STATE OF PUNJAB versus RAKESH KUMAR on 3 December 2018

[2018] 14 S.C.R. 415

STATE OF PUNJAB

v.

RAKESH KUMAR

(Criminal Appeal No. 1512 of 2018)

DECEMBER 03, 2018

[N. V. RAMANA, MOHAN M. SHANTANAGOUDAR,

M. R. SHAH, JJ.]

Code of Criminal Procedure, 1973: s.389 – Suspension ofsentence – In the instant case, the respondents were apprehendedwith “manufactured drugs” and convicted by trial court under ss.21and 22 of the NDPS Act – High Court allowed the applications forsuspension of sentence filed by accused-respondents holding that,since the instant matters related to “manufactured drugs”, therespondents should have been tried for the violation of provisionsof Drugs and Cosmetics Act, 1940 and not under the NDPS Act –State filed instant appeals – Held: While the Drugs and CosmeticsAct deals with drugs which are intended to be used for therapeuticor medicinal usage, the NDPS Act intends to curb and penalize theusage of drugs which are used for intoxication or for getting astimulant effect – Thus, NDPS Act, should not be read in exclusionto Drugs and Cosmetics Act – Additionally, it is the prerogative ofthe State to prosecute the offender in accordance with law – In theinstant case, since the action of the accused-Respondents amountedto a prima-facie violation of s.8 of the NDPS Act, they were chargedunder s.22 of the NDPS Act – The decision rendered by High Courtthat the accused-respondents must be tried under the Drugs andCosmetics Act, 1940 instead of the NDPS Act, as they were found inpossession of the “manufactured drugs”, does not hold good inlaw – Further, the accused-respondents had approached the HighCourt seeking suspension of sentence – However, in granting therelief, the High Court erroneously made observations on the meritsof the case while the appeals were still pending before it – In viewof the facts and circumstances of the instant case and gravity ofoffence alleged against accused-respondents, the order of HighCourt directing suspension of sentence and grant of bail was clearlyunsustainable in law and is set aside – Drugs and CosmeticsAct,1940 – Narcotic Drugs and Psychotropic Substances Act, 1985– ss.21 and 22.

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ADrugs and Cosmetics Act, 1940: Legislative intent ofenactment – Discussed.

Narcotic Drugs and Psychotropic Substances Act, 1985:Legislative intent of enactment – Discussed.

Allowing the appeals, the CourtB

HELD: 1.1 The Drugs and Cosmetics Act, 1940 wasenacted to specifically prevent sub-standard drugs and to maintainhigh standards of medical treatment. The Drugs and CosmeticsAct,1940 was mainly intended to curtail the menace of adulterationof drugs and also of production, manufacture, distribution andCsale of spurious and sub-standard drugs. On the other hand, theN.D.P.S Act is a special law enacted by the Parliament with anobject to control and regulate the operations relating to narcoticdrugs and psychotropic substances. While the Drugs andCosmetics Act deals with drugs which are intended to be usedDfor therapeutic or medicinal usage, on the other hand theN.D.P.S Act intends to curb and penalize the usage of drugs whichare used for intoxication or for getting a stimulant effect.[Para 8][422-G-H; 423-A]

Chimanlal Jagjivandas Sheth v. State of Maharashtra AIRE1963 SC 665 : [1963] Suppl. SCR 344 – relied onInderjeet Singh v. State of Punjab 2014 (3) RCR (Crl) 953 –referred to

1.2 Section 8 of the 1985 Act, is the prohibitory clausewhose violation would lead to penal consequence. Further, SectionF21 provides for punishment for contraventions in relation tomanufactured drugs and preparations and Section 22 providesfor punishment for contraventions in relation to psychotropicsubstances. Both the above provisions provide for the impositionof rigorous imprisonment for a term which shall not be less thanten years but which may extend to twenty years, and the impositionGof a fine which shall not be less than one lakh rupees but whichmay be extended to two lakh rupees, if the recovered substanceamounts to commercial quantity. However, the provisoappended thereto empowers the Court, with a discretionarypower to impose a fine exceeding two lakh rupees. In the instantH

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case, the accused-respondents were found in bulk possessionof manufactured drugs without any valid authorization.[Paras 9, 10, 11][423-B, G-H; 924-B-C]

Union of India v. Sanjeev V. Deshpande (2014) 13 SCC1 : [2014] 11 SCR 981 – relied on B

2. The N.D.P.S Act, should not be read in exclusion to Drugsand Cosmetics Act, 1940. Additionally, it is the prerogative ofthe State to prosecute the offender in accordance with law. In theinstant case, since the action of the accused-Respondentsamounted to a prima-facie violation of Section 8 of the N.D.P.SAct, they were charged under Section 22 of the N.D.P.S Act. Thedecision rendered by the High Court holding that the accused-respondents must be tried under the Drugs and Cosmetics Act,1940 instead of the N.D.P.S Act, as they were found in possessionof the “manufactured drugs”, does not hold good in law. Further,the accused-respondents had approached the High Court seekingsuspension of sentence. However, in granting the said relief,the High Court erroneously made observations on the merits ofthe case while the appeals were still pending before it.[Paras 15, 16][425-F-H]

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Case Law Reference

E2014 (3) RCR (Crl) 953referred toPara 5[2014] 11 SCR 981relied onPara 5[1963] Suppl. SCR 344 relied onPara 8

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1512 of 2018.

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From the Judgment and Order dated 29.01.2018 of the High Courtof Punjab and Haryana at Chandigarh in CRM– 32387 of 2015 in CRA-S-840-SB of 2015.

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Criminal Appeal Nos. 1514, 1515, 1517, 1516, 1513, 1518, 1521,1530, 1520, 1526, 1525, 1519, 1528, 1523, 1527, 1524, 1529, 1522, 1533,1532, 1536, 1531, 1534 and 1535 of 2018.

Ms. Jaspreet Gogia, Ms.Mandakini Singh, Advs. for the Appellant.

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AAman Preet Singh Rahi, A.Venayagam Balan, Nitin KumarThakur, Ms. S. Janani, Ms. Shruti Bist, Varinder Kumar Sharma,N. P. Joshi, Sandeep Sharma, A. Deb Kumar, A. Lakshminarayanan,Ms. Nidhi, Manik Garg, Rameshwar Prasad Goyal, Chirag Girdhar,Dinesh Verma, S. L. Aneja, Ajay Singh, Sukhdev Singh, Jinendra Jain,Pranay Jain, Vibhuti Sushant Gupta, Ram Naresh Yadav, A. Tewari,BMs. Eliza Bar, Shree Pal Singh, Subhasish Bhowmick, Vineet Bhagat,K. G. Bhagat Vikram Vishal Minhas Advs. for the Respondent.

The Judgment of the Court was delivered by

N. V. RAMANA, J. 1. Leave granted.

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2. The present appeals are filed by the State having been aggrievedby the common judgment and order dated 29[th ]January, 2018 passed bythe High Court of Punjab and Haryana, allowing the applications forsuspension of sentence, preferred by the accused-respondents hereinunder Section 389 Cr.P.C. and directing to release them on bail, whileDthe Appeals are pending in the High Court.

3. In order to appreciate the merits of theseappeals, brief factswhich have emerged from the case of the prosecution need to be notedat the outset. In all these appeals, the accused-respondents wereapprehended with“manufactured drugs” and convicted by the Trial Courtfor offences committed under Section 21 or Section 22 of the NarcoticDrugs and Psychotropic Substances Act, 1985 (hereinafter referred toas “N.D.P.SAct”). The alleged offences and conviction recorded bythe Trial Court against the respondents are listed below:

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STATE OF PUNJAB v. RAKESH KUMAR

[N. V. RAMANA, J.]

4. Aggrieved by the Judgment and conviction by the respective 4.Trial Courts, the accused-respondents approached the High Court throughvarious appeals. The accused-respondents, during the pendency of theappeals, preferred an application seeking suspension of sentence. Sincea common question of law was involved in the above appeals, the HighCourt heard the matters together and passed a common order dated29.01.2018, allowing the applications for suspension of sentence preferredby the accused-respondents. The High Court observed that manufactureddrugs, be it containing narcotic drugs or psychotropic substances, ifmanufactured by a manufacturer, must be tried, if violation is there, underthe Drugs and Cosmetics Act and not under the NDPS Act, except ABC

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Athose in loose form by way of powder, liquid etc. Dissatisfied by theabove order dated 29.01.2018, the State has preferred the present appeals.

5. The counsel on behalf of the appellant-State, while criticizingthe impugned order passed by the High Court, drew our attention to therelevant provisions of the N.D.P.S Act and Drugs and Cosmetics Act,B1940, and submitted that, the N.D.P.S Act, itself does not bar theapplication of the Drugs and Cosmetics Act, 1940. Further, the counselalso argued that, the impugned judgment is in gross violation of the decisionrendered in Inderjeet Singh v. State of Punjab 2014 (3) RCR (Criminal)953, by the Division Bench of the Punjab and Haryana High Court. Thecounsel also relied upon the decision rendered by this Court in Union ofCIndia v. Sanjeev V. Deshpande (2014) 13 SCC 1, wherein it was clearlyheld that dealing in narcotic drugs and psychotropic substances ispermissible only if it is for medical or scientific purposes. But even theusage for medical and scientific purposes is not restriction free, as it issubject to rules under the N.D.P.S Act.

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6. On the contrary, the counsel on behalf of the accused-respondents has supported the reasoning of the High Court while statingthat it is very farfetched to presume that, any person who is apprehendedwith bulk quantity of manufactured drug, without having a license forthe same, has committed an offence which is liable to be prosecutedEunder the N.D.P.S Act. The counsel further submitted that, the HighCourt was correct to conclude that, it can be considered as a violation ofthe provisions of the Drugs and Cosmetics Act, 1940. Therefore, therewas no error in granting the relief of suspension of sentence, consideringthat the appeals are not going to be adjudicated in the near future.

F7. Heard the learned counsel for both the parties.

F7. Heard the learned counsel for both the parties.

8. At the outset it is essential to note the objectives of the twolegislations before us, i.e., the Drugs and Cosmetics Act, 1940 and theN.D.P.S Act. The Drugs and Cosmetics Act, 1940 was enacted tospecifically prevent sub-standard drugs and to maintain high standardsGof medical treatment. (See Chimanlal Jagjivandas Sheth v. State ofMaharashtra AIR 1963 SC 665) The Drugs and Cosmetics Act,1940was mainly intended to curtail the menace of adulteration of drugs andalso of production, manufacture, distribution and sale of spurious andsub-standard drugs. On the other hand, the N.D.P.S Act is a special lawenacted by the Parliament with an object to control and regulate theHoperations relating to narcotic drugs and psychotropic substances. After analyzing the objectives of both the Acts, we can safely conclude thatwhile the Drugs and Cosmetics Act deals with drugs which are intendedto be used for therapeutic or medicinal usage, on the other hand theN.D.P.S Act intends to curb and penalize the usage of drugs which areusedfor intoxication or for getting a stimulant effect.

9. At this juncture, it is also pertinent to note the relevant provisionsunder the N.D.P.S Act. Section 8 of the 1985 Act, is the prohibitoryclause whose violation would lead to penal consequence:

Section 8. Prohibition of certain operations. -No person shall- (a) cultivate any coca plant or gather any portion of coca plant; or (b) cultivate the opium poppy or any cannabis plant; or

(c) produce, manufacture, possess, sell, purchase, transport,warehouse, use, consume, import inter-State, export inter-State,import into India, export from India or transship any narcotic drugor psychotropic substance, except for medical or scientific purposes and in the manner andto the extent provided by the provisions of this Act or the rules ororders made thereunder and in a case where any such provision,imposes any requirement by way of licence, permit or authorizationalso in accordance with the terms and conditions of such licence,permit or authorization:

Provided that, and subject to the other provisions of this Act andthe rules made there under, the prohibition against the cultivationof 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 ganjafor any purpose other than medical and scientific purpose shalltake effect only from the date which the Central Governmentmay, by notification in the Official Gazette, specify in this behalf.

10. Further, Section 21 provides for punishment for contraventionsin relation to manufactured drugs and preparations and Section 22provides for punishment for contraventions in relation to psychotropicsubstances. Both the above provisions provide for the imposition ofrigorous imprisonment for a term which shall not be less than ten yearsbut which may extend to twenty years, and the imposition of a finewhich shall not be less than one lakh rupees but which may be extended A

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Ato two lakh rupees, if the recovered substance amounts to commercialquantity. However, the proviso appended thereto empowers the Court,with a discretionary power to impose a fine exceeding two lakh rupeesfor reasons to be recorded in the judgment.

11. In the present case, the accused-respondents were found inBbulk possession of manufactured drugs without any valid authorization.The counsel on behalf of the appellant-State has extensively stressedthat the actions of the accused-Respondents amounts to clear violationof Section 8 of the N.D.P.S Act as it clearly prohibits possession ofnarcotic substances except for medicinal or scientific purposes. Infurtherance of the same, the counsel on behalf of the appellant-StateChas put emphasis on the judgment rendered by this court in the case ofUnion of India vs. Sanjeev V. Deshpande (supra), wherein it washeld that:

“25. In other words, DEALING IN narcotic drugs andpsychotropic substances is permissible only when such DEALINGDis for medical purposes or scientific purposes. Further, the merefact that the DEALING IN narcotic drugs and psychotropicsubstances is for a medical or scientific purpose does notby itself lift the embargo created Under Section 8(c). Such adealing must be in the manner and extent provided by the provisionsEof the Act, Rules or Orders made thereunder. Sections 9 and 10enable the Central and the State Governments respectively tomake rules permitting and regulating various aspects (contemplatedunder Section 8(c), of DEALING IN narcotic drugs andpsychotropic substances.

F26.The Act does not contemplate framing of rules for prohibitingthe various activities of DEALING IN narcotic drugs andpsychotropic substances. Such prohibition is already contained inSection 8(c). It only contemplates of the framing of Rulesfor permitting and regulating any activity of DEALING INnarcotic drugs or psychotropic substances…”G

(emphasis supplied)

12. In the present appeals before us, the trial courts after analyzingthe evidence placed before them, held the accused Respondents guiltybeyond reasonable doubt and convicted them for offences committedunder Section 21 and Section 22 of the N.D.P.S Act.H

13. The counsels for the accused-respondents have stronglysupported the judgment of the High Court wherein it was held that, sincethe present matters deal with “manufactured drugs” the presentrespondents should be tried for the violation of provisions of Drugs andCosmetics Act, 1940.

14. However, we are unable to agree on the conclusion reachedby the High Court for reasons stated further. First, we note that Section80 of the N.D.P.S Act, clearly lays down that application of the Drugsand Cosmetics Act is not barred, and provisions of N.D.P.S. Act can beapplicable in addition to that of the provisions of the Drugs and CosmeticsAct. The statute further clarifies that the provisions of the N.D.P.S Actare not in derogation of the Drugs and Cosmetics Act, 1940. This Courtin the case of Union of India vs. Sanjeev V. Deshpande (supra), hasheld that, “35. …essentially the Drugs & Cosmetics Act, 1940 deals withvarious operations of manufacture, sale, purchase etc. of drugsgenerally whereas Narcotic Drugs and PsychotropicSubstances Act, 1985 deals with a more specific class ofdrugs and, therefore, a special law on the subject. Furtherthe provisions of the Act operate in addition to the provisions of1940 Act.”

(emphasis supplied)

15. The aforesaid decision further clarifies that, the N.D.P.S Act,should not be read in exclusion to Drugs and Cosmetics Act, 1940.Additionally, it is the prerogative of the State to prosecute the offenderin accordance with law. In the present case, since the action of theaccused-Respondents amounted to a prima-facie violation of Section 8of the N.D.P.S Act, they were charged under Section 22 of the N.D.P.SAct.

16. In light of above observations, we find that decision renderedby the High Court holding that the accused-respondents must be triedunder the Drugs and Cosmetics Act, 1940 instead of the N.D.P.S Act,as they were found in possession of the “manufactured drugs”, does nothold good in law. Further, in the present case, the accused-respondentshad approached the High Court seeking suspension of sentence. However,in granting the aforesaid relief, the High Court erroneously madeobservations on the merits of the case while the appeals were still pendingbefore it.

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17. Considering the facts and circumstances of the present caseand the gravity of offence alleged against the accused-respondents, theorder of the High Court directing suspension of sentence and grant ofbail is clearly unsustainable in law and the same is liable to be set aside.

18. Accordingly the impugned order passed by the High Court isBhereby set aside and the concerned authorities are directed to take theaccused-respondents herein into custody forthwith.

19. Lastly, the counsels for respondents in Appeals arising out ofSLP (Crl) No.4816/2018 and SLP (Crl) No.4817/2018 have specificallypleaded that the respondents have already undergone a considerableCperiod under incarceration. In light of the same, we request the HighCourt to expedite the hearings and dispose of the appeals accordingly. Itis needless to observe that the observations made during the course ofthis order are only for deciding these appeals.

20. The appeals stand allowed in aforesaid terms. As a sequelDpending applications, if any shall also stand disposed of.

Devika Gujral

Appeals allowed.

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