. The exceptions contained in Section 8 of the 1985
Act must be judged on the touchstone of:
(i) whether drugs are used for medicinal purposes;
(ii) whether they come within the purview of the
regulatory provisions contained in Chapters VI and
VII of the 1985 Rules.
(Emphasis supplied)

ii. Secondly, it was held that Rules 53 and 64 of the NDPS Rules
respectively, contain a genus and the other provisions following
the same under the said Chapter are species thereof. Both
the rules were said to contain a general prohibition as regard
the narcotic drugs and psychotropic substances specified in
Schedule I of the NDPS Rules. Therefore, the reference to
“psychotropic substances” in the other rules following in Chapters
VI and VII of the NDPS Rules respectively were also said to
be construed as a reference to the Schedule I psychotropic
substances under the NDPS Rules and not the larger list of
substances mentioned in the Schedule to the Act itself. Hence, if
the said psychotropic substances do not find a place in Schedule
I appended to the NDPS Rules, the provisions of Section 8
of the NDPS Act would have no application whatsoever. The
relevant observations are reproduced hereinbelow:
19 [...] Chapter VI of the 1985 Rules provides for
import, export and trans-shipment of narcotic drugs
and psychotropic substances. Rule 53 contains
general prohibition in terms whereof the import
and export out of India of the narcotic drugs and
psychotropic substances specified in Schedule I
appended thereto is prohibited. Such prohibition,
however, is subject to the other provisions of the
said Chapter. Rule 63 to which our attention has
been drawn specifically prohibits import and export
of consignments through a post office box but
892 [2025] 4 S.C.R.

Supreme Court Reports

keeping in view the general prohibition contained
in Rule 53 the same must be held 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.

xxx xxx xxx
22. It is not in dispute that the medicines seized from
the said clinic come within the purview of Schedules
G and H of the Drugs and Cosmetics Rules. It is
furthermore not in dispute that the medicines Epilan C.
Phenobarbitone and Chlordiazepoxide are mentioned
in Entries 69 and 36 of the 1985 Act respectively,
whereas none of them finds place in Schedule I
appended to the 1985 Rules. If the said drugs do
not find place in Schedule I appended to the
Rules, the provisions of Section 8 of the 1985 Act
would have no application whatsoever. Section 8
[2025] 4 S.C.R. 893

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

of the 1985 Act contains a prohibitory clause, violation
whereof leads to penal offences thereunder.
(Emphasis supplied)

76. In Sanjay Kumar Kedia v. Narcotics Control Bureau and Another
reported in (2008) 2 SCC 294, this Court was faced with deciding,
yet again, whether bail should be granted to the appellant wherein
he was arrested in connection with the commission of offence under
Sections 24 and 29 of the NDPS Act respectively, for the illegal sale
of drugs, more particularly “Phentermine” and “Butalbital”, through
the internet. These two substances feature at Sl. Nos. 70 and 93
of the Schedule to the NDPS Act respectively and are not found in
Schedule I of the NDPS Rules. While agreeing with the High Court
that bail should not be granted and also providing a disclaimer that
the observations made by this Court must not influence the decision
on trial, this Court said that the benefit under Section 79 of the
Information Technology Act, 2002 given to the intermediaries could
not be extended to the appellant. In declaring so, it was held that the
two drugs finding a place in the Schedule to the Act made it clear
that they are psychotropic substances falling within the prohibition
contained in Section 8 thereof and stated thus:
“9. It is clear from the Schedule to the Act that the two
drugs Phentermine and Butalbital are psychotropic
substances and therefore fall within the prohibition
contained in Section 8 thereof. The appellant has been
charged for offences punishable under Sections 24 and
29 of the Act [...]
10. A perusal of Section 24 would show that it deals with
the engagement or control of a trade in narcotic drugs and
psychotropic substances controlled and supplied outside
India and Section 29 provides for the penalty arising out of
an abetment or criminal 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
894 [2025] 4 S.C.R.

Supreme Court Reports

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 only to such Schedule I substances.
Furthermore, it was contended that since the drugs were used for
medicinal purposes, the same is acknowledged in terms of the proviso
under Section 8(c) of the NDPS Act. However, this Court took the
view that the fact that the appellant and his co-accused had obtained
licences under the D&C Act with a general permission for import and
export did not enure any particular benefit to them since the D&C Act
does not deal with exports. The appellant and his co-accused being
licensees were thus required to comply with the specific requirements
of the NDPS Act and its Rules. Hence, an offence under Section
8(c) was said to have been made out in the absence of an export
authorisation and it was held that the application for bail was rightly
rejected by the Special Judge as also the High Court. The relevant
observations are as thus:
“13. The appellant and his co-accused are said to have
got licences under the Drugs and Cosmetics Act, 1940.
They had got general permission for import and export.
14. Section 80 of the Act provides that the provisions of the
Act or the Rules made thereunder are in addition to, and
not in derogation of the Drugs and Cosmetics Act, 1940
or the Rules made thereunder. The Drugs and Cosmetics
Act, 1940 does not deal with exports. The provisions of
the Customs Act do. The licensees, therefore, were, thus,
required to comply with the specific requirements of the
Act and the Rules. It is not denied or disputed that the
appellant neither applied for nor granted any authority to
[2025] 4 S.C.R. 895

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

export by the Narcotic Commissioner or any other officer
who is authorised in this behalf.
15. We, therefore, are of the opinion that the High Court
is right in opining that the decision of this Court in Rajesh
Kumar Gupta [(2007) 1 SCC 355 : (2007) 1 SCC (Cri) 356]
is not applicable to the facts of this case.”
(Emphasis supplied)

78. A three-Judge Bench decision of this Court in Union of India and
Another v. Sanjeev V. Deshpande reported in (2014) 13 SCC 1
related to a batch of matters, all pertaining to prosecutions under
the provisions of the NDPS Act wherein each one of the accused
was alleged to have been in possession of a psychotropic substance
only mentioned under the Schedule to the Act. In some of the cases
bail was granted by the concerned High Court and in few others,
bail was denied. This 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 ambit of Section
8(c). Section 8(c) in no uncertain terms prohibits
the dealing in any manner in any narcotic drug or
896 [2025] 4 S.C.R.

Supreme Court Reports

psychotropic substance. However, an exception to
such prohibition is also contained in the said section.
“8. Prohibition of certain operations.—
No person shall -
***
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 authorisation also in accordance with
the terms and conditions of such licence,
permit or authorisation:”
The exception being that dealing in any
narcotic drug or psychotropic substance
is permitted “in the manner and to the
extent provided by the provisions of
this Act or the Rules or Orders made
thereunder”.
25. 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 [...]”
(Emphasis supplied)

ii. Secondly, it was opined that Sections 9 and 10 of the NDPS
Act respectively, enable the Central and State Governments
respectively, to frame rules to “permit and regulate” various
aspects contemplated under Section 8(c) of dealing in narcotic
[2025] 4 S.C.R. 897

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

drugs and psychotropic substances. It was clarified that the Act
does not contemplate the framing of rules for “prohibiting” various
activities of dealing in the same since such a prohibition is already
present under Section 8(c). Therefore, it cannot be said that the
prohibition contained under Section 8 would not be attracted in
respect of all those psychotropic substances which find a mention
only in the Schedule to the Act but not in Schedule I to the Rules
framed under the Act. The relevant observations are as thus:
“25. [...] Sections 9 [ “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—(i)-(v) ***(vi)
the 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 is untenable.”
(Emphasis supplied)
898 [2025] 4 S.C.R.

Supreme Court Reports

iii. Thirdly, while overruling the decision made in Rajesh Kumar
Gupta (supra), it was stated that the rules framed under the
Act cannot be understood to create rights and obligations
contrary to those contained in the parent Act. Therefore, neither
Rule 53 nor Rule 64 is a source of authority for prohibiting
the dealing in narcotic drugs and psychotropic substances,
instead the source is Section 8 of the NDPS Act itself. The
provisions of Chapter VI of the NDPS Rules, contain rules
permitting and regulating the import and export of narcotic
drugs and psychotropic substances other than those specified
in Schedule I to the NDPS Rules subject to various conditions
and procedures stipulated in Chapter VI. Whereas, Chapter
VII deals exclusively with various other aspects of dealing in
psychotropic substances and the conditions subject to which
such dealing is permitted. In that sense, both Rules 53 and 64
are really in the nature of an exception to the general scheme of
Chapter VI and VII respectively, wherein those two rules pertain
to a list of narcotic drugs and psychotropic substances which
cannot be dealt with in any manner notwithstanding the other
provisions of these two chapters. The relevant observations
are reproduced hereinbelow:
29. We are unable to agree with the conclusion
(reached in Rajesh Kumar Gupta case [State of
Uttaranchal v. Rajesh Kumar Gupta, (2007) 1 SCC
355 : (2007) 1 SCC (Cri) 356] ) that the prohibition
contained in Rule 63 [ “63.Prohibition of import and
export of consignments through a post office box,
etc.—The import or export of consignments of any
narcotic drug or psychotropic substance through a
post office box or through a bank is prohibited.”] 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.
Such a conclusion was reached in Rajesh Kumar
Gupta case [State of Uttaranchal v. Rajesh Kumar
Gupta, (2007) 1 SCC 355 : (2007) 1 SCC (Cri) 356]
on the understanding that Rule 53 (prohibiting the
import into and export out of India of the narcotic drugs
[2025] 4 S.C.R. 899

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

and psychotropic substances specified in Schedule I
to the Rules) is the source of the authority for such
prohibition. Such a conclusion was drawn from the fact
that the other Rules contained in the Chapter permit
import into and export out of India of certain narcotic
drugs and psychotropic substances other than those
specified in Schedule I to the Rules. Unfortunately,
the learned Judges in reaching such a conclusion
ignored the mandate of Section 8(c) which inter alia
prohibits in absolute terms import into and export
out of India of any narcotic drug and psychotropic
substance. Rules framed under the Act cannot be
understood to create rights and obligations contrary
to those contained in the parent Act.
30. On examination of the scheme of Rules 53 to 63
which appear in Chapter VI, we are of the opinion
that Rule 53 [ “53.General prohibition.—Subject to
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 in Section 8(c) i.e. the prohibition of import
into and export out of India of the narcotic drugs and
psychotropic substances specified in Schedule I to
the Rules. The proviso thereto however enables the
import into and export out of India on the basis of
an import certificate or export authorisation issued
under the provisions of Chapter VI. The subsequent
rules stipulate the conditions subject to which and
the procedure to be followed by which some of the
narcotic drugs and psychotropic substances could
be imported into India or exported out of India. For
example, opium is a narcotic drug by definition under
Section 2(xiv) of the Act whose export and import
900 [2025] 4 S.C.R.

Supreme Court Reports

is prohibited under Section 8(c). But Rule 54 [ “54.
Import of opium, etc.—The import of—(i) opium,
concentrate of poppy straw, and(ii) morphine, codeine,
thebaine, and their salts is prohibited save by the
Government Opium Factory; Provided that nothing in
this rule shall apply to import of morphine, codeine,
thebaine and their salts by manufacturers notified by
the Government, for use in manufacture of products
to be exported or to imports of small quantities of
morphine, codeine and thebaine and their salts not
exceeding a total of 1 kilogram during a calendar
year for analytical purposes by an importer, after
following the procedure under Rule 55 and subject
to such conditions as may be specified in the import
certificate issued in Form 4-A.”(emphasis supplied)]
authorises the import of opium by the Government
opium factory. The construction such as the one
placed on Rule 53 in Rajesh Kumar Gupta case [State
of Uttaranchal v. Rajesh Kumar Gupta, (2007) 1 SCC
355 : (2007) 1 SCC (Cri) 356] would in our opinion
be wholly against the settled canons of statutory
interpretation that the subordinate legislation cannot
make stipulation contrary to the parent Act.
31. Chapter VII deals with psychotropic substances.
No doubt Rule 64 [ “64.General prohibition.—No
person shall manufacture, possess, transport, import
inter-State, export inter-State, sell, purchase, consume
or use any of the psychotropic substances specified
in Schedule I.”] once again purports to prohibit
various operations other than import into or export
out of India in psychotropic substances specified in
Schedule I for the obvious reason that import and
export operations are already covered by Rule 53.
Rule 65 authorises the manufacture of psychotropic
substances other than those specified in Schedule
I to the Rules subject to and in accordance with the
conditions of a licence granted under the 1945 Rules.
The rule also provides for various other incidental
matters. Rule 65-A prohibits the sale, purchase,
[2025] 4 S.C.R. 901

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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 follows:
“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 the 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
902 [2025] 4 S.C.R.

Supreme Court Reports

substance as may be necessary for their
genuine scientific 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:
Provided further that an individual may
possess the quantity of exceeding one
hundred dosage units at a time but not
exceeding three hundred dosage units at a
time for his personal long term medical use
if specifically prescribed by a Registered
Medical Practitioner.
(3) The research institution, hospital and
dispensary referred to in sub-rule (2) shall
maintain proper accounts and records in
relation to the purchase and consumption
of the psychotropic substance in their
possession.”
34. On the above analysis of the provisions of
Chapters VI and VII of the 1985 Rules, we are
of the opinion, both these chapters contain rules
permitting and regulating the import and export of
narcotic drugs and psychotropic substances other
than those specified in Schedule I to the 1985
Rules subject to various conditions and procedure
stipulated in Chapter VI. Whereas Chapter VII deals
exclusively with various other aspects of dealing in
psychotropic substances and the conditions subject
to which such dealing in is permitted. We are of
the opinion that both Rules 53 and 64 are really in
the nature of exception to the general scheme of
Chapters VI and VII respectively containing a list of
[2025] 4 S.C.R. 903

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

narcotic drugs and psychotropic substances which
cannot be dealt in any manner notwithstanding the
other 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
considered unnecessary to the scheme of the NDPS Regime. To
render an entire Schedule nugatory could not have been the intention
of the legislature.
80. What we understand to be the clarification of the position of law in
Rajesh Kumar Gupta (supra) and Sanjeev V. Deshpande (supra)
is thus:
i. In Rajesh Kumar Gupta (supra), Chapters VI and VII of the
NDPS Rules respectively, were interpretated in such a manner
where Rules 53 and 64 of the NDPS Rules respectively, were
considered to set the tone for the other rules following in their
respective Chapters i.e., that Rules 53 and 64 respectively, were
the genus and the other rules were considered to be species
thereof. In other words, since Rules 53 and 64 respectively,
only pertain to substances under Schedule I of the Rules,
904 [2025] 4 S.C.R.

Supreme Court Reports

the other rules must also pertain to Schedule I substances
only. Therefore, it was declared that it is only the psychotropic
substances appended to Schedule I of the Rules which are
regulated by the NDPS Rules, and dealing in substances, not
finding a mention in Schedule I, would be unregulated and thus,
not amount to an offence under Section 8(c).
ii. Sanjeev V. Deshpande (supra) while overruling Rajesh
Kumar Gupta (supra) dispelled the idea that Rules 53 and
64 respectively, constituted a genus but instead stated that
Rules 53 and 64 respectively, are in the nature of an exception
to the general scheme of their respective Chapters. To put it
more clearly, that Rules 53 and 64 respectively stated that
substances under Schedule I of the Rules cannot be dealt with
in any manner whatsoever and the other Rules in the Chapter
proceeded to lay down the procedure and conditions under
which substances other than those mentioned in Schedule I of
the Rules but contained in the Schedule to the Act, could be
dealt with. Therefore, if an accused is charged with an offence
for dealing with a substance mentioned under the Schedule to
the Act and not in Schedule I of the Rules, he would be guilty
of an offence under Section 8(c) if the conditions and procedure
laid down under the Rules, other than Rules 53 and 64, are
not complied with.
81. However, a detailed and comprehensive analysis of Chapters VI and
VII of the NDPS Rules, inter alia, makes it clear that the substances
mentioned under Schedule I of the Rules are not absolutely prohibited
to be dealt in, as stated in Sanjeev V. Deshpande (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
[2025] 4 S.C.R. 905

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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 India of the narcotic drugs
and psychotropic substances is prohibited except with an
import certificate or export authorization issued under the
provision of this Chapter;
Provided that import into India or export out of India of
the narcotic drugs and psychotropic substances specified
in Schedule I of these rules shall be for the purpose
mentioned in Chapter VIIA.”
(Emphasis supplied)

83. Similarly, at present, Rule 64 of the NDPS Rules reads as follows:
“64. Manufacture of psychotropic substances. –
(1) No person shall manufacture any of the psychotropic
substances except in accordance with the conditions of
a licence granted under the Drugs and Cosmetics Rules,
1945 (hereinafter referred to as the 1945 rules) framed
under the Drugs and Cosmetics Act, 1940 (23 of 1940),
by an authority in-charge of Drugs Control in a State
appointed by the State Government in this behalf:
Provided that a licence to manufacture a psychotropic
substance specified in Schedule I shall be issued only for
the purposes mentioned in Chapter VIIA:
Provided further that the authority in charge of the drug
control in a State shall consult the Narcotics Commissioner
before issuing a licence to manufacture a psychotropic
substance specified in Schedule I.”
(Emphasis supplied)
906 [2025] 4 S.C.R.

Supreme Court Reports

84. Rule 66 of the NDPS Rules also reads as thus:
“66. Possession, etc., of psychotropic substances. –
(1) No person shall possess any psychotropic substance
for any of the purposes covered under 1945 rules, unless
he is lawfully authorized to possess such substance for
any of the said purposes under these rules:
Provided that possession of a psychotropic substance
specified in Schedule I shall be only for the purposes
mentioned in chapter VIIA.”
(Emphasis supplied)

85. In our opinion the pith and substance of the rules essentially remained
the same over the years, more particularly pre and post 25.03.2015.
It is only the language that has been streamlined in a much more
organised manner. Of course, the interpretation of the three-Judge
Bench in Sanjeev V Deshpande (supra) of the scheme of Chapters
VI and VII of the NDPS Rules respectively would hold the field in so
far as the version of the NDPS Rules pre-25.03.2015 is concerned.
Judicial propriety demands that we refrain from substituting our own
conclusions 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
[2025] 4 S.C.R. 907

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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 an older law, the character of the subsequent law
is technically said to be derogatory. Therefore, the express language
employed herein which states that the NDPS Act is not in derogation
of the D&C Act leads to the inference that the enactment of the NDPS
Act must not in any way be understood to take away the scope of
an offence being also made out under the D&C Act. Furthermore,
it is also stated that the provisions of the NDPS Act and its Rules
“shall be in addition to” the D&C Act or the Rules made thereunder.
Therefore, in the reverse scenario, i.e., when an offence under the
D&C Act is made out or can potentially be made out, the accused
can also be charged or prosecuted for an offence under the NDPS
Act. Any argument to the contrary would be untenable. This is so
because the NDPS Act applies in addition to the provisions of the D&C
Act. Inevitably, there may arise situations wherein the substance in
question in a particular case falls under the ambit of both the NDPS
Act and D&C Act. However, the overlap would not necessarily imply
that the application of the provisions of the NDPS Act would be at
the cost of exclusion of the provisions of D&C Act, or vice versa.
Section 80 of the NDPS Act must be understood in the context and
object behind the coming into force of these two legislations i.e., the
NDPS Act and D&C Act respectively, and the distinct purposes that
they seek to achieve.
88. In Sanjeev V. Deshpande (supra), while it was deemed unnecessary
to undertake a complete analysis of the implications of Section 80
of the NDPS Act in view of the conclusion arrived at therein, yet it
was observed that the provisions of the NDPS Act apply in addition
to the provisions of the D&C Act. Furthermore, it was stated that
while the D&C Act deals with various operations of manufacture,
sale, purchase etc. of drugs generally, the NDPS Act deals with a
more specific class of drugs and is therefore, a special law on the
subject. The relevant observations are reproduced hereinbelow:
“35. In view of our conclusion, the complete analysis of the
implications of Section 80 [“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.”]
908 [2025] 4 S.C.R.

Supreme Court Reports

of the Act is not really called for 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 respondent-accused 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,
the same must be tried if a violation has been committed, under
the D&C Act and not under the NDPS Act, except in cases where
the substance is in a loose form i.e., powder, liquid etc. This Court
disagreed with the High Court that the respondent-accused could
only be prosecuted for an offence under the D&C Act despite there
being a prima facie violation of Section 8 of the NDPS Act. In opining
so, the decision elaborated on the following aspects:
i. First, that the objectives behind the NDPS Act and D&C Act are
different. It was opined that the former is a special law enacted
with an object to control and regulate the operations relating
to narcotic drugs and psychotropic substances. Whereas, the
latter was enacted specifically to prevent substandard drugs
and to maintain high standards of medical treatment. It intended
to curtail the menace of adulteration of drugs and also of the
production, manufacture, distribution and sale of spurious and
substandard drugs. In short, while the D&C Act brings within
its scope drugs which are intended to be used for therapeutic
[2025] 4 S.C.R. 909

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

or medicinal usage, the NDPS Act intends to curb and penalise
the usage of drugs that are utilized for intoxication or for the
purpose of inducing a stimulant effect. The relevant observations
are as thus:
“7. 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 NDPS Act. The Drugs
and Cosmetics Act, 1940 was enacted to specifically
prevent substandard drugs and to maintain high
standards of medical treatment (Chimanlal Jagjivan
Das Sheth v. State of Maharashtra [Chimanlal Jagjivan
Das Sheth v. State of Maharashtra, AIR 1963 SC 665 :
(1963) 1 Cri LJ 621] ). 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
substandard drugs. On the other hand, the NDPS
Act is a special law enacted by Parliament with an
object to control and regulate the operations relating
to narcotic drugs and psychotropic substances. After
analysing the objectives of both the Acts, we can
safely conclude that 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 NDPS Act intends to curb and penalise the usage
of drugs which are used 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 respondent-accused
could be charged under Sections 21 or 22 of the NDPS Act
respectively, considering that their actions amounted to a prima
910 [2025] 4 S.C.R.

Supreme Court Reports

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 that the provisions of the
NDPS Act are not in derogation of the Drugs and
Cosmetics Act, 1940. This Court in Union of India v.
Sanjeev V. Deshpande [Union of India v. Sanjeev V.
Deshpande, (2014) 13 SCC 1 : (2014) 5 SCC (Cri)
496] , has held that : (SCC p. 16, para 35)
“35. … essentially the Drugs and Cosmetics Act, 1940
deals with various operations of manufacture, sale,
purchase, etc. of drugs generally whereas 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)

14. The aforesaid decision in Sanjeev V. Deshpande
case [Union of India v. Sanjeev V. Deshpande, (2014)
13 SCC 1 : (2014) 5 SCC (Cri) 496] further clarifies
that, the NDPS Act, should not be read in exclusion to
the 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 respondent-accused amounted to
a prima facie violation of Section 8 of the NDPS Act,
they were charged under Section 22 of the NDPS Act.
15. In light of the above observations, we find that the
decision rendered by the High Court holding that the
respondent-accused must be tried under the Drugs
[2025] 4 S.C.R. 911

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

and Cosmetics Act, 1940 instead of the NDPS Act, as
they were found in possession of the “manufactured
drugs”, does not hold good in law. [...]”.
(Emphasis supplied)

90. On a conspectus of the foregoing discussion on the scheme of the
NDPS Act and its rules along with the D&C Act and the rules made
thereunder, the position of law can be succinctly stated as follows:
i. A bare reading of Section 2(xxiii) of the NDPS Act defining a
“psychotropic substance” would indicate that all the items listed
in the Schedule to the Act along with its salts and preparations
fall within the purview of “psychotropic substance”. The term
“psychotropic substance” mentioned in Section 8 must be
seen & understood in light of Section 2(xxiii) which refers to
the Schedule to the Act and all the psychotropic substances
mentioned therein.
ii. Section 8(c) while prohibiting the “dealing in” of all psychotropic
substances mentioned under the Schedule to the Act, carves out
an exception 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 must not be understood as
912 [2025] 4 S.C.R.

Supreme Court Reports

laying down standards different from or inconsistent with the
substantive provisions of the NDPS Act, especially Section 8
and the Schedule to the NDPS Act.
iv. Chapter VI of the NDPS Rules, inter alia, states that the import
into and export out of India of all psychotropic substances,
including those only mentioned under the Schedule to the Act,
must be accompanied by a valid import certificate and export
authorisation. However, the import and export of substances
enumerated in Schedule I of the Rules is restricted to a pre-
determined set of purposes as explained under Chapter VIIA,
irrespective of having obtained an import certificate or export
authorisation under the other rules of this Chapter.
v. Chapter VII indicates that the manufacture of all psychotropic
substances, including those mentioned only under the Schedule
to the Act must be in accordance with the conditions of licence
issued under the D&C Rules. Despite there being a general
rule absolutely prohibiting the manufacture, possession,
transport, import inter-State, export inter-State, sale, purchase,
consumption or use of any of the psychotropic substances which
find mention in Schedule I appended to the Rules, still the above
activities can be done vis-á-vis the substances mentioned in
Schedule I appended to the Rules, provided such activities
are in accordance with other provisions of the Chapter which
generally apply to all psychotropic substances, and for the
limited purposes mentioned under Chapter VIIA.
vi. The manufacture of all psychotropic substances mentioned
under the Schedule to the Act, and those mentioned under
Schedule I of the Rules (provided they are manufactured only
for the purposes elaborated under Chapter VIIA), in violation of
the conditions of licence of manufacture issued under the D&C
Act and its rules would amount to a contravention of Rule 65 of
the NDPS Rules and thereby Section 8 of the NDPS Act itself.
In other words, due to the operation of Rule 65, a violation of
the condition 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.
vii. Furthermore, no person shall possess any psychotropic
substance, including those mentioned only under the Schedule
[2025] 4 S.C.R. 913

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

to the Act for any of the purposes covered by the D&C Rules,
unless he is lawfully 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 for other “medical
and scientific purposes”. Whether the accused has dealt with
it within the confines of the expression “medical or scientific
purposes” would be determined on the facts and circumstances
of each case.
ix. Therefore, the substances under Schedule I to the Rules
are more strictly restricted and the remaining psychotropic
substances under the Schedule to the Act are more leniently
restricted. The different levels in restriction could be seen as
the primary reason behind providing two different schedules,
i.e., one under the Act and another under the Rules.
x. Several decisions of this Court including Hussain (supra),
Ouseph alias Thankachan (supra), Ravindran alias John
(supra), Sanjay Kumar Kedia (supra), D. Ramakrishnan
(supra) and Sanjeev V. Deshpande (supra) have held that an
offence under Section 8 of the NDPS Act can be made out even
in respect of substances only mentioned under the Schedule
914 [2025] 4 S.C.R.

Supreme Court Reports

to the NDPS Act and absent under Schedule I of the NDPS
Rules. The outlier amongst these decisions was Rajesh Kumar
Gupta (supra) which was subsequently overruled in Sanjeev
V. Deshpande (supra).
xi. To say that no offence would be made out in a case where
an accused deals with a substance mentioned only under the
Schedule to the Act, would have the consequence of rendering
the entire Schedule to the Act useless, unnecessary and
nugatory.
xii. Rajesh Kumar Gupta (supra) assumed that the prohibitory
power could only be traced to Rules 53 and 64 of the NDPS
Rules respectively, and stated that Rules 53 and 64 of the
NDPS Rules respectively, were a genus and the other rules
following in their respective Chapters were species thereof.
Therefore, since Rules 53 and 64 respectively, only related
to the substances listed under Schedule I of the Rules, it was
held that the dealing in of substances not finding a mention in
Schedule I of the Rules and only listed under the Schedule to
the Act, would be unregulated by the Rules and thus, would
not amount to an offence under Section 8(c).
xiii. On the other hand, Sanjeev V. Deshpande (supra) overruled
Rajesh Kumar Gupta (supra) by explaining that it is Section 8(c)
of the NDPS Act which prohibits various activities with respect
to psychotropic substances and the source of this prohibitory
power cannot be attributed to Rules 53 and 64 respectively.
Rules 53 and 64 are in 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
[2025] 4 S.C.R. 915

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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 potentially be
made out, the accused can also be charged or prosecuted for
an offence under the NDPS Act or vice-versa. The object sought
to be achieved under both the legislations is also distinct i.e. the
NDPS Act is a special law enacted to regulate the operations
relating to narcotic drugs and psychotropic substances with a
view to curb and penalise the usage of drugs by persons for
intoxication etc., whereas the D&C Act was enacted to prevent
substandard, adulterated and spurious drugs from entering
the medical market and to maintain high standards in medical
treatment. Hence, offences under both the enactments can
also be said to have been constituted simultaneously, where
the circumstances so require.

ii. Whether the decision in Sanjeev V. Deshpande (supra)
should operate with prospective effect?

a. An overruling decision generally operates retrospectively.
91. The declaration of a statute dealing with substantive rights, by the
legislature, is considered to be prospective unless it is expressly or
by necessary implication made to have retrospective operation. The
legal maxim “Nova Constitutio Futuris Forman Imponere Debet, Non
Praeteritis” indicating that a new law ought to regulate what is to follow
and not the past, carries with it a presumption of prospectivity and
this presumption is generally said to operate unless the contrary is
shown by an express provision in the statute or if the retrospectivity is
otherwise discernible through necessary implication. This is because
such statutes would have the consequence of affecting vested rights,
impose new burdens or impair existing obligations. However, when
a decision rendering an opinion as regards the interpretation of a
penal provision is subsequently overruled by the decision of a larger
bench, the consequence of the overruling is starkly different and by
default, retrospective. This is because it is settled law that the law
916 [2025] 4 S.C.R.

Supreme Court Reports

declared by this Court is retrospective and is normally assumed to
be the law from the inception.
92. The operation of a newly enacted statute or rule must not be
confused with the effect of a judgment. A judgement or decision which
interprets a statute or provision thereof declares the meaning of the
statute as it should be construed from the date of its enactment.
In other words, the judgment declares what the legislature had
said at the time when the law was promulgated 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-judge bench of this
Court in Gian Devi Anand v. Jeevan Kumar and Others reported
in (1985) 2 SCC 683 had held that the rule of heritability extends
to the statutory tenancy of a commercial premises as much as to
a residential premises under the Delhi Rent Control Act, 1958. In
light of the same, the question for determination in Sarwan Kumar
(supra) was whether a decree for ejectment which was passed by a
civil court qua a commercial tenancy on the basis that the tenancy
was not heritable, before the declaration of law in Gian Devi Anand
(supra), was executable or not? By stating that the jurisdiction of the
civil court to pass the decree for ejectment was barred and that the
decree obtained by the decree-holder cannot be executed owing to
it being a nullity and non-est, this Court observed as follows:
[2025] 4 S.C.R. 917

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

15. [...] The doctrine of “prospective overruling” was
initially made applicable to the matters arising under the
Constitution but we understand the same has since been
made applicable to the matters arising under the statutes as
well. Under the doctrine of “prospective overruling” the law
declared by the Court applies to the cases arising in future
only and its applicability to the cases which have attained
finality is saved because the repeal would otherwise
work hardship on those who had trusted to its existence.
Invocation of the doctrine of “prospective overruling” is
left to the discretion of the Court to mould with the justice
of the cause or the matter before the Court. This Court
while deciding Gian Devi Anand case [(1985) 2 SCC 683 :
1985 Supp (1) SCR 1] did not hold that the law declared
by it would be prospective in operation. It was not for the
High Court to say that the law laid down by this Court in
Gian Devi Anand case [(1985) 2 SCC 683 : 1985 Supp
(1) SCR 1] would be prospective in operation. If this is to
be accepted then conflicting rules can supposedly be laid
down by different High Courts regarding the applicability of
the law laid down by this Court in Gian Devi Anand case
[(1985) 2 SCC 683 : 1985 Supp (1) SCR 1] or any other
case. Such a situation cannot be permitted to arise. In the
absence of any direction by this Court that the rule laid
down by this Court would be prospective in operation, the
finding recorded by the High Court that the rule laid down
in Gian Devi Anand case [(1985) 2 SCC 683 : 1985 Supp
(1) SCR 1] by 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
918 [2025] 4 S.C.R.

Supreme Court Reports

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 not been taken away
by the interpretation given by this Court. This Court
declared that the civil court had no jurisdiction to
pass such a decree. It was not a question of taking
away the jurisdiction; it was the declaration of law
by this Court to that effect. The civil court assumed the
jurisdiction on the basis of the interpretation given by the
High Court in Gian Devi case [(1980) 17 DLT 197] which
was set aside by this Court.
(Emphasis supplied)

94. While addressing the issue of the temporal and retrospective effect
of a judicial decision and declaring that a tribunal or court is bound
by a higher court’s decision on the point in issue, irrespective of
whether it is declared either prior to or subsequent to the order
which is sought to be called into question by a party, this Court in
Assistant Commissioner, Income Tax, Rajkot v. Saurashtra Kutch
Stick Exchange Limited reported in (2008) 14 SCC 171 stated that
a judicial decision acts retrospectively by placing reliance on the
Blackstonian theory. According to this theory, it is not the function of
the court to pronounce a “new rule” but to maintain and expound the
“old one”. Therefore, if the subsequent decision alters or overrules the
earlier one, it cannot be said to have made a new law. The correct
principle of law is just discovered and applied retrospectively. In other
words, if in a given situation an earlier decision of the court operated
for quite some time and it is overruled by a subsequent decision,
the decision rendered subsequently would have retrospective effect
and would serve to clarify the legal position which was not clearly
understood earlier. Any transaction would then be covered by the
law declared by the overruling decision. The overruling is generally
[2025] 4 S.C.R. 919

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

retrospective with the only caveat being that matters that are res
judicatae or accounts that have been settled in the meantime would
not be disturbed. The relevant observations made by this Court are
reproduced hereinbelow:
“35. In our judgment, it is also well settled that a judicial
decision acts retrospectively. According to Blackstonian
theory, it is not the function of the court to pronounce a
“new rule” but to maintain and expound the “old one”.
In other words, Judges do not make law, they only
discover or find the correct law. The law has always
been the same. If a subsequent decision alters the
earlier 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 judgement or decision applies
920 [2025] 4 S.C.R.

Supreme Court Reports

retrospectively and to the general rule of doctrine of precedent.
The application of the doctrine is based on the philosophy that
“The past cannot always be erased by a new judicial declaration”.
That the Court can contemplate giving prospective application to a
law declared by it, stems from the premise that the Court is neither
required to apply a decision retrospectively nor is it prohibited from
applying it retrospectively. The merits and demerits of retrospective
or prospective application is examined and the doctrine is applied
wherever appropriate and necessary. This is precisely why the
express declaration by a court that its decision is prospectively
applicable is a requisite condition. Prospectivity as a concept cannot
be considered to be inhered in all situations since the intention to
attribute prospectivity to a decision must be limpid and clear. The
same has been reiterated in a catena of decisions by this Court.
96. That there is no prospective overruling unless it is so indicated
expressly and in the clearest possible terms was laid down by this
Court in P.V. George and Others v. State of Kerala and Others
reported in (2007) 3 SCC 557.
“19. It may be true that when the doctrine of stare decisis
is not adhered to, a change in the law may adversely affect
the interest of the citizens. The doctrine of prospective
overruling although is applied to overcome such a situation,
but then it must be stated expressly. The power must be
exercised in the clearest possible term. The decisions of
this Court are clear pointer thereto.

xxx xxx xxx
25. In service matters, this Court on a number of occasions
have passed orders on equitable consideration. But the
same would not mean that whenever a law is declared,
it will have an effect only because it has taken a different
view from the earlier one. In those cases it is categorically
stated that it would have prospective operation.

xxx xxx xxx
29. Moreover, the judgment of the Full Bench has attained
finality. The special leave petition has been dismissed. The
subsequent Division Bench, therefore, could not have said
as to whether the law declared by the Full Bench would
[2025] 4 S.C.R. 921

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

have a prospective operation or not. The law declared by
a court will have a retrospective effect if not otherwise
stated to be so specifically. The Full Bench having not
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
operation of the decision of this Court. The interpretation
of the provision becomes effective from the date of
enactment of the provision. In M.A. Murthy v. State of
Karnataka [(2003) 7 SCC 517 : 2003 SCC (L&S) 1076] ,
it was held that the law declared by the Supreme Court is
normally assumed to be the law from inception. Prospective
operation is only exception to this normal rule. [...]”
(Emphasis supplied)

98. In yet another decision of this Court in Manoj Parihar and Others
v. State of Jammu and Kashmir and Others reported in (2022) 14
SCC 72, where the bench comprised of one of us (J.B. Pardiwala, J.),
it was opined that the doctrine of prospective overruling must be
922 [2025] 4 S.C.R.

Supreme Court Reports

exercised in explicit terms and therefore, the law declared by this
Court would have a retrospective effect unless stated otherwise. The
observations are reproduced as thus:
“26. What was done in Bimlesh Tanwar [Bimlesh Tanwar v.
State of Haryana, (2003) 5 SCC 604 : 2003 SCC (L&S)
737] was actually a declaration of law. Therefore, the same
will have retrospective effect. In P.V. George v. State of
Kerala [P.V. George v. State of Kerala, (2007) 3 SCC 557 :
(2007) 1 SCC (L&S) 823] , this Court held that “the law
declared by a court will have retrospective effect, if not
otherwise stated to be so specifically”.
27. This Court was conscious of the fact, as could be seen
from para 19 of the Report in P.V. George [P.V. George v.
State of Kerala, (2007) 3 SCC 557 : (2007) 1 SCC (L&S)
823] , that when the doctrine of stare decisis is not adhered
to, a change in the law may adversely affect the interest
of the citizens. But still this Court held that the power
to apply the doctrine of prospective overruling (so as
to remove the adverse effect) must be exercised in the
clearest possible term.
28. Therefore, it is clear that anything done as a
consequence of the decision of this Court in P.S. Ghalaut
[P.S. Ghalaut v. State of Haryana, (1995) 5 SCC 625 :
1995 SCC (L&S) 1270] , cannot stand since this Court did
not apply the doctrine of prospective overruling in Bimlesh
Tanwar [Bimlesh Tanwar v. State of Haryana, (2003) 5
SCC 604 : 2003 SCC (L&S) 737] in express terms. [...]”
(Emphasis supplied)

c. The doctrine of “Prospective Overruling” and factors which
may lead to the application thereof.
99. Prospective Overruling which was initially a doctrine familiar to
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
[2025] 4 S.C.R. 923

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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 (1999) 3
SCC 362 elaborated on the reasons which necessitate the prospective
declaration of law by this Court, by stating that the object would be
to avoid the reopening of settled issues, to prevent the multiplicity of
proceedings, to curb uncertainty in law and thwart avoidable litigation.
It was stated that, on the application of this doctrine, it is deemed
that all actions taken contrary to the declaration of law but prior to
the date of the declaration, are validated. The subordinate forums
which are legally bound to apply the declaration of law made by
this Court are also required to apply such a dictum to cases which
would arise in future only. The pertinent observations made in the
decision are reproduced hereinbelow:
“4. We are unable to agree with this view of the Tribunal.
It is to be noted that the prospectivity given to Sabharwal
case [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995)
29 ATC 481] was obviously on the ground that there was
a doubt in regard to the position of law until the same was
clarified by this Court in Sabharwal case [(1995) 2 SCC
745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] . The
decision of the DPC was taken in June 1993; much prior
to the judgment in Sabharwal case [(1995) 2 SCC 745 :
1995 SCC (L&S) 548 : (1995) 29 ATC 481] . It is only
pursuant to the decision of the DPC, the appellant came
to be promoted on 27-6-1994 which is also a date prior to
the delivery of the judgment in Sabharwal case [(1995) 2
SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] .
In our opinion, the prospectivity was given to Sabharwal
924 [2025] 4 S.C.R.

Supreme Court Reports

case [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995)
29 ATC 481] only to see that the status prevailing prior
to the judgment in Sabharwal case [(1995) 2 SCC 745 :
1995 SCC (L&S) 548 : (1995) 29 ATC 481] should not
be disturbed.
5. The prospective declaration of law is a devise
innovated by the Apex Court to avoid reopening
of settled issues and to prevent multiplicity of
proceedings. It is also a devise adopted to avoid
uncertainty and avoidable litigation. By the very
object of prospective declaration of law, it is deemed
that all actions taken contrary to the declaration of
law prior to its date of declaration are validated. This
is done in the larger public interest. Therefore, the
subordinate forums which are legally bound to apply
the declaration of law made by this Court are also
duty-bound 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 reported in (1990) 1 SCC 109, held that the provisions of State
[2025] 4 S.C.R. 925

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

enactments permitting the levy of excise duty in the form of vend fee
must be struck down prospectively from the date of its judgment i.e.,
from 25.10.1989. There was, however, some confusion on whether
the State was entitled to collect the taxes in respect of the period
prior to 25.10.1989 or not. As per the majority, prospective overruling,
despite the terminology is only a recognition of the principle that the
court moulds the relief claimed in order to meet the justice of the
case, more particularly justice not in its logical but in its equitable
sense. Prospective overruling could be seen as a method which was
evolved by the courts to adjust the competing rights of the parties
so as to save transactions, whether statutory or otherwise, that were
effected by the earlier law. Therefore, it was held that it would not be
right to say that upon applying the doctrine of prospective overruling,
an invalid law has been held to be valid during the past period. All
that is done is that the declaration of invalidity of the legislation is
directed to take effect from a future date. In the facts of the case, it
was elaborated that what was intended was that the status quo as
on 25.10.1989 be maintained as regards the actual payment or levy
concerned. Hence, what had gone into the coffers of the Government
with or without any strings attached, was to remain with it and what
was not received was also not to be later realised by the Government.
The relevant observations are reproduced hereinbelow:
“27. In the ultimate analysis, prospective overruling, despite
the terminology, is only a recognition of the principle that
the court moulds the reliefs claimed to meet the justice
of the case — justice not in its logical but in its equitable
sense. As far as this country is concerned, the power has
been expressly conferred by Article 142 of the Constitution
which allows this Court to “pass such decree or make
such order as is necessary for doing complete justice
in any cause or matter pending before it”. In exercise of
this power, this Court has often denied the relief claimed
despite holding in the claimants’ favour in order to do
“complete justice”.
28. Given this constitutional discretion, it was perhaps
unnecessary to resort to any principle of prospective
overruling, a view which was expressed 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 :
926 [2025] 4 S.C.R.

Supreme Court Reports

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 that this Court intended the
status quo as on 25-10-1989 to be maintained as regards
actual payment or levy was concerned. What had gone to
the coffers of the Government with or without any strings
attached, was to remain with it and what was not received
could not be realised by the Government.

xxx xxx xxx
36. It is true that the effect of a legislation without legislative
competence is that it is non est. (See Behram Khurshid
Pesikaka v. State of Bombay [(1954) 1 SCC 240 : AIR
1955 SC 123 : (1955) 1 SCR 613] at SCR pp. 652, 653,
R.M.D. Chamarbaugwalla v. Union of India [AIR 1957 SC
628 : 1957 SCR 930] at p. 940, M.P.V. Sundararamier &
Co. v. State of A.P. [AIR 1958 SC 468 : 1958 SCR 1422]
at SCR p. 1468 and Mahendra Lal Jaini v. State of U.P.
[2025] 4 S.C.R. 927

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

[AIR 1963 SC 1019 : 1963 Supp (1) SCR 912] at SCR
pp. 937-41.)
37. Nevertheless a law enacted without legislative
competence remains on the statute-book till a court of
competent jurisdiction adjudicates thereon and declares it
to be void. When the court declares it to be void it is only
then that it can be said that it is non est for all purposes.
In Synthetics and Chemicals case [(1990) 1 SCC 109]
the invalidity of the provisions was a declaration under
Article 141 of the Constitution. It was for doing complete
justice that the court in exercise of its jurisdiction
under Article 142 moulded the relief in such a way as
to give effect to its declaration prospectively. It is not
possible to accept that such an order of prospective
overruling is contrary to law. An invalid law has not
been held to be valid. All that has happened is that the
declaration of invalidity of the legislation was directed
to take effect from a future date.”
(Emphasis supplied)

102. In a concurring opinion, Ruma Pal, J., while responding to the
argument that the court cannot breathe life into a dead or invalid
statute up to the date of its judgment by subscribing to prospectivity,
stated that such a contention proceeds on a misunderstanding of
the effect of prospective overruling. It was opined that when the
doctrine is applied, the Court must not be seen to be authorising or
validating something that had been declared to be illegal or void,
nor must the decision be construed as imbuing the legislature with
competence to impose the levy up until the law was declared to be
invalid. The relevant observations 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
928 [2025] 4 S.C.R.

Supreme Court Reports

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 proceeds on a
misunderstanding of the effect of prospective overruling.
As has been elaborately stated in my learned brother’s
judgment, by prospective overruling the court does not
grant the relief claimed even after holding in the claimant’s
favour. In this case, the Court held that the statutory
provision imposing vend fee was invalid. Strictly speaking,
this would have entitled the appellant to a refund from the
respondents of all amounts collected by way of vend fee.
But because, as stated in Synthetics [(1990) 1 SCC 109]
decision itself, over a period of time imposts and levies
had been imposed by virtue of the earlier decision and that
the States as well as the petitioners and manufacturers
had adjusted their rights and their positions on that basis,
this relief was denied. The Court did not, by denying the
relief, authorise or validate what had been declared to
be illegal or void nor did it imbue the legislature with
competence up to the date of the judgment.”
(Emphasis supplied)

103. Therefore, the court does not make legal, something that is illegal,
for the past period by invoking the doctrine of prospective overruling.
On the contrary, upon giving due consideration to what has been
expounded in Somaiya Organics (supra), it is clear that the idea
behind the invocation of the doctrine is to meet the justice of each
case in the most practical and equitable sense. In addition to this, the
doctrine also seeks to adjust and balance the competing rights of all
[2025] 4 S.C.R. 929

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

the parties involved i.e., parties who on one hand, had acted solely
on the basis of an invalid law or an overruled decision and altered
their respective rights and positions, and on the other, the parties
who had brought a successful case in establishing that the law or
decision which existed in operation was invalid. To prevent the chaotic
unscrambling of actions done in the past, a middle-ground is reached
by postponing the decision declaring the invalidity to a particular date
while keeping in mind the larger interest of doing complete justice.
That ensuring “complete justice” in the most equitable way is the true
essence of the doctrine is also evident from the fact that this Court
also has, on several occasions, prescribed the limits of retroactivity
of the law declared by it.
104. Such a demarcation of the limits of retroactivity was done in Kailash
Chand Sharma v. 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 operated at the relevant time. A cloud of doubt was
cast on the said practice only at a time when the selection process
was completed and the results were declared or about to be declared.
Therefore, under such circumstances, it was considered proper to
apply the impugned judgment dated 18.11.1999 rendered by the
Full Bench of the High Court prospectively. Such a recourse was
also considered appropriate considering that none of the appointed
or selected candidates were made parties to the respective writ
930 [2025] 4 S.C.R.

Supreme Court Reports

petitions before the High Court. Therefore, this Court thought fit
to not implement the Full Bench decision of the High Court, which
treaded a new path, to the detriment of the candidates who were
already appointed. With a view to balance the competing claims,
the relief was confined only to the petitioners who were affected
by the grant of bonus marks and who had moved the High Court
on or before 17.11.1999. Therefore, the appointments made on or
after 18.11.1999 was subject to the claims of the writ petitioners
i.e., if upon a fresh consideration of the candidature of the writ
petitioners as against those candidates who were appointed on or
after 18.11.1999, the writ petitioners were found to have had superior
merit, they would be offered appointments even by displacing the
candidates appointed on or after 18.11.1999, if necessary. In other
words, only for the petitioners who had moved the High Court prior
to 18.11.1999, retrospective benefit of the Full Bench decision was
given. Otherwise, the appointments made up to 17.11.1999 were not
to be reopened or reconsidered. However, the aforesaid relief was
tailored with a clear disclaimer that it was moulded in view of the
special facts and circumstances of the case and while acting within
the jurisdiction conferred upon this Court under Article 142 of the
Constitution. The relevant observations are reproduced hereinbelow:
“42. [...] In the present case, the legality of the selection
process with 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. A cloud was cast on the said decisions only
after the selection process was completed and the results
were declared or about to be declared. It is, therefore, a
fit case to apply the judgment of the Full Bench rendered
subsequent to the selection prospectively. 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
[2025] 4 S.C.R. 931

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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
not a fatal flaw.
43. Prospectivity to what extent is the next question.[...]

xxx xxx xxx
46. Having due regard to the rival contentions adverted
to above and keeping in view the factual scenario and
the need to balance the competing claims in the light
of acceptance of prospective overruling in principle, we
consider it just and proper to confine the relief only to
the petitioners who moved the High Court and to make
appointments made on or after 18-11-1999 in any of the
districts subject to the claims of the petitioners. Accordingly,
we direct:
1. The claims of the writ petitioners should be
considered afresh in the light of this judgment
vis-à-vis the candidates appointed on or after
18-11-1999 or those in the select list who are
yet to be appointed. On such consideration, if
those writ petitioners are found to have superior
merit in case the bonus marks of 10% and/
or 5% are excluded, they should be offered
appointments, if necessary, by displacing the
candidates appointed on or after 18-11-1999.
2. The appointments made up to 17-11-1999
need not be reopened and reconsidered in the
light of the law laid down in this judgment. [...]
932 [2025] 4 S.C.R.

Supreme Court Reports

47. Before parting, we must say that we have moulded
the relief as above on a consideration of special facts and
circumstances of this case acting within the framework
of powers vested in this Court under Article 142 of the
Constitution. Insofar as the relief has been granted or
modified in the manner aforesaid, this judgment may not
be treated as a binding precedent in any case that may
arise in future.”
(Emphasis supplied)

105. Therefore, the birth 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 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, the doctrine has been applied in order
to not unsettle everything that was undertaken in the past either on
account of an existing law/rule or a decision of the court. The object
is to ensure a smooth transition of the law and not disturb matters
that have attained finality. Time and again, it has 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 prospectively i.e., to orders
[2025] 4 S.C.R. 933

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

of punishment passed after the date of its decision on 20.11.1990.
In other words, the law laid down in Mohd. Ramzan Khan (supra)
was not applicable to the orders of punishment passed before the
aforesaid date notwithstanding the fact that the proceedings arising
out of the same were pending in courts even after that date. Such
pending proceedings were to be decided in accordance with the law
prevalent prior to the said date.
107. While holding so, it was stated that courts can make the law laid
down by them prospective in operation to prevent the unsettlement
of settled positions, to prevent administrative chaos and to meet the
ends of justice. The law on the subject being in a state of flux was
also a factor that was emphasized to a large extent. In B. Karunakar
(supra), the authorities all over the country had proceeded on the basis
that there was no need to furnish a copy of the report of the enquiry
officer to the delinquent employee and innumerable employees were
also punished as a result of those proceedings. There were some
cases wherein the orders of punishment had become final and in
some others, the matters were pending in courts at different stages.
Reopening all those disciplinary proceedings would have resulted
in grave prejudice to the administration which was considered as
far outweighing the benefit which would potentially accrue to the
employees concerned if the disciplinary proceedings were allowed
to be disturbed. Therefore, on a holistic perspective and giving
due regard to both administrative reality and public interest, it was
considered necessary that the prospectivity given to the decision
in Mohd. Ramzan Khan (supra) not be disturbed. The relevant
observations of the majority opinion are reproduced hereinbelow:
“34. [...] It is now well settled that the courts can make
the law laid down by them prospective in operation to
prevent unsettlement of the settled positions, to prevent
administrative chaos and to meet the ends of justice. In this
connection, we may refer to some well-known decisions
on the point.
43. [...] It has, therefore, to be accepted that at least till this
Court took the view in question in Mohd. Ramzan Khan
case [(1991) 1 SCC 588 : 1991 SCC (L&S) 612 : (1991)
16 ATC 505] the law on the subject was in a flux. Indeed,
it is contended on behalf of the appellants/petitioners
before us that the law on the subject is not settled even
934 [2025] 4 S.C.R.

Supreme Court Reports

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 punishment which are passed by
the disciplinary authority after November 20, 1990. This is
so, notwithstanding the ultimate relief which was granted
there which, as pointed out earlier, was per incuriam. No
order of punishment passed before that date would be
challengeable on the ground that there was a failure to
furnish the enquiry report to the delinquent employee.
The proceedings pending in courts/tribunals in respect of
orders of punishment passed prior to November 20, 1990
will have to be decided according to the law that prevailed
prior to the said date and not according to the law laid
down in Mohd. Ramzan Khan case [(1991) 1 SCC 588 :
1991 SCC (L&S) 612 : (1991) 16 ATC 505] . This is so
notwithstanding the view taken by the different benches of
the Central Administrative Tribunal or by the High Courts
or by this Court in R.K. Vashisht case [1993 Supp (1) SCC
431 : 1993 SCC (L&S) 153 : (1993) 23 ATC 444 (II)] .
44. The need to make the law laid down in Mohd. Ramzan
Khan case [(1991) 1 SCC 588 : 1991 SCC (L&S) 612 :
(1991) 16 ATC 505] prospective in operation requires no
[2025] 4 S.C.R. 935

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

emphasis. As pointed out above, in view of the unsettled
position of the law on the subject, the authorities/
managements all over the country had proceeded on
the basis that there was no need to furnish a copy of the
report of the enquiry officer to the delinquent employee
and innumerable employees have been punished
without giving them the copies of the reports. In some
of the cases, the orders of punishment have long since
become final while other cases are pending in courts at
different stages. In many of the cases, the misconduct
has been grave and in others the denial on the part of
the management to furnish the report would ultimately
prove to be no more than a technical mistake. To reopen
all the disciplinary proceedings now would result in grave
prejudice to administration which will far outweigh the
benefit to the employees concerned. Both administrative
reality and public interests do not, therefore, require that
the orders of punishment passed prior to the decision
in Mohd. Ramzan Khan case [(1991) 1 SCC 588 : 1991
SCC (L&S) 612 : (1991) 16 ATC 505] without furnishing
the report of the enquiry officer should be disturbed and
the disciplinary proceedings which gave rise to the said
orders should be reopened on that account. Hence we
hold as above.”
(Emphasis supplied)

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
936 [2025] 4 S.C.R.

Supreme Court Reports

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 question emerges whether it
would be applied retrospectively to the past transactions
or prospectively to the transactions in future only. [...]

xxx xxx xxx
73. It would, thus, be clear that the Supreme Court of
the United States of America has consistently, while
overruling previous law or laying a new principle, made
its operation prospective and given the relief to the party
succeeding and in some cases given retrospectively
and denied the relief in other cases. As a matter of
constitutional law retrospective operation of an overruling
decision is neither required nor prohibited by the
Constitution but is one of judicial attitude depending on
the facts and circumstances in each case, the nature
and purpose the particular overruling decision seeks to
serve. The court would look into the justifiable reliance
on the overruled case by the administration; ability to
effectuate the new rule adopted in the overruling case
without doing injustice; the likelihood of its operation
whether substantially burdens the administration of justice
or retards the purpose. All these factors are to be taken
into account while overruling the earlier decision or laying
down a new principle. The benefit of the decision must
be given to the parties before the Court even though
applied to future cases from that date prospectively
would not be extended to the parties whose adjudication
either had become final or matters are pending trial or
in appeal. [...] This Court would adopt retroactive or
non-retroactive effect of a decision not as a matter of
constitutional compulsion but a matter of judicial policy
determined in each case after evaluating the merits and
demerits of the particular case by looking to the prior
history of the rule in question, its purpose and effect and
whether retroactive operation will accelerate or retard
[2025] 4 S.C.R. 937

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

its operation. The reliance on the old rule and the cost
of the burden of the administration are equally germane
and be taken into account in deciding to give effect to
prospective or retrospective operation.”
(Emphasis supplied)

109. Following the spirit of the discussion in B. Karunakar (supra), this
Court has invoked the doctrine of prospective overruling only when
it has been appropriate and absolutely necessary to do so. In K.
Madhava Reddy and Others v. State of Andhra Pradesh and
Others reported in (2014) 6 SCC 537, it 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 to
us to be either just, fair or equitable especially when upon
reversion the State does not propose to promote them to
the higher positions within their zone/cadre because such
higher posts are occupied by other officers, most if not all
of whom are junior to the petitioners and who may have
to be reverted to make room for the petitioners to hold
those higher posts. Reversion of the petitioners to their
938 [2025] 4 S.C.R.

Supreme Court Reports

parent cadre is therefore bound to have a cascading effect,
prejudicing even those who are not parties before us.

xxx xxx xxx
24. In the result, we allow these appeals, set aside the
orders passed by the High Court and hold that while GOMs
Nos. 14 and 22 have been rightly declared to be ultra
vires of the Presidential Order by the State Administrative
Tribunal, the said declaration shall not affect the promotions
and appointments made on the basis of the said GOMs
prior to 7-11-2001, the date when Jagannadha Rao [V.
Jagannadha Rao v. State of A.P., (2001) 10 SCC 401 :
2002 SCC (L&S) 872] was decided by this Court. The
parties are left to bear their own costs.”
(Emphasis supplied)

110. On the other hand, in Justice Chandrashekaraiah (Retired) v.
Janekere C. Krishna and Others reported in (2013) 3 SCC 117
while holding that the appointment of the Upa-Lokayukta made in the
absence of any consultation with the Chief Justice was void ab-initio,
the Court refused to apply the principle of prospective overruling to
save the appointment in question. It was stated that there was no
overwhelming reason to save the appointment from attack and the
defence that such were the appointments made in the past would
be of no avail since merely because a wrong had been committed
several times in the past, would not mean that it must be allowed to
persist, otherwise the wrong would never be corrected. The relevant
observations of this Court are reproduced hereinbelow:
“156. It was submitted that the practice followed for the
appointment of the Upa-Lokayukta in the present case is
the same or similar to the practice followed in the past
and, therefore, this Court should not interfere with the
appointment already made. If at all interference is called for,
the doctrine of “prospective overruling” should be applied.
157. I am not inclined to accept either contention. Merely
because a wrong has been committed several times
in the past does not mean that it should be allowed to
persist, otherwise it will never be corrected. The doctrine
[2025] 4 S.C.R. 939

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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 reproduced as thus:
“3. There is no doubt that this Court has evolved the doctrine
of prospective overruling in order to avoid confusion in
matters where large number of parties have settled their
affairs by the law which stood before the overruling was
done by this Court. We are, however, unable to accede to
the request made by the learned counsel for the appellants
for two reasons. First, we are informed at the Bar that the
amendment to the Rules was made in the year 1992 and
CAT set aside the amendment in the year 2000. During
this period, there were only 12 promotions that were
granted under the amended Rules. As a consequence
of the order of CAT being upheld by the judgment [Union
of India v. I.P. Awasthi, WP (C) No. 5460 of 2001, order
dated 5-2-2002 (Del)] of the High Court under challenge,
it is only 12 cases which have to be reopened. We are
not, therefore, satisfied that large public interest is likely
to be affected by permitting the amended Rule being
struck down retrospectively from the date on which it was
amended. Second, the doctrine of prospective overruling
940 [2025] 4 S.C.R.

Supreme Court Reports

pertains only to the powers of this Court. As far as CAT
is concerned, we doubt that there is any such doctrine
available for exercise of its powers. For both reasons, we
decline the suggestion made.”
(Emphasis supplied)

112. In Union of India and Another v. Ganpati Dealcom Private Limited
reported in (2023) 1 SCC 315, it was succinctly explained that the
application of the doctrine is only a limited exception and must be
resorted to when substantial actions have been undertaken under
the invalid laws such that going back to the original position would
be next to impossible and observed as thus:
“66. At this stage, we may only note that when a court
declares a law as unconstitutional, the effect of the same
is that such a declaration would render the law not to exist
in the law books since its inception. It is only a limited
exception under constitutional law, or when substantial
actions have been undertaken under such unconstitutional
laws that going back to the original position would be next
to impossible. In those cases alone, would this Court take
recourse to the concept of “prospective overruling”.”
(Emphasis supplied)

113. Therefore, it is clear as a noon day that 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. 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
[2025] 4 S.C.R. 941

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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 prospective date, ordinarily from the date of the judgement of the
overruling decision.

d. It would be open for another bench to subsequently decide
on the application of the doctrine of prospective overruling
to a past decision.
114. Another pertinent question for the purpose of our discussion would be,
whether the prospective operation of a particular decision delivered in
the past can be decided subsequently by a different bench, which is
concerned with the same question of law, especially when the previous
decision is silent on the question of prospectivity or retrospectivity.
There has been some debate as to whether this would amount to a
review of the said decision under a non-review jurisdiction.
115. In Saurabh Chaudri (Dr.) and Others v. Union of India and Others
reported (2004) 5 SCC 618, a constitutional Bench of this Court
decided on the issue of the temporal operation of a judgment already
declared. Here, several applications were filed seeking clarifications
and directions for implementing the judgment of a Coordinate Bench
of this Court in Saurabh Chaudri v. Union of India reported in (2003)
11 SCC 146 which concluded that for post-graduate (PG) admission
to medical colleges, the all-India quota must be increased from 25%
to 50%. The aforesaid decision was rendered on 04.11.2003 but
was silent both on whether it would be applicable to the process
of admissions which had already commenced or if it would have
prospective application. In a majority opinion, it was declared that
the judgement of the Coordinate Bench in Saurabh Chaudri (supra)
delivered on 04.11.2003 would be implemented prospectively from the
academic year 2005-06 since the entire admission procedure for the
academic year 2004-05 was already planned on the basis of the 25%
all-India quota. However, S.B. Sinha, J in his minority opinion was of
the view that the decision must be implemented from the academic
year 2004-05 itself since the examinations were conducted much after
the rendition of the judgment on 04.11.2003 and any action taken
contrary to the decision thereto must be considered to be taken by the
appropriate authorities at their own peril. The relevant observations
made by this Court, in its majority opinion, is as follows:
942 [2025] 4 S.C.R.

Supreme Court Reports

“5. In our opinion, it would be appropriate to hold and
direct the decision in Saurabh Chaudri case [(2003) 11
SCC 146] being made applicable 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. S.B.
Sinha, J., went on to observe that if the decision of the initial judgment
can be given effect to, then a direction which would run contrary
to that ratio must not be issued subsequently. It was in this context
that he opined that, a prayer seeking the prospective declaration of
a decision which has already been made would amount to asking
for a review and that would not be permissible. Therefore, according
to him, the decision delivered on 04.11.2003 could not have been
given effect to, prospectively, from the academic year 2005. The
relevant observations are as follows:
“20. By reason of a judgment, as is well known, a law is
declared. Declaration of such law may affect the rights
of the parties retrospectively. Prospective application of
a judgment by the court must, therefore, be expressly
stated.[...]

xxx xxx xxx
[2025] 4 S.C.R. 943

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

32. A statute is applied prospectively only when thereby a
vested or accrued right is taken away and not otherwise.
(See S.S. Bola v. B.D. Sardana [(1997) 8 SCC 522] .) A
judgment rendered by a superior court declaring the law
may even affect the right of the parties retrospectively.

xxx xxx xxx
34. Furthermore, it is extremely doubtful whether a
Constitution Bench can modify a judgment rendered by
a different Constitution Bench even in exercise of its
jurisdiction under Article 142 of the Constitution of India.
The jurisdiction of this Court under Article 142 of the
Constitution of India must be applied at the time of rendition
of the judgment and not thereafter. After a judgment is
rendered the Court can only exercise its power of review,
if it intends to take a different view from the one rendered
in the main judgment. Review of the judgment cannot be
granted in the garb of a clarification. (See Delhi Admn. v.
Gurdip Singh Uban [(2000) 7 SCC 296] .)
35. Furthermore, an order of review or modification of
a judgment should not also ordinarily be passed at the
behest of the applicants who are not parties to the writ
petition. [...]
36. We must notice that it is not a case of the Union of
India that the judgment in Saurabh Chaudri [(2003) 11
SCC 146] cannot be given effect to even at this stage.
If it can be given effect to the Court should not issue a
direction which would run contrary to the ratio laid down
by this Court in the main judgment, particularly when the
examinations 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
944 [2025] 4 S.C.R.

Supreme Court Reports

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 altogether different bench was tasked with deciding
on the prospective applicability of a previous decision rendered by a
completely different bench. This question was, however, directly in
issue before a three-judge bench of this Court in Jarnail Singh and
Others v. Lachhmi Narain Gupta and Others reported in (2022)
10 SCC 595. Herein, one of the issues was whether the judgment in
M. Nagaraj v. Union of India reported in (2006) 8 SCC 212 could
be said to operate prospectively. M. Nagaraj (supra) upheld the
constitutional validity of Article 16(4-A) subject to the State collecting
quantifiable data showing inadequate representation. The law laid
down therein applied from 17.06.1995 i.e., the date on which Article
16(4-A) came into force. While agreeing with the contention that the
decision in M. Nagaraj (supra) must be given prospective effect from
the date of its decision on 19.10.2006, the Court referred to the US
Supreme Court decision in Victor Linkletter v. Victor G. Walker
reported in 1965 SCC OnLine US SC 126 where an earlier judgement
of the US Supreme Court in Mapp v. Ohio reported in 367 U.S. 643
was declared to be prospective in operation after considering the
consequences that will ensue with its retrospective operation. With
a view to avoid any confusion, and also to prevent the debilitating
effect that it would have had on a very large number of employees,
the Court declared that a prior judgment of this Court can be made
prospectively applicable by a different or even a smaller bench of
this Court subsequently, in exercise of the power to do complete
justice under Article 142. Furthermore, it was held that it would not
be an absolute rule that prospective overruling or the prospective
[2025] 4 S.C.R. 945

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

operation of a decision must be declared only by the bench which
has rendered the decision in question. The contrary view taken by
this Court in M.A. Murthy v. State of Karnataka reported in (2003)
7 SCC 517 that there shall be no prospective overruling unless
indicated in the “particular decision” was declared to be obiter and
not binding. Therefore, the three-judge bench in Jarnail Singh
(supra) declared the decision of the five-judge Constitution Bench
in M. Nagaraj (supra) to have prospective operation. The relevant
observations are as thus:
“62. This Court in Golak Nath [Golak Nath v. State of
Punjab, (1967) 2 SCR 762 : AIR 1967 SC 1643] and Ashok
Kumar 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 detrimental to the interests of a number
of civil servants and would have an effect of unsettling
the seniority of individuals over a long period of time, it is
necessary that the judgment of M. Nagaraj [M. Nagaraj v.
Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S)
1013] should be declared to have prospective effect.”
(Emphasis supplied)
946 [2025] 4 S.C.R.

Supreme Court Reports

e. Applicability or non-applicability of doctrine of prospective
overruling in criminal matters, so far.
118. As repeatedly discussed in the aforesaid parts of this judgment,
the doctrine of prospective overruling was designed to prevent the
unravelling of past transactions and the re-opening of matters which
have already attained finality. In so far as the applicability of the
doctrine or a rationale similar to it, to matters pertaining to criminal
law are concerned, this Court has in the past held that acquittals
granted on the basis of the earlier position/interpretation of law must
not be interfered with.
119. In State of Kerala and Others v. Alassery Mohammed and Others
reported in (1978) 2 SCC 386, the issue pertained to whether non-
compliance with the requirement of Rule 22 of the Prevention of
Food Adulteration Rules, 1955 would vitiate the entire trial and the
conviction recorded therein. While this Court’s decision in Rajal
Das Guru Namal Pamanani v. State of Maharashtra reported in
(1975) 3 SCC 375 held that the quantities mentioned under the
said rule are required for a correct analysis and any shortage in
the said quantity is not permitted by the Statute, however, Alassery
(supra) held that if the quantity sent to the Public Analyst, even
though less than prescribed, is sufficient and enables the Public
Analyst to make a correct analysis, then merely because the
quantity sent was not in strict compliance with the Rule will not
result in the nullification of the report and obliterate its evidentiary
value. This was held by keeping in mind that it would endanger
public health to acquit offenders on technical grounds which have
no substance. However since Pamanani (supra) had held the
field for a significant time and several prosecutions had resulted
in acquittals in the meantime, the Court found it fit to dispose of
the appeals by only laying down the correct proposition of law.
Neither were the acquittals of any of the respondents set aside
nor were their cases sent back to the Courts below. 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
[2025] 4 S.C.R. 947

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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 appearing
with Mr K.R. Nambiar and Mr Sudhakaran stated before
us that the State was interested more in the correct
enunciation of the law than in seeing that the respondents
in these appeals are convicted. They were not anxious to
prosecute these matters to obtain ultimate conviction of the
respondents. A large number of the other appeals are by
the Municipal Corporation of Delhi for whom the Attorney
General appeared assisted by Mr B.P. Maheshwari.
Although a categorical stand was not taken on behalf of
the appellants in these appeals as the one taken in the
Kerala cases, eventually, the learned Attorney General
did not seriously object to the course indicated by us. In
the few Bombay appeals M/s V.S. Desai and M.N. Shroff
showed their anxiety for obtaining ultimate convictions
of the offenders, but we do not find sufficient reason for
passing a different kind of order in the Bombay appeals.
In similar situations in the case of State of Bihar v. Hiralal
Kejriwal [AIR 1960 SC 47 : (1960) 1 SCR 726 : 1960 Cri
LJ 150] this Court refused to exercise its discretionary
jurisdiction under Article 136 of the Constitution and did
not order the continuance of the criminal proceeding any
further. In Food Inspector, Calicut Corporation v. Cherukattil
Gopalan [(1971) 2 SCC 322 : 1971 SCC (Cri) 522 : 1971
Supp SCR 721] this Court said at p. 730 :
948 [2025] 4 S.C.R.

Supreme Court Reports

“But in view of the fact that the appellant has
argued the appeal only as a test case and does
not challenge the acquittal of the respondents,
we merely set aside the order and judgment of
the High Court. But we may make it clear that
apart from holding the respondents technically
guilty, we are not setting aside the order of
acquittal passed in their favour.”
19. For the reasons stated above, we dispose of these
appeals by merely laying down the correct proposition
of law but do not make any consequential orders setting
aside the acquittal of any of the respondents or sending
back the cases to the courts below or convicting any of
them by an order of this Court.”
(Emphasis supplied)

120. In Alassery (supra), there was no mention of the doctrine of
prospective overruling being applied to the facts of the case.
What was done was that the Court refrained from setting aside
the acquittals of any of the respondents therein or sending their
cases back for re-trial to the appropriate court or convicting any 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.
[2025] 4 S.C.R. 949

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

121. The applicability or discussion relating to the doctrine of prospective
overruling can be noticed in a few other matters under the criminal
arena, though prominently on matters pertaining to procedural law.
In Ramesh Kumar Soni v. State of Madhya Pradesh reported in
(2013) 14 SCC 696, the Court was concerned with an amendment
changing the triability of certain offences i.e., from the Judicial
Magistrate First Class to the Court of Session and its effect on the
cases pending trial or pending investigation. This Court had held
that any amendment shifting the forum of the trial had to be, on
principle, retrospective in nature in the absence of any indication
to the contrary in the Amendment Act. This retrospective operation
of amendments relating to procedure would be subject to the
exception that the earlier procedure which was correctly adopted
and which led to the proceedings being concluded under the old law
cannot be reopened for the purpose of applying the new procedure.
Furthermore, it was also reiterated that an accused does not possess
a “vested right of forum” for his trial. However, the decision of a Full
Bench of the Madhya Pradesh High Court in Amendment of First
Schedule of Criminal Procedure Code by Criminal Procedure
Code (M.P. Amendment) Act, 2007, In re, reported in (2008) SCC
OnLine MP 185 had opined that all the cases which were pending
before the Judicial Magistrate as on 22.02.2008 i.e., the date of the
amendment, would remain unaffected by the Amendment. Therefore,
the Full Bench of the High Court directed that all the cases which
were pending before the Judicial Magistrate and had already been
committed to the Court of Session due to the coming into force of
the amendment, to be sent back to the Judicial Magistrate. This
Court in Ramesh Kumar Soni (supra) disagreed and overruled the
decision of the Full Bench but only prospectively. This was done
because the trial of the cases that were sent back from the Sessions
Court to the Judicial Magistrate under the orders of the Full Bench
may have also been concluded or may be at an advanced stage.
Therefore, any change of forum at that stage would have caused
unnecessary and avoidable hardship to the accused if they were
transferred again to the Court of Sessions in light of the conclusion
that an amendment to procedural law would operate retrospectively.
The relevant observations are reproduced hereinbelow:
“21. The upshot of the above discussion is that the view
taken by the Full Bench [Amendment of First Schedule
950 [2025] 4 S.C.R.

Supreme Court Reports

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, in our opinion, is one in which we
need to make it clear that the overruling of the Full Bench
decision of the Madhya Pradesh High Court will not affect
cases that have already been tried or are at an advanced
stage before the Magistrates in terms of the said decision.”
(Emphasis supplied)

122. On a conspectus of the aforesaid discussion on the doctrine of
prospective overruling, the following can be summarised:
i. The default rule is that the overruling of a decision generally
operates retrospectively. This is because a judgement which
interprets a statute or provision declares the meaning of the
statute as it should have been construed from the date of its
enactment and what has been declared to be the law of the
land must be held to have always been the law of the land. This
rationale also stems from the Blackstonian rule 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
[2025] 4 S.C.R. 951

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

of the law, is only its discoverer. Therefore, if a subsequent
decision alters or overrules the earlier one, it cannot be said
to have made a new law. The correct principle of law is just
discovered and applied retrospectively.
ii. Since resorting to the doctrine of “prospective overruling” is
an exception to the normal rule that a judgement or decision
applies retrospectively and to the general rule of doctrine of
precedent, an express declaration by the court that its decision
is prospectively applicable is absolutely necessary. Prospectivity
as a concept cannot be considered to be inhered in situations
since the intention to attribute prospectivity to a decision must
be limpid and clear.
iii. In Jarnail Singh (supra) this Court took the view that even if
the overruling decision does not indicate that its decision is
to apply with prospective effect, a different or even a smaller
bench of this Court, subsequently, can declare that the doctrine
of prospective overruling must be applied to the prior judgment
of this Court, in exercise of the power under Article 142 to do
complete justice to the matter at hand.
iv. In Baburam (supra), this Court was of the view that, on the
application of the doctrine of prospective overruling, it is deemed
that all actions taken contrary to the declaration of law but prior
to the date of the declaration, are validated. 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
952 [2025] 4 S.C.R.

Supreme Court Reports

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, the
doctrine is being applied with a view to not unsettle everything
that was undertaken in the past either on account of an existing
law/rule or due to the decision of a court. The object is to ensure
a smooth transition of the law and not disturb matters that have
attained finality. Time and again, it has been reiterated that
prospective overruling is an accepted doctrine as an extended
facet of stare decisis. The doctrine involves giving effect to the
new law laid down from a prospective date, ordinarily from the
date of the judgement of the overruling decision. Sometimes,
while declaring that a decision would be prospectively applicable,
courts have granted limited relief to the parties or petitioners in
question retrospectively.
vi. There are several factors or considerations which may weigh
with the court before the doctrine of prospective overruling is
applied. Some broad considerations include – to meet the ends
of justice, prevent the unsettlement of settled positions, mitigate
any administrative chaos keeping in mind the pragmatic realities,
curb any uncertainty in law, thwart avoidable litigation, safeguard
public interest and preserve the avowed object and purpose that
is embodied in the overruling decision. The possibility of impact
on a large number of parties or individuals, the impossibility of
restoring the original and correct position of law, the existence
of an overwhelming reason favouring prospectivity or where
the law on the subject been in a state of flux for a significant
period of time are also relevant. Therefore, the legitimate or
justifiable reliance by a party or administration in good faith
on the overruled decision, the ability to effectuate the new
rule adopted in the overruling case without doing injustice, the
likelihood of implementing its retrospective operation without
substantially burdening the administration of justice, the prior
history of the rule in question, its purpose and effect and
whether the retroactive operation will accelerate or retard its
operation, etc., are all significant considerations which are to
be kept in mind before the doctrine of prospective overruling
may be resorted to. Obviously, if one or more of the factors
[2025] 4 S.C.R. 953

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

illustrated above are competing with each other i.e., one favours
retrospectivity and the other favours prospectivity, the competing
considerations must be sought to be balanced 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 Alassery Mohammed (supra), this Court held that since
Pamanani (supra) had held the field for a significant time and
several prosecutions had resulted in acquittals in the meantime,
the appeals would be disposed of by only laying down the correct
proposition of law. Neither were any acquittals disturbed nor were
any of the matters remanded to the Courts below. The decision
did not expressly apply the doctrine of prospective overruling.
Therefore, it could reasonably be stated that the decision was
retrospectively applicable to pending matters (if any) which had
not yet resulted in an acquittal and which was instituted when
Pamanani (supra) held the field or in other words, was instituted
before Rule 22-B clarified the position of law.
ix. One another decision on the doctrine of prospective overruling
which pertains to criminal law was rendered in Ramesh Kumar
Soni (supra). Herein, this Court overruled the decision of the
Full Bench of the High Court prospectively, by stating that any
954 [2025] 4 S.C.R.

Supreme Court Reports

change of forum at this stage would cause unnecessary and
avoidable hardship to the accused if they were transferred
again in light of the conclusion arrived at in Ramesh Kumar
Soni (supra).
123. In light of the elaborate discussion hereinabove, we do not find it
necessary, in the facts and circumstances of the matter at hand, to
exercise the powers available to us and declare the decision given
in Sanjeev V. Deshpande (supra) to be prospectively applicable.
We have decided so because there exists no overwhelming reason
for us to apply the doctrine of prospective overruling. On the other
hand, in order to meet the ends of justice and with a view to ensure
that public interest is safeguarded and to give effect to the salutary
object behind the enactment of the NDPS Act, the decision must
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.

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
[2025] 4 S.C.R. 955

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

import of the words “law in force at the time of the commission” is
especially important. It has been detailed by us, with sufficient clarity,
in the preceding paragraphs, that judges do not make law but only
find the right law. This is precisely the reason behind retrospectively
applying any overruling decision as a default rule. However, can the
overruling judgment and its declaration of law be considered to be
the “law in force at the time of the commission”? Such a question is
required to be considered by us more particularly as regards matters
which pertain to substantive law, like the present one. Herein, the
controversy is whether the dealing in of psychotropic substances
which are mentioned under the Schedule to the NDPS Act and not
under Schedule I of the NDPS Rules would constitute an offence or
not. While the decision in Rajesh Kumar Gupta (supra) answered
in the negative, the subsequent decision in Sanjeev V. Deshpande
(supra) answered affirmatively and overruled the decision in Rajesh
Kumar Gupta (supra). Following the general rule, the exposition of
law in Sanjeev V. Deshpande (supra) is required to be considered
as the right position of law from its inception. However, we have to
examine whether holding so would result in any implications on the
fundamental rights of the accused, in the specific facts and attendant
circumstances that accompany the present appeals.
125. Salmond, in his acclaimed work on jurisprudence, is of the opinion
that a judge does not make law and merely declares it. According to
him, when a particular decision is overruled, it is declared that the
supposed rule laid down in such an overruled decision was never
the right law. Since, it’s authoritative value is erased completely, any
intermediate transaction, despite being made on the strength of that
supposed rule, would be governed by the principles established in
the overruling decision.
126. A reflection of this proposition laid down by Salmond was evident
in the decision of the Indiana Supreme Court, way back in the year
1898, in Center School Township v. State reported in 150 Ind.
168., which discussed the effect of the overruling of a decision. It was
held that a decision of a court of last resort, is only an exposition of
what the court “construes the law to be”, therefore, while overruling
a former decision, the court does not declare the overruled decision
to be bad in law, but that it was “never the law”. The overruling
would be indicative of the fact that the court was simply mistaken in
regard to the law in its former decision and it would have the effect of
956 [2025] 4 S.C.R.

Supreme Court Reports

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, but that it
never was the law, and the court was therefore simply
mistaken in regard to the law in its former decision. The
first decision, upon the point on which it is overruled, is
wholly obliterated, and the law as therein construed or
declared must be considered as though it never existed,
and that the law always has been as expounded by the
last decision. Haskett v. Maxey, 134 Ind. 182, 33 N.E. 358;
Ram’s Legal Judgments, 47.
This rule, however, is subject to the well settled doctrine that
courts will not so apply a change made in the construction
of the law as it was held to be in the overruled case, as to
invade what is considered vested rights, or, in other words,
while as a general rule, the law as expounded by the last
decision operates both prospectively and retrospectively,
still, courts are required to and do confine it in its operation
so as not to impair vested rights, such as property rights
or those resting on contracts express or implied. Haskett v.
Maxey, supra; Stephenson v. Boody, 139 Ind. 60.

xxx xxx xxx
[2025] 4 S.C.R. 957

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

Appellant, therefore, having received the money through a
judicial misinterpretation of the law, cannot be successfully
heard to deny appellee’s right thereto which existed in the
first instance, under the proper construction of the statute
whereby the legislature had declared its will in respect to
the disposition of the surplus dog fund.”
(Emphasis supplied)

127. The aforementioned decision reiterates that any decision of a court
would only be an evidence or an exposition of what the court construes
the law to be and this is precisely why the overruling decision would
remove any authoritative value that the overruled decision might have
had, even during the intervening period. Center School Township
(supra) also clarified that the vested right, if any, which is sought to
be protected as an exception to the retrospective application of the
overruling decision, must be real. They must be rights of property or
those founded on contracts, express or implied. For example, say
a right has arisen on a contract or a transaction in the nature of a
contract which is authorised by a statute and the statute concerned, is
repealed. In such a scenario, a vested right would exist independently
of the repealed statute. It was also held that the vested right must be
something more than a mere expectation 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.
958 [2025] 4 S.C.R.

Supreme Court Reports

129. A constitutional Bench of this Court in Rao Shiv Bahadur Singh
and Another v. State of Vindhya Pradesh reported in (1953) 2
SCC 111 was concerned with the invocation of Article 20(1) with
respect to a pre-Constitution ex-post facto law and held that Article
20(1) prohibits all convictions or subjections to penalty, after the
Constitution, in respect of ex-post facto laws, irrespective of whether
the same was a post-Constitution or a pre-Constitution law. Herein,
the Vindhya Pradesh Ordinance 48 of 1949, though enacted on
11.09.1949, i.e., after the alleged offences in the case therein were
committed, was made retrospective and deemed to have been in
force from 09.08.1948. It was therefore, urged that the Ordinance
was a “law in force” during the time the offences were committed and
would not be hit by Article 20. However, this Court disagreed with
such a contention and said that to accept such an argument would
be to give a hyper-technical meaning to the words “law in force”. If it
were accepted then the very purpose of Article 20 would be defeated
since any ex-post facto law could be given retrospective effect by the
legislature to overcome the rigours of Article 20. It was this Court’s
opinion that “law in force” must be understood as being the law in
fact in existence and in operation at the time of commission of the
offence as distinct from the law “deemed” to have become operative
by virtue of the power of the legislature to pass retrospective laws.
The relevant observations are reproduced hereinbelow:
“15. The next and the only serious question that arises
in this case is with reference to the objections raised in
reliance on Article 20 of the Constitution. This question
arises from the fact that the charges as against the two
appellants, in terms, refer to the offences committed as
having been under the various sections of the Penal Code
as adapted in the United States of Vindhya Pradesh by
Ordinance 48 of 1949. This Ordinance was passed on 11-
9-1949, while the offences themselves are said to have
been committed in the months of February, March and
April 1949 i.e. months prior to the Ordinance. It is urged,
therefore, that the convictions in this case which were after
the Constitution came into force are in respect of an ex
post facto law creating offences after the commission of the
acts charged as such offences and hence unconstitutional.
This contention raises two important questions viz. (1) the
[2025] 4 S.C.R. 959

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

proper construction of Article 20 of the Constitution, 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 into force but the law factually
in operation at the time or what may be called the then
existing law. Otherwise, it is clear that the whole purpose
of Article 20 would be completely defeated in its application
even to ex post facto laws passed after the Constitution.
Every such ex post facto law can be made retrospective,
as it must be, if it is to regulate acts committed before the
actual passing of the Act, and it can well be urged that by
such retrospective operation it becomes the law in force
at the time of the commencement of the Act. It is obvious
that such a construction which nullifies Article 20 cannot
possibly be adopted.
23. It cannot therefore be doubted that the phrase “law
in force” as used in Article 20 must be understood in its
natural sense as being the law in fact in existence and in
operation at the time of the commission of the offence as
960 [2025] 4 S.C.R.

Supreme Court Reports

distinct from the law “deemed” to have become operative
by virtue of the power of legislature to pass retrospective
laws. It follows that if the appellants are able to substantiate
their contention that the acts charged as offences in this
case have become such only by virtue of Ordinance 48
of 1949 which has admittedly been passed subsequent
to the commission thereof, then they would be entitled to
the benefit of Article 20 of the Constitution and to have
their convictions set aside. [...]”
(Emphasis supplied)

130. On the other hand, the issue in question before this Court in Soni
Devrajbhai Babubhai v. State of Gujarat reported in (1991) 4
SCC 298 related to the insertion of Section 304-B to the IPC, 1860
w.e.f. 19.11.1986 which created a new substantive offence more
stringent than Section 498-A IPC. The incident in question in the case
occurred prior to 19.11.1986 and therefore, the accused were tried
under Section 498-A instead of Section 304-B since their trial under
the latter provision would be hit by Article 20(1). While affirming the
view taken by the High Court, it was elaborated that, it was Section
498-A which was in the statute book when the incident occurred.
The offence punishable under Section 304-B, known as dowry death,
was inserted into the statute books only after the offence had been
committed. Another indication that a new offence was “created” was
that Section 304-B IPC is punishable with a minimum sentence of
seven years which may extend to life imprisonment 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
[2025] 4 S.C.R. 961

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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
Chhaya that the respondents are being tried in the Court
of Magistrate of the First Class. The offence punishable
under Section 304-B, known as dowry death, was a new
offence created with effect from November 19, 1986
by insertion of the provision in the Penal Code, 1860
providing for a more stringent offence than Section 498-A.
Section 304-B is a substantive provision creating a new
offence and not merely a provision effecting a change in
procedure for trial of a pre-existing substantive offence.
Acceptance of the appellant’s contention would amount to
holding that the respondents can be tried and punished
for the offence of dowry death provided in Section 304-
B of the Penal Code, 1860 with the minimum sentence
of seven years’ imprisonment for an act done by them
prior to creation of the new offence of dowry death. In our
opinion, this would clearly deny to them the protection
afforded by clause (1) of Article 20 of the Constitution
which reads as under:
“20. Protection in respect of conviction for
offences.— (1) No person shall be convicted
of any offence except for violation of the 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.”
10. In our opinion, the protection given by Article 20(1)
is a complete answer to the appellant’s contention. The
contention of learned counsel for the appellant that
Section 304-B inserted in the Penal Code, 1860 does
not create a new offence and contains merely a rule of
962 [2025] 4 S.C.R.

Supreme Court Reports

evidence is untenable. The rule of evidence to prove the
offence of dowry death is contained in Section 113-B of
the Indian Evidence Act providing for presumption as
to dowry death which was a simultaneous amendment
made in the Indian Evidence Act for proving the offence
of dowry death. The fact that the Indian Evidence Act was
so amended simultaneously with the insertion of Section
304-B in the Penal Code, 1860 by the same Amendment
Act is another pointer in this direction. This contention is,
therefore, rejected.”
(Emphasis supplied)

131. Another Constitutional Bench of this Court in Central Bureau of
Investigation v. R.R. Kishore reported in (2023) 15 SCC 339 was
faced with the issue whether the declaration of Section 6-A of the
DSPE Act, 1946 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 Bench agreed with the position taken in
Rao Shiv Bahadur Singh (supra) that the term “law in force”
under Article 20 must be taken to be the law factually in force
or the existing law at the relevant time and not a law made
applicable to the past period by virtue of a deeming fiction by
the legislature.
[2025] 4 S.C.R. 963

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

ii. Secondly, Section 6 of the General Clauses Act, 1897
provides that when an enactment is repealed, unless a
different intention appears, the repeal shall not affect the
previous operation of the repealed enactment or; affect
any right, privilege, obligation or liability acquired, accrued
or incurred under the repealed enactment. Section 6 was
held to be inapplicable to the scenario at hand since it was
not a case where an enactment was repealed or revived
but the situation pertained to the declaration of a statutory
provision as unconstitutional. Therefore, it cannot be said
that any right or privilege was acquired on the basis of the
provision which came to be declared as unconstitutional and
that the concerned individuals or accused could press such
an unconstitutional provision in their favour. The relevant
observations are reproduced hereinbelow:
37. Clause (1) of Article 20 of the Constitution consists
of two parts. The first part prohibits any law that
prescribes judicial punishment for violation of law
with retrospective effect. Clause (1) of Article 20 of
the Constitution does not apply to civil liability, as
distinguished from punishment for a criminal offence.
Further, what is prohibited is conviction or sentence
for any offence under an ex post facto law, albeit the
trial itself is not prohibited. [...]
38. The right under first part of clause (1) of Article
20 of the Constitution is a very valuable right, which
must be safeguarded and protected by the courts
as it is a constitutional mandate. The Constitution
Bench of this Court in Rao Shiv Bahadur Singh v.
State of Vindhya Pradesh [Rao Shiv Bahadur Singh v.
State of Vindhya Pradesh, (1953) 2 SCC 111 : 1953
SCR 1188] , highlighted the principle underlying the
prohibition by relying upon judgment of Willes, J. in
Phillips v. Eyre [Phillips v. Eyre, (1870) LR 6 QB 1
at pp. 23 and 25] and of the United States Supreme
Court in Calder v. Bull [Calder v. Bull, 1 L Ed 648 at
p. 649 : 3 Dall 386 : 3 US 386 (1798)] , to hold that
it would be highly unjust, unfair and in violation of
human rights to punish a person under the ex post
964 [2025] 4 S.C.R.

Supreme Court Reports

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 fiction will fall foul, when they are with
the intent to defeat the salutary object and purpose
behind clause (1) of Article 20 of the Constitution.
[In the present case, we need not examine when
an offence is a continuous offence, an aspect and
matter of considerable debate.]

xxx xxx xxx
42. The learned counsel for the parties have also
briefly referred to Section 6 of the General Clauses
Act, 1897. It would be appropriate to reproduce the
said provision hereunder:
“6. Effect of repeal.— Where this Act, or
any Central Act or Regulation made after
the commencement of this Act, repeals any
enactment hitherto made or hereafter to
[2025] 4 S.C.R. 965

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

be made, then, unless a different intention
appears, the repeal shall not—
(a) revive anything not in force or existing at
the time at which the repeal takes effect; or
(b) affect the previous operation of any
enactment so repealed or anything duly
done or suffered thereunder; or
(c) affect any right, privilege, obligation or
liability acquired, accrued or incurred under
any enactment so repealed; or
(d) affect any penalty, forfeiture or
punishment incurred in respect of any
offence committed against any enactment
so repealed; or
(e) affect any investigation, legal proceeding
or remedy in respect of any such right,
privilege, obligation, liability, penalty,
forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding
or remedy may be instituted, continued or
enforced, and any such penalty, forfeiture
or punishment may be imposed as if the
repealing Act or Regulation had not been
passed.”
A plain reading of the above provision indicates that
the repeal of an enactment shall not affect previous
operation, unless a different intention appears. It may
be appropriately noted here that the present case
does not involve repeal or revival of any enactment
but is a case where a Constitution Bench of this
Court has declared a statutory provision as invalid
and unconstitutional being hit by Article 14 of the
Constitution. As such Section 6 of the 1897 Act will
have no application.”
(Emphasis supplied)
966 [2025] 4 S.C.R.

Supreme Court Reports

132. The background and context under which we are examining the
applicability of Article 20(1) to the facts of our case are quite different
and distinguishable. We are not concerned with a situation where
the legislature 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 us in the preceding parts
of this judgment, which pre-existed the decision in Rajesh Kumar
Gupta (supra) and which also support the conclusion reached by
Sanjeev V Deshpande (supra) and by us, serve as a testament to
the undoubted position of law contained in the NDPS Act and its
Rules, in this regard.
133. Furthermore, we are also not concerned with a scenario wherein the
language of Section 8 of the NDPS Act is visibly narrow and through
the act of judicial interpretation, an unreasonably wide or expansive
interpretation has been accorded to it by the decision in Sanjeev V
Deshpande (supra) and also by us. On the contrary, it is our opinion
that the construction to Section 8 of the NDPS Act was inordinately
restricted in Rajesh Kumar Gupta (supra) when the scope and ambit
of the provision was clear in itself. Hence, the decision in Sanjeev
V Deshpande (supra) taken along with the elaborate discussion
which we have engaged in on the position of law, has only served
to clarify the true meaning as exactly reflected in the statute, without
any undue narrowing or expansion. Therefore, there is no doubt in
[2025] 4 S.C.R. 967

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

our mind while clarifying that the decision in Sanjeev V Deshpande
(supra) overruling the decision in Rajesh Kumar Gupta (supra)
would have retrospective effect, that there would arise no adverse
implications as regards the Article 20(1) rights which the accused
persons are otherwise entitled to.
134. The Blackstonian theory also lends great support to our conclusion
since it underscores the principle that it is not the function of the
court to pronounce a “new rule” but to maintain and expound the
“old one”. Therefore, the overruling of a decision cannot be equated
to the creation of a new law. The correct principle of law is merely
clarified and applied retrospectively. Therefore, in the circumstances
of the instant case, it cannot be said that a new offence was “created”
subsequently. It is to be considered as always have existed. The
offence under Section 8 as expounded in Sanjeev V Deshpande
(supra) was not introduced out of thin air and it cannot be said that
its existence as construed in the aforesaid decision was undeniably
absent from the scheme of the provisions under the NDPS Act.
We have elaborated with sufficient detail, by even exhaustively
and conscientiously discussing the Articles of the Convention of
Psychotropic Substances, 1971 which 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 being overruled and
the default rule of retrospectivity in matters of overruling is applied,
it would not be permissible for anyone to contend that any right
968 [2025] 4 S.C.R.

Supreme Court Reports

accrued to them on the basis of the judgement which declared the
wrong proposition of law. Therefore, the retrospective overruling of
the decision in Rajesh Kumar Gupta (supra) cannot be faulted with
for being possibly hit by Article 20(1) of the Constitution. It would not
be open for an accused to contend that any right accrued to them
on the basis of the judgement in Rajesh Kumar Gupta (supra).
However, with a view to do complete justice to the issue at hand,
we declare that matters in which the trial has already concluded on
the basis of the incorrect exposition of law and have attained finality,
would not be disturbed. It would be tedious endeavour for all those
acquittals to be re-opened and re-tried again. Having said so, any
and all pending matters would be adjudged on the basis of the correct
interpretation of law as declared in Sanjeev V Deshpande (supra).
136. The decisions of this Court in Rao Shiv Bahadur Singh (supra),
Soni Devrajbhai Babubhai (supra) and R.R. Kishore (supra) would
not in any manner be an impediment to the above conclusion since –
First, in Rao Shiv Bahadur Singh (supra), it was opined that the
expression “law in force” must be understood as being the law in fact
in existence and in operation at the time of commission of the offence
as distinct from the law “deemed” to have become operative by virtue
of the power of the legislature to pass retrospective laws. The same
is inapplicable herein since; (a) we are not dealing with a situation
where the legislature has introduced a new offence which is sought
to be retrospectively enforced and (b) the overruling of a decision
and the declaration of the right meaning of law is not attributed to
the provision by the overruling court through a “deeming fiction”. The
overruling decision only mirrors what the lawmakers wanted the law
to be and what it always was. Therefore, it cannot be disputed that
the interpretation given in the overruling decision was infallibly the
“law in force” at all times. Secondly, in Soni Devrajbhai Babubhai
(supra), it was apparent that the offences were traceable to two
different provisions, the latter of which created a distinct offence
and entered into the statute books much later in time. Therefore, 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
[2025] 4 S.C.R. 969

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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 unsettled in
light of the overruling decision or the observations made by us. If it
were a reverse scenario i.e., if the decision in Rajesh Kumar Gupta
(supra) led to the conviction of several accused and then subsequently,
the effect of the ratio in Sanjeev V. Deshpande (supra) was such
that those accused were to be acquitted because an offence was
not made, we would have, without an iota of doubt leaned in favour
of those matters being reconsidered and the convictions also being
re-examined in light of the clarification given in the subsequent
decision. However, presently, the situation not being such, we do not
wish to subject any accused who has been acquitted, to trial again.
138. In Somaiya (supra), this Court had emphasized that it cannot be
said that the past actions would be validated when the doctrine of
prospective overruling is resorted to. Therefore, the idea is not to
declare all the actions that were taken contrary to law or in pursuance
of an unconstitutional provision as valid, but to save those transactions
on a balance of considerations. Similarly, if the accused before us
had been acquitted directly as a consequence of the decision in
Rajesh Kumar Gupta (supra), the same cannot be said to have
been made in accordance with law. Although, we have expressed our
intention to not disturb any acquittal made in the past, which have
attained finality, if the accused persons before us were acquitted by
the respective Trial Courts due to the interpretation given in Rajesh
Kumar Gupta (supra) and after an examination of materials placed
on record, we were satisfied that the accused before us were indeed
guilty of the offence with which they were charged, we could have
held them “technically guilty” of the offence under Section 8 of the
NDPS Act.
970 [2025] 4 S.C.R.

Supreme Court Reports

139. This concept of “technical guilt” found mention in the decision of
this Court in Food Inspector, Calicut Corporation v. Cherukattil
Gopalan and Another reported in (1971) 2 SCC 322. Here, the
issue was whether the respondent running a tea-stall could be
said to have “sold” the sugar to the Food Inspector under Section
2(xiii) of the Prevention of Food Adulteration Act, 1954 and hence
fall under the ambit of Sections 7 and 16(1)(a)(i) of the Act which
prohibits and punishes the manufacture, sale etc. of adulterated
articles of food. The counsel for the appellant had, during the course
of the arguments, 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 ordinarily enters into or is used in the composition
or preparation of human food. In this case the sale was
for analysis and the article was an article of food and in
view of the concurrent findings of both the courts that
it was adulterated, the respondents have contravened
Sections 16(1)(a)(i) of the Act. Hence it must be held that
the respondents are technically guilty of the offence with
which they were charged and they have been wrongly
acquitted by the High Court and the District Magistrate.
But in view of the fact that the appellant has argued the
[2025] 4 S.C.R. 971

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

appeal only as a test case and does not challenge the
acquittal of the respondents, we merely set aside the order
and judgment of the High Court. But we may make it clear
that apart from holding the respondents technically guilty,
we are not setting aside the order of acquittal passed in
their favour.”
(Emphasis supplied)

140. In Cherukattil Gopalan (supra), this Court did not set aside the
order of acquittal which was passed in favour of the accused but
at the same time, streamlined the position of law in that regard and
only set aside the order and judgment of the High Court. Along
similar lines, while we are refraining from directing that the orders
of acquittal (if any) passed due to the decision in Rajesh Kumar
Gupta (supra) be disturbed, in so far as the accused person before
us are concerned, it would have been appropriate to declare them
to be technically guilty of the offence under Section 8 of the NDPS
Act, had they been acquitted. However, what has been brought out
from the facts of the appeals before us, is that the accused persons
were not acquitted but discharged due to the decision in Rajesh
Kumar Gupta (supra). Therefore, there arises no occasion for us
to hold them technically guilty of the offences under the provisions
of the NDPS Act that they were charged with. At this juncture, the
obvious next step would be for the trial qua all the accused before
us to be commenced in accordance with law.
141. One another question of law which has sprung up in the facts of our
case is whether, after the charges are framed by the Trial Court, an
accused could be discharged or his charges could be deleted through
an application made under Section 216 of the CrPC.

iii. The scope of Section 216 of the CrPC
142. Section 216 of the CrPC reads as thus:
“216. Court may alter charge.—
(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.
972 [2025] 4 S.C.R.

Supreme Court Reports

(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 added charge is founded.”
(Emphasis supplied)

143. Under this provision, any Court is empowered to “alter” or “add”
to any charge framed against the accused, at any time before the
judgment is pronounced. Therefore, an outer time limit is set i.e.
the power conferred upon the Courts cannot be exercised after a
decision is pronounced in the matter. Although the provision does
not expressly provide for the stage of the trial after which the power
under Section 216 CrPC can be exercised, yet logic and rationale
obviously requires it to be exercised after a charge has been framed
by the Trial Court under Section 228 CrPC. For if no charge has
been framed, there arises no occasion to add or alter it. As a natural
corollary, if an accused has already been discharged under Section
227 CrPC, no application or action under Section 216 CrPC would
be maintainable.
144. The Court may alter or add to any charge either upon its own
motion or on an application by the parties concerned. Therefore,
such a power can be invoked by the Court suo moto as well. This
power under Section 216 CrPC is exclusive to the concerned Court
and no party can seek such an addition or alteration of charge as
[2025] 4 S.C.R. 973

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

a matter of right by filing an application. It would be the Trial Court
which must decide whether a proper charge has been framed or
not, at the appropriate stage of the trial. On a consideration of the
broad probabilities of the case, the total effect of the evidence and
documents adduced, the Trial Court must satisfy itself that the exercise
of power under Section 216 is necessary. The provision has been
enacted with the salutary object to ensure a fair and full trial to the
accused person(s) in each case.
145. This Court in Anant Prakash Sinha v. State of Haryana and
Another reported in (2016) 6 SCC 105 summarised the principles
as regards Section 216 CrPC. Herein, charges were framed against
the appellant-husband for the commission of offences punishable
under Sections 498-A and 323 IPC. During the pendency of the
matter, the informant wife had filed an application under Section
216 CrPC for framing an additional charge under Section 406 IPC
against both the husband and the mother-in-law on the ground that
there was an express complaint with regard to the misappropriation
of her entire Stridhan and other articles. Hence, it was contended
that the accused persons had committed 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.
974 [2025] 4 S.C.R.

Supreme Court Reports

iii. Thirdly, it is obligatory for the Court to ensure that no prejudice
is caused to the accused due to the addition or alteration of
charge. The accused must be informed and made aware of
the new charge as also the case against him so that he can
understand the defence that can be led on his behalf.
The relevant observations are reproduced hereinbelow:
“18. From the aforesaid, it is graphic that the court can
change or alter the charge if there is defect or something
is left out. The test is, it must be founded on the material
available on record. It can be on the basis of the complaint
or the FIR or accompanying documents or the material
brought on record during the course of trial. It can also be
done at any time before pronouncement of judgment. It is
not necessary to advert to each and every circumstance.
Suffice it to say, if the court has not framed a charge
despite the material on record, it has the jurisdiction to
add a charge. Similarly, it has the authority to alter the
charge. The principle that has to be kept in mind is that the
charge so framed by the Magistrate is in accord with the
materials produced before him or if subsequent evidence
comes on record. It is not to be understood that unless
evidence has been let in, charges already framed cannot
be altered, for that is not the purport of Section 216 CrPC.
19. In addition to what we have stated hereinabove, another
aspect also has to be kept in mind. It is obligatory on the
part of the court to see that no prejudice is caused to the
accused and he is allowed to have a fair trial. There are
in-built safeguards in Section 216 CrPC. It is the duty of
the trial court to bear in mind that no prejudice is caused to
the accused as that has the potentiality to affect a fair trial.
It has been held in Amar Singh v. State of Haryana [Amar
Singh v. State of Haryana, (1974) 3 SCC 81 : 1973 SCC
(Cri) 789] that the accused must always be made aware
of the case against him so as to enable him to understand
the defence that he can lead. An accused can be convicted
for an offence which is minor than the one he has been
charged with, unless the accused satisfies the court that
there has been a failure of justice by the non-framing of
[2025] 4 S.C.R. 975

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

a charge under a particular penal provision, and some
prejudice has been caused to the accused. [...]”
(Emphasis supplied)

146. In another decision of this Court in Nallapareddy 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 pronounced” in
sub-section (1) empowers the court to exercise its powers
of altering or adding charges even after the completion of
evidence, arguments and reserving of the judgment. The
alteration or addition of a charge may be done if in the
opinion of the court there was an omission in the framing
of charge or if upon prima facie examination of the material
brought on record, it leads the court to form a presumptive
opinion as to the existence of the factual ingredients
constituting the alleged offence. The test to be adopted
by the court while deciding upon an addition or alteration
of a charge is that the material brought on record needs
to have a direct link or nexus with the ingredients of the
alleged offence. Addition of a charge merely commences
the trial for the additional charges, whereupon, based on
the evidence, it is to be determined whether the accused
may be convicted for the additional charges. The court
976 [2025] 4 S.C.R.

Supreme Court Reports

must exercise its powers under Section 216 judiciously
and ensure that no prejudice is caused to the accused and
that he is allowed to have a fair trial. The only constraint
on the court’s power is the prejudice likely to be caused
to the accused by the addition or alteration of charges.
Sub-section (4) accordingly prescribes the approach to be
adopted by the courts where prejudice may be caused.”
(Emphasis supplied)

a. What is the meaning of the expression “alter” occurring
in Section 216 CrPC.
147. P. Ramanatha Aiyar in his Law Lexicon (6th Edn.) defined “alter”
as “to make a change in; to modify; to vary in some degree”.
“Alteration” is defined as a “change or substitution of one thing for
another”. Further, it has been elaborated that the term “alter” is to
be distinguished from its synonyms i.e., “change” and “amend”. To
change something may import the substitution of an entirely different
thing, while on the other hand, to alter would be to operate upon
a subject matter which continues to be the same objectively while
just modified in some particular. To illustrate it better in the context
of charging an accused with an offence, let’s say an accused is
charged with an offence initially under Section 323 IPC for simple
hurt. If the Trial Court is of the opinion that the case is in fact one of
grievous hurt, it may alter the charge of the accused for an offence
under Section 325 IPC. This would be an alteration since the broad
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
[2025] 4 S.C.R. 977

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

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 be varied and a new charge be
made. In the instant case, in Criminal Appeal No. 1319 of 2013, the
Trial Court in its order dated 30.11.2006 had held that the charge
framed by his predecessor for the offence under Sections 8, 22
and 29 of the NDPS Act had not been made out and that the case
of the accused had to be a case under the D&C Act which would
be triable by the Metropolitan Magistrate. In Criminal Appeal No.
272 of 2014, again, the Trial Court in its order dated 17.04.2010
similarly held that the offences under Sections 8 and 22 of the
NDPS Act were not made out and the matter would fall within the
rigours of the D&C Act.
150. However, if careful attention is paid to the orders of the Special
Judge in both the appeals, it cannot be said that they have exercised
their power under Section 216 to “alter” the charge of the accused
persons. We say so because, the charge which existed under
Sections 8, 22 and 29 of the NDPS Act in Criminal Appeal No. 1319
of 2013 and under Sections 8 and 22 of the NDPS Act in Criminal
Appeal No. 272 of 2014 respectively were not varied and a different
charge under a specific provision of the D&C Act was not made. In
such a circumstance, in effect, the Special Judge had discharged
or deleted the charge of the accused persons under the NDPS Act
in both the appeals.

b. Whether charges could be deleted or the accused be
discharged under Section 216 CrPC.
151. Section 216 CrPC provides the Court with the power to do two
things – One, alter a charge and two, add to a charge. Nowhere,
does the provision expressly or by necessary implication lead to an
inference that a charge could be deleted altogether. No doubt, the
978 [2025] 4 S.C.R.

Supreme Court Reports

Court is given an expansive and wide-ranging power. However, that
must not mean that the powers conferred are without any limits.
152. In a recent decision of this Court in K. Ravi v. State of Tamil Nadu
and Another reported in 2024 SCC OnLine SC 2283, this Court
had categorically observed that Section 216 does not give any right
to the accused to file a fresh application seeking discharge after
the charge has been framed by the Court. Herein, several accused
were charge-sheeted under Sections 147, 148, 323, 324, 307 and
302 of the IPC respectively. The respondent no. 2 - accused filed
an application for discharge under Section 227 CrPC which was
dismissed by the Sessions Court. After charges were framed, 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 application, the
Respondent No. 2 preferred the Revisional Application
before the High Court under Section 397 and 401 of Cr.
P.C. The High Court in its unusual impugned order,
discharged the Respondent No. 2 (A-2) from the charges
levelled against him, though his earlier application seeking
discharge was already dismissed by the Sessions Court
and confirmed by the High Court and that position had
attained finality. [...]

xxx xxx xxx
[2025] 4 S.C.R. 979

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

11. It is trite to say that Section 216 is an enabling
provision which enables the court to alter or add to any
charge at any time before judgment is pronounced, and
if any alternation or addition to a charge is made, the
court has to follow the procedure as contained therein.
Section 216 does not give any right to the accused to
file a fresh application seeking his discharge after the
charge is framed by the court, more particularly when
his application seeking discharge under Section 227 has
already been dismissed. Unfortunately, such applications
are being filed in the trial courts sometimes in ignorance of
law and sometimes deliberately to delay the proceedings.
Once such applications though untenable are filed, the trial
courts have no alternative but to decide them, and then
again such orders would be challenged before the higher
courts, and the whole criminal trial would get derailed.
Suffice it to say that such practice is highly deplorable,
and if followed, should be dealt with sternly by the courts.”
(Emphasis supplied)

153. A few High Courts have also rightly taken the view that an application
under Section 216 CrPC cannot lead to the deletion of charge
or the discharge of an accused. In a relatively recent decision of
the High Court of Allahabad in Dev Narain v. State of U.P. and
Another reported in 2023 SCC OnLine All 3216, it was stated that
a prayer for discharge cannot be sustained in an application under
Section 216 CrPC. Herein the sole-accused moved an application
for discharge and the same was rejected. The application under
Section 482 CrPC filed before the High Court was also dismissed
but with the observation that “it is open to the applicant to move an
application for alteration of charge under Section 216 CrPC before
the Trial Court”. Charges were framed against the accused under
Sections 498-A, 304-B, 323 IPC and Sections 3 and 4 of the Dowry
prohibition Act, 1961. After the evidence 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
980 [2025] 4 S.C.R.

Supreme Court Reports

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 dismissed by the trial court and the
criminal revision moved by the revisionist against rejection
of discharge application has been dismissed by this Court
vide order dated 9.8.2017 in Criminal Revision No. 2500 of
2017, wherein this Court observed that the instant criminal
revision is finally disposed of with a direction that in case,
the revisionist is aggrieved with regard to the framing of the
charge as on date, he may file an appropriate application at
the appropriate stage when the evidence is to be produced
with regard to the alteration of charge and in case, such an
application is filed, the same shall be heard and decided
in accordance with law after hearing all parties concerned.
10. The charge has been framed against the accused
by the court below under Sections 498-A, 304-B, 323
IPC and 3/4 of D.P. Act. The evidence of PW-1 Vibhuti
Bhushan Garg was recorded on 1.9.2017 to 29.5.2018
and thereafter the present application under Section 216
Cr. P.C. has been filed for alteration of charge. [...]
11. From perusal of prayer made in application under
Section 216 Cr. P.C., it appears in essence that this is a
prayer for discharge as the revisionist has stated that he
may be discharged from charged penal sections and the
charges levelled against him be quashed. The trial court in
exercise of its powers under Section 216 Cr. P.C. cannot
delete the charges framed by it for the said offences as the
[2025] 4 S.C.R. 981

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

criminal procedure code does not confers such powers on
the court. The trial court can only alter to a charge or to
add to a charge, which has already framed. The discharge
application moved by the revisionist has already been
dismissed and said order has attained finality.

xxx xxx xxx
14. This Court in the case of Vibhuti Narayan Chaubey
Alias v. State of U.P., 2003 Cri LJ 196 held that Section
216 of the code did not provide for deletion of a charge
and that the word “delete” had intentionally not being used
by the legislature.
I am in agreement with this conclusion. The petitioner is
seeking the deletion of a charge of conspiracy altogether
that is not permissible under Section 216 of the Code.
The charge once framed must lead to either acquittal or
conviction at the conclusion of trial. Section 216 of the Code
does not permit the deletion of the same. Subsequently,
Delhi High Court in the case of Verghese Stephen v.
Central Bureau 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
982 [2025] 4 S.C.R.

Supreme Court Reports

dated 30.11.2006 and 17.04.2010 have in effect deleted the charge
framed for the offence under the provisions of the NDPS Act and
then transferred the file to the Court of the Metropolitan Magistrate
for proceeding in accordance with the provisions of the D&C Act,
without arriving at a decision to acquit the accused as regards the
charges already framed under the provisions of the NDPS Act. The
same is impermissible under the scheme of our criminal procedure
code and both the Trial Courts could be said to have committed a
grave error while reaching the conclusion that as the offences were
not triable by them, the case should be transferred to the court of
the Metropolitan Magistrate respectively.

E. CONCLUSION
156. It cannot be said that the dealing in of “Buprenorphine Hydrochloride”
would not amount to an offence under Section 8 of the NDPS Act
owing to the fact that the said psychotropic substance only finds
mention under the Schedule to the NDPS Act and is not listed under
Schedule I of the NDPS Rules. There exists nothing to indicate that
Rules 53 and 64 of the NDPS Rules respectively, are the governing
rules in their respective Chapters, more so, when the language of
the other rules in Chapters VI and VII respectively, are clear about
their application to the substances mentioned under the Schedule
to the Act as well.
157. All the psychotropic substances mentioned under the Schedule
to the Act have potential grave and harmful consequences to the
individual and the society at large, when abused. Some psychotropic
substances mentioned under the Schedule to the NDPS Act are also
mentioned under the D&C Act and the rules framed thereunder. This
is only because those substances while capable of being abused for
their inherent properties could also be used in the field of medicine.
However, the mere mention of certain psychotropic substances
under the D&C regime would not take them away from the purview
of the NDPS Act, if they are also mentioned under the Schedule to
the NDPS Act.
158. There arises no occasion for us to declare the interpretation given
to Section 8 of the NDPS Act and the relevant NDPS Rules, by
the decision in Sanjeev V. Deshpande (supra), as prospectively
applicable. There exists no overwhelming reason for us to do so.
[2025] 4 S.C.R. 983

Directorate of Revenue Intelligence v. Raj Kumar Arora & Ors.

On the other hand, in order to meet the ends of justice and with a
view to ensure that public interest is safeguarded and to give effect
to the salutary object behind the enactment of the NDPS Act, the
decision must 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 the decision in Rajesh
Kumar Gupta (supra), the decision in Sanjeev V. Deshpande
(supra) has only clarified the law as it stood from its inception and
given true effect to the meaning assigned to the relevant provisions
of the NDPS Act and the Rules thereunder, by the lawmakers. The
same cannot be construed as creating a new offence. Additionally,
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. It cannot be reasonably
argued that the indiscriminate dealing in of substances which are
only mentioned under the Schedule to the NDPS Act and absent
under Schedule I of the NDPS Rules, was indubitably legal and
allowed by the legislation, prior to the decision in Sanjeev V.
Deshpande (supra). Therefore, there remains no doubt in our
minds that giving retrospective effect to the decision in Sanjeev
V. Deshpande (supra) would be necessary considering the facts
984 [2025] 4 S.C.R.

Supreme Court Reports

and circumstances in the background of which we are called upon
to adjudicate these matters
160. However, having held that the decision in Sanjeev V. Deshpande
(supra) must be given retrospective effect, we find it necessary
to clarify that acquittals which have already been recorded as a
consequence of the decision in Rajesh Kumar Gupta (supra) and
have attained finality, would not be unsettled in light of the overruling
decision in Sanjeev V. Deshpande (supra) or the observations
made by us.
161. We are, therefore, of the view that both the Trial Court and the
High Court committed an error in holding that the offence under
the provisions of the NDPS Act is not made out. The Trial Courts
in both the appeals could also not have discharged/deleted the
charge under the NDPS Act framed against the accused persons
while disposing of an application under Section 216 CrPC. This is
something not permissible within our criminal procedure and the High
Court unfortunately failed to take notice of this aspect.
162. In view of the law expounded by us, since the accused concerned
in both the appeals were not acquitted in their respective trials, we
direct that they be tried by the concerned Special Judge, NDPS, in
accordance with law. The Trial Courts are directed to proceed with
the trial and conclude it expeditiously.
163. With the aforesaid directions, we allow both the appeals filed by
the appellants and set aside the impugned orders passed by the
High Court.
164. We direct the Registry to send one copy each of this judgment to
all the High Courts.
165. Pending application(s), if any, shall stand disposed of.

Result of the case: Appeals allowed.

†
Headnotes prepared by: Nidhi Jain