Holding

Possession of a psychotropic substance for personal medical use up to one hundred dosage units is lawful under the proviso to Rule 66, rendering the conviction under Section 20(b)(i) unsustainable.

Summary

The appellant was found in possession of six ampoules of buprenorphine, a psychotropic substance, and was convicted under Section 20(b)(i) read with Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He claimed the drug was for personal medical use as prescribed by his doctor. The trial court ignored the proviso to sub‑rule (2) of Rule 66, which permits an individual to possess up to one hundred dosage units of a psychotropic substance for personal medical use. The Supreme Court examined whether the substance fell within the definition of a "manufactured drug" and concluded that the prosecution had not proved this, but more importantly that the possession was lawful under the Rule 66 proviso. Consequently, the conviction and sentence were set aside, the appellant was acquitted and ordered to be released, with a note that he may seek compensation under the law.

Issues considered

Whether possession of six ampoules of buprenorphine, a psychotropic substance, constitutes an offence under Section 20(b)(i) read with Section 8 of the NDPS Act when the quantity is within the limit allowed for personal medical use under Rule 66.
Whether the substance "Buprenorphine tidigesic" qualifies as a "manufactured drug" under Section 2(xi) of the NDPS Act and whether the prosecution proved it.
Whether the trial court erred by not considering the proviso to sub‑rule (2) of Rule 66 of the Rules framed under Section 9 of the NDPS Act.

Legislation cited

Narcotic Drugs and Psychotropic Substances Act, 1985s. 20(b)(i), s. 21, s. 27, s. 2(xi), s. 8, s. 9

Subjects

Narcotic Drugs and Psychotropic Substances Actpossessionpsychotropic substancepersonal medical useRule 66Buprenorphineacquittalunlawful detentionArticle 21Article 22

Judgment

HUSSAIN A
v.
STATE OF KERALA

OCTOBER 27, 1999

[K.T. THOMAS AND D.P. MOHAPATRA, JJ.] B

Narcotic Drugs and Psychotropic Substances Act, 1985:

Sections 2(xi), 8,9, 20(b)(i), 21 and 27-Appellant found in possession
of 6 ampoules of "Buprenorphine tidigesic"a psychotropic substance-Trial C
court convicted him for an offence under Section 20(b)(i) of the Act-
However, the proviso to sub-rule (2) of Rule 66 falling under Chapter VII of
the Rules framed under Section 9, a person was permitted to keep in his
possession for his personal medical use the psychotropic substance upto one
hundred dosage at a time-This point was not put forward before the trial D
court-Held, conviction and sentence imposed on appellant were without the
sanction of law-Appellant was unlawfally deprived of his personal liberty
for a long period of 5 years on account of over looking the facts and legal
position-Liberty granted to the appellant to seek appropriate remedy for
compensation-Constitution of India Articles 21 and 22.
E
Appellant was found in possession of 6 ampoules of "Buprenorphine
tidigesic", a psychotropic substance, each containing 2.1-ml. The appellant
during the trial did not dispute that he did possess this drug but took the view
that he had been using the drug under medical advice. Appellant examined
DW 1, his doctor, to say that he advised him to take the aforesaid substance
as a medical formulation. Trial court after completing prosecution and defence F
evidence had proceeded to examine the District Medical Officer as Court
Witness No. 1 in order to ascertain whether the quantity of substance
recovered from the appellant would fall within the limit of "small quantity"
envisaged in Section 27 of the Narcotic Drugs and Psychotropic Substances
Act, 1985. Having found that the quantity exceeded the limit of "small G
quantity'', convicted the appellant under Section 20(b)(i) read with Section 8
of the Act and sentenced him to undergo rigorous imprisonment for 10 years
and a fine of Rs. 1,00,000. However, trial court did not notice proviso to sub-
rule (2) of Rule 66 falling under Chapter VII of the Rules framed under
Section 9 of the Act wherein it was evident that a person was permitted to
H
189
190 SUPREME COURT REPORTS (1999) SUPP. 4 S.C.R.

A keep in his possession for his personal medical use the psychotropic substance
upto one hundred dosage at a time, wherein he was found to possess only 6
ampoules, which was much less than what was authorised under the Act.
Hence this appeal.

Allowing the appeal, the Court
B
HELD: 1. If "Buprenorphine tidigesic" was 'psychotropic substance'
possession of the same would amount to an offence only if it was in
contravention of Section 8 of the Narcotic Drugs and Psychotropic Substances
Act, 1985. That Section shows that no person shall possess any Psychotropic
C 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. [192-H; 193-B]

2.1. Section 9 of the Act empowers the Central Government to permit,
control and regulate the cultivation, production, possession etc., of psycho-
D tropic substances. Rules have been formulated by the Central Government
under that power. The proviso to sub-rule (2) of Rule 66 falling under Chapter
VII of the Rules is very evident that a person is permitted to keep in his
possession for his personal medical use the psychotropic substance upto one
hundred dosage at a time. It is not disposed to think that 6 ampoules would
cross the above limit and there is no attempt made either through DW-1
E (Doctor) or through Court Witness No.1 (District Medical Officer) that 100
dosage would be below the 6 ampoules recovered from him.
[193-C; 194-A, BJ

2.2. It is unfortunate that the aforesaid points have not been put forward
F before the trial court or t.he High Court. Thus the conviction and sentence
imposed on the appellant were without the sanction of law. 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. The
appellant is acquitted. As regards compensation the appellant is free to resort
G to his remedies under law. (194-C, DJ

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
780 of 1998.

From the Judgment and Order dated 25.9.97 of the Kerala High Court
H in Crl. A.No. 137of1995.
HUSSAIN v. ST ATE OF KERALA [THOMAS, J. J 191

Bimal Roy Jad, (A.C.) for the Appellant. A
Altaf Ahmad, Additional Solicitor General, K.M.K. Nair and Vipin Nair
for the Respondent.

The Ju~gment of the Court was delivered by

THOMAS, J. This seems to be a very unfortunate case in which the B
appellant by his fatality had languished in jail already for a long period of 5
years, when as a matter of law he should have been moving about as a free
citizen. Appellant in this case was charged by the Sessions Court with an
offence under Section 20(b)(i) read with Section 8 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short 'the Act'). He was sentenced C
to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.
_ 1,00,000. He filed an appeal before the High Court and a learned single Judge
who heard the appeal confirmed the conviction and sentence and dismissed
his appeal. He filed this appeal by special leave from jail.

The misfortune hovering around him continued to persist as the counsel D
appointed as amicus curiae to arnue for him did not tum up and we had to
remove him as A.C. We appointed another counsel (Mr. Bimal Roy Jad) as
amicus curiae. On 11.8.1999 we heard him and the learned counsel for the
State in detail and reserved the Judgment. Thereafter we felt that the appeal
should be re-heard as certain new features have emerged while contemplating
the factual position in this case. We, therefore, re-posted the matter. Today E
we are assisted by Shri Altaf Ahmad, learned Additiona!Solicitor General who
argued for the State of Kerala, though Mr. Bimal Roy Jad has not turned up
to argue for the appellant, nor did he made any representation.

The factual matrix as revealed in the judgment of the trial court and.
the High Court is this: On 25.6.1994 appellant was found in possession of F
6 ampoules of "Buprenorphine tidigesic" each containing 2 m.l. He was also
found in possession of 2 syringes each of 5 m.l. capacity. It is pertinent to
point out that appellant, unusually, did not dispute that the aforesaid substance
had been recovered from him. On the contrary he said that he was regularly
using it under medical advice. He examined a Doctor as D.W.1 to say that G
a prescription was administered by him to the appellant for using the aforesaid
substance as a medical formulation. The trial court after completing prosecution
evidence and the defence evidence has proceeded to examine the District
Medical Officer as Court Witness No. 1 in order to ascertain whether the
quantity of substance recovered from the appellant would fall within the limit
of 'small quantity' envisaged in Section 27 of the Act. Having found that the H
192 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A quantity recovered from the appellant has exceeded the limit of 'small quantity'
the trial court proceeded to consider whether the offence charged against him
was made out.

· Section 20 deals with contravention in relation to cannabis plant and
cannabis. As the article recovered from the appellant cannot fall within the
B ambit of either cannabis plant or cannabis the court had slipped down to
Section 21 which relates to contravention of the law in respect of"manufactured
drugs and preparations". As the District Medical Officer opined that
"Buprenorphine tidigesic" is a manufactured drug the trial court proceeded
on that premise and found him guilty under Section 2 I of the Act and
C convicted him and sentenced him as aforesaid.
"Manufactured drug" is defined in Section 2 (xi) of the Act, which reads
thus:
2.(xi) "manufactured drug" means:

D (a) all coca derivatives, medicinal cannabis, opium derivatives and
poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central
Government may, having regard to available infonnation as to its
nature or to a decision, if any, under any International
E Convention, by notification in the Official Gazette, declare to be
a manufactured drug, but does not include any narcotic substance
or preparation which the Central Government may, having regard
to the available infonnation as to its nature or to a decision, if
any, under any International Convention, by notification in the
Official Gazette, declare not to be a manufacturing drug.
F
No attempt has been made to show that "Buprenorphine tidigesic"
would fall within the !st limb of the definition: As no notification published
by the Central Government in the Official Gazette has been brought to the
notice of the Court there is no question of considering whether said article
G would fall within the 2nd limb of the definition. So, the prosecution has totally
failed to prove that the substance was a manufactured drug falling within the
aforesaid definition.

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 No.
H 92 of the Schedule to the Act (which is a list of psychotropic substances)
•
HUSSAIN v. STA TE OF KERALA [THOMAS, J.) 193
that "Buprenorphine" is a psychotropic substance. We may point out that the A
aforesaid Item No. 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.

If it was 'psychotropic substance' possession of the same would amount B
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.

Section 9 of the Act empowers the Central Government to permit, C
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:-
D

( I) No person shall possess any psychotropic substance for any of
the purpose covered by the 1945 Rules, unless he is lawfully authorised
to possess such substance for any of the said purposes under these
Rules.
E
(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 F
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;
G
Provided that where such psychotropic substance is in i)ossessicin of
any individual for his personal medical use the quantity thereof shall
not exceed one hundred dosage units at a time.
(3 ). The research institution, hospital and dispensary referred to in
sub-rule (2) shall maintain proper accounts and records in relation to H
194 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A the purchase and consumption of the psychotropic substance in their
possession."

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 upto one hundred dosage at a time. ..
B
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 No. 1 (D.M.O.) that 100 dosage would be below the 6 ampoules
recovered from him.

c It is unfortunate that the aforesaid points have not been putforward
before the trial court or the High Court. We feel that the conviction and
sentence imposed on this appellant were without the sanction oflaw. Appellant
is unlawfully deprived of his personal liberty for such a long period of 5 years
on account of over looking the aforesaid facts and the legal position.

D 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.
E Appeal allowed.
R.K.S.