IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1512  OF 2018

(ARISING OUT OF SLP (CRL) NO. 4762 OF 2018)

STATE OF PUNJAB …APPELLANT

VERSUS

RAKESH KUMAR         …RESPONDENT

WITH

Criminal Appeal No. 1514  of 2018 (Arising out of SLP (Crl) No.4816 of 2018)

Criminal Appeal No. 1515 of 2018 (Arising out of SLP (Crl) No.4817 of 2018)

Criminal Appeal No. 1517 of 2018 (Arising out of SLP(Crl) No.4869 of 2018)

Criminal Appeal No. 1516 of 2018 (Arising out of SLP (Crl) No.4818 of 2018)

Criminal Appeal No. 1513  of 2018 (Arising out of SLP (Crl) No.4796 of 2018)

Criminal Appeal No. 1518 of 2018 (Arising out of SLP (Crl) No.4881 of 2018)

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REPORTABLE

Criminal Appeal No. 1521 of 2018 (Arising out of SLP (Crl) No.5032 of 2018)

Criminal Appeal No. 1530 of 2018 (Arising out of SLP (Crl) No.5897 of 2018)

Criminal Appeal No. 1520 of 2018 (Arising out of SLP (Crl) No.4968 of 2018)

Criminal Appeal No. 1526  of 2018 (Arising out of SLP (Crl) No.5893 of 2018)

Criminal Appeal No. 1525 of 2018 (Arising out of SLP (Crl) No.5892 of 2018)

Criminal Appeal No. 1519 of 2018 (Arising out of SLP (Crl) No.4953 of 2018)

Criminal Appeal No. 1528  of 2018 (Arising out of SLP (Crl) No.5895 of 2018)

Criminal Appeal No. 1523  of 2018 (Arising out of SLP (Crl) No.5886 of 2018)

Criminal Appeal No. 1527  of 2018 (Arising out of SLP (Crl) No.5894 of 2018)

Criminal Appeal No. 1524  of 2018 (Arising out of SLP (Crl) No.5891 of 2018)

Criminal Appeal No. 1529  of 2018 (Arising out of SLP (Crl) No.5896 of 2018)

Criminal Appeal No. 1522 of 2018 (Arising out of SLP (Crl) No.5877 of 2018)

2

Criminal Appeal No. 1533  of 2018 (Arising out of SLP (Crl) No.7223 of 2018)

Criminal Appeal No. 1532 of 2018 (Arising out of SLP (Crl) No.7222 of 2018)

Criminal Appeal No. 1536 of 2018 (Arising out of SLP (Crl) No.7228 of 2018)

Criminal Appeal No. 1531 of 2018 (Arising out of SLP (Crl) No.7221 of 2018)

Criminal Appeal No. 1534  of 2018 (Arising out of SLP (Crl) No.7225 of 2018)

And

Criminal Appeal No. 1535  of 2018 (Arising out of SLP (Crl) No.7227 of 2018)

JUDGMENT

N.V. RAMANA, J.

1. Leave granted.

2. The present appeals are filed by the State having been aggrieved

by the common judgment and order dated 29th  January, 2018

passed by the High Court of Punjab and Haryana, allowing the

applications for suspension of sentence, preferred by the

accused­respondents herein under Section 389 Cr.P.C. and

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directing to release them on bail, while the Appeals are pending

in the High Court.  

3. In order to appreciate the  merits of theseappeals, brief facts

which have emerged from the case of the prosecution need to be

noted at the outset. In all these appeals, the accused­

respondents were apprehended with“manufactured drugs” and

convicted by the Trial Court for offences committed under

Section 21 or Section 22 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as

“N.D.P.SAct”). The alleged offences and conviction recorded by

the Trial Court against the respondents are listed below:

S.NO. CASE NO.

NAME OF ACCUSED  

RECOVERY CONVICTION JUDGMENT BY & DATE

1.

CRA­ S­840­ SB­ 2015

Rakesh Kumar

3500 tablets of Microlit containing Diphenoxylate salt

U/s 22 of NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Special Judge, Sri Muktsar Sahib –

18.11.2014

2.

CRA­ S­227­ SB­ 2015

Anwar Khan @ Soni

3.900 kgs of intoxicating powder

containing Dexiropropoxyphen

e salt

U/s 22 of NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Judge, Special Court,

Sangrur – 17.11.2014

3. CRA­ S­

Monnu 81.76 gms salt Diphenoxylate

U/s 22 of NDPS Act

Special Judge,

4

3148­ SB­ 2015

Hydrochloride

– 10 years RI &

Rs.1.00 lac fine.

Ferozepur – 04.06.2015

4.

CRA­ S­

4134­ SB­ 2015

Dharmu Diphenoxylate powder in

commercial quantity

U/s 22 of NDPS Act – 10 years

RI &Rs.1.00 lac fine.

Judge, Special Court,

Ludhiana  – 25.05.2015

5.

CRA­ S­

5246­ SB­ 2015

Gurwinder Singh

70 gms containing Diphenoxylate salt

U/s 22 of NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Judge, Special Court,

Ludhiana – 10.11.2015

6.

CRA­ S­71­ SB­ 2016

Mohd. Akhtar @

Soni

19110 mls of intoxicating liquid 10 capsules of Parvon Spas, 10

tablets of Euphoria

U/s 22 (a) & 2(c) of NDPS Act – 1 year RI &

Rs.5000/­ fine and 10 years RI &

Rs.1.00 lac fine.

Judge, Special Court,

Sangrur – 09.12.2015

7.

CRA­ S­323­ SB­ 2015

Munish Kumar 15 Vials of Rexcof

U/s 22 of NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Judge, Special Court,

Bathinda – 09.01.2015

8.

CRA­ S­200­ SB­ 2017

Gudawar Ram @ Gabbu

60 gms intoxicating powder containing Diphenoxylate salt

U/s 22 of NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Judge, Special

Court, SBS Nagar –

09.12.2016

9. CRA­ Baljinder 7500 mls of Corex U/s 22 of Judge,

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S­766­ SB­ 2017

Singh @ Banty

syrup containing Codeine phosphate

NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Special Court,

Sangrur – 20.12.2016

10.

CRA­ S­

1413­ SB­ 2017

Sukhraj Kaur @ Raj

120 bottles of Rexcof containing Codeine phosphate

U/s 22 of NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Judge, Special Court,

Sangrur – 08.03.2017

11.

CRA­ S­

4055­ SB­ 2016

Gurpreet Singh @ Gopi

25 gms Heroin & 250 gms

intoxicating powder containing Alprazolam

U/s 21 of NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Judge, Special Court,

Amritsar – 06.09.2016

12.

CRA­ S­

2933­ SB­ 2016

Salwinder Singh @ Shinda

320 gms intoxicating powder

containing Diphenoxylate

U/s 22 of NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Judge, Special

Court, Tarn Taran –

09.08.2016

13.

CRA­ S­985­ SB­ 2017

Karamjit Singh @ Karma

10 Vials of Rexcof containing Codeine

Phosphate

U/s 22 of NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Judge, Special Court,

Faridkot – 04.01.2017

14.

CRA­ S­723­ SB­ 2016

Mandeep Singh @ Mani

300 gms intoxicating powder

containing Diphenoxylate Hydrochloride

U/s 22 of NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Addl. Sessions Judge,

Amritsar – 23.12.2015

15. CRA­ S­

1531­ SB­ 2016

Jagmohan Singh @ Mithu

100 gms intoxicating powder

containing Diphenoxylate Hydrochloride

U/s 22 of NDPS Act – 10 years

RI & Rs.1.00

Judge, Special Court,

Amritsar – 10.03.2016

6

lac fine.

16.

CRA­ S­

2398­ SB­ 2017

Nachhatar Singh @ Sonu

60 gms intoxicating powder containing Diphenoxylate

U/s 22 of NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Judge, Special

Court, Tarn Taran–

16.05.2017

17.

CRA­ S­

1972­ SB­ 2017

Gaurav Bajaj (the other

appellant Manpreet Singh)

50 bottles of Rexcof syrup & 250 tablets of Carisona from Gaurav Bajaj 45 bottles of Rexcof

syrup & 200 tablets of Carisona from Manpreet Singh

U/s 22 of NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Judge, Special Court, Fazilka–

17.03.2017

18.

CRA­ S­

3921­ SB­ 2013

Gurpreet Singh

19 vials of Rexcof, 1200 tablets of Pinotil and 450

tablets of Alprazolam

U/s 22 of NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Judge, Special Court,

Bathinda – 24.10.2013

19.

CRA­ S­

1529­ SB­ 2017

Jaspal Singh

12 vials of Rexcof containing codeine

Phosphate

U/s 22 of NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Judge, Special Court,

Sangrur – 07.03.2017

20.

CRA­ S­750­ SB­ 2014

Sanjiv Kumar & Paramjit Singh @ Pamma

1300 tablets weighing 101, 400 gms from Sanjiv

Kumar; 400 tablets weighing 31.200 gms from Paramjit Singh @ Pamma

U/s 22 of NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Judge, Special Court­III,

Ferozepur – 27.01.2014

21.

CRA­ S­

4894­ SB­ 2015

Akash Kumar

3500 mls containing Codeine Phosphate

U/s 22 of NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Judge, Special Court,

Sangrur – 16.10.2015

7

22.

CRA­ S­

2574­ SB­ 2017

Satnam Singh

20 vials of Rexcof containing

Dextropropoxyphene

U/s 22of NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Judge, Special Court,

Faridkot – 06.07.2017

23.

CRA­ S­

1616­ SB­ 2017

Amit Kumar Mehta

2000 tablets containing

Diphenoxylate Hydrochloride

U/s 22 of NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Judge, Special Court, Patiala –

01.03.2017

24.

CRA­ S­185­ SB­ 2017

Gurjant Singh @ Janta

60 gms intoxicating powder containing Diphenoxylate

U/s 22 of NDPS Act – 10 years

RI & Rs.1.00 lac fine.

Addl. Sessions

Judge, Tarn Taran –

20.10.2016

25.

CRM­ M­

23054­ 2017

Gurpreet Singh @ Tuli

100 tablets marka Alprazolam in 5

strips, 12 injections Buprenorphine 2 ml, 2 bottles of

injections Avil 10 ml & 116 gms

intoxicant powder

U/s 22/61/85 of NDPS

Act

Judge, Special Court,

Jalandhar

4. Aggrieved by the Judgment and conviction by the respective Trial

Courts, the  accused­respondents approached  the High Court

through various appeals. The accused­respondents, during the

pendency of the appeals, preferred an application seeking

suspension of sentence. Since a common question of law was

involved in the above appeals, the High Court heard the matters

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together and passed a common order dated 29.01.2018,

allowing the applications for suspension of sentence preferred

by the accused­respondents. The  High Court observed that

manufactured drugs, be it containing narcotic drugs or

psychotropic substances, if manufactured by a manufacturer,

must be tried, if violation is there, under the Drugs and

Cosmetics Act and not under the NDPS Act,  except those in

loose  form by way of  powder,  liquid etc.  Dissatisfied by the

above order dated 29.01.2018, the State has preferred the

present appeals.

5. The counsel on behalf of the appellant­State, while criticizing the

impugned order passed by the High Court, drew our attention

to the relevant provisions of the N.D.P.S Act and Drugs and

Cosmetics Act, 1940, and submitted that, the N.D.P.S Act, itself

does not bar the application of the Drugs and Cosmetics Act,

1940. Further, the counsel also argued that, the impugned

judgment is in gross violation of the decision rendered in

Inderjeet Singh v. State of Punjab  2014 (3) RCR (Criminal)

953, by the Division Bench of the Punjab and Haryana High

Court. The counsel also relied upon the decision rendered by

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this Court in Union of India v. Sanjeev V. Deshpande (2014)

13 SCC 1, wherein it was clearly held that dealing in narcotic

drugs and psychotropic substances is permissible only if it is

for  medical or scientific purposes. But even the usage for

medical and scientific purposes is not restriction free, as it is

subject to rules under the N.D.P.S Act.

6. On the contrary, the counsel on behalf of the accused­

respondents  has  supported the reasoning  of the  High Court

while  stating that it is  very farfetched to  presume that,  any

person who is apprehended with bulk quantity of manufactured

drug, without having a license for the same, has committed an

offence which is liable to be prosecuted under the N.D.P.S Act.

The counsel further submitted that, the High Court was correct

to  conclude that, it can  be considered  as  a violation  of the

provisions of the Drugs and Cosmetics Act,  1940. Therefore,

there was no error in granting the relief of suspension of

sentence, considering that the appeals are not going to be

adjudicated in the near future.

7. Heard the learned counsel for both the parties.  

8. At the outset it is essential to  note the objectives of the two

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legislations before us, i.e., the Drugs and Cosmetics Act, 1940

and the N.D.P.S Act. The Drugs and Cosmetics Act, 1940 was

enacted to specifically prevent sub­standard drugs and to

maintain high standards of medical treatment. (See Chimanlal

Jagjivandas Sheth v. State of Maharashtra  AIR 1963 SC

665) The Drugs and Cosmetics Act,1940 was mainly intended

to curtail the  menace of adulteration of drugs and also of

production, manufacture, distribution and sale of spurious and

sub­standard drugs. On the other hand, the N.D.P.S Act is a

special law enacted by the Parliament with an object to control

and regulate the operations relating to narcotic drugs and

psychotropic substances. After analyzing 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

N.D.P.S Act intends to curb and penalize the usage of drugs

which are usedfor intoxication or for getting a stimulant effect.

9. At this juncture, it is also pertinent to note the relevant

provisions under the N.D.P.S Act. Section 8 of the 1985 Act, is

the prohibitory clause whose violation would lead to penal

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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 inter­State, export inter­ State,  import into India, export from India or transship 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 and in a case where any such provision, imposes any requirement by way of licence, permit or authorization also in accordance with the terms and conditions  of such licence, permit or authorization:

Provided that, and subject to the other provisions of this Act and the rules made there under, the prohibition against  the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter­State and export inter State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf.

10. Further, Section 21 provides for punishment for contraventions in

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relation to manufactured drugs and preparations and Section 22

provides for punishment for contraventions in relation to

psychotropic substances. Both the above provisions provide for

the imposition of rigorous imprisonment for a term which shall

not be less than ten years but which may extend to twenty years,

and the imposition of a fine which shall not be less than one lakh

rupees but which may be  extended to two  lakh rupees, if the

recovered substance amounts to commercial quantity. However,

the proviso appended thereto empowers the Court, with a

discretionary power to impose a fine exceeding two lakh rupees

for reasons to be recorded in the judgment.

11. In the present case, the accused­respondents were found in bulk

possession of manufactured drugs without any valid

authorization. The counsel on behalf of the appellant­State has

extensively stressed that the actions of the accused­Respondents

amounts to clear violation of Section 8 of the N.D.P.S Act as it

clearly prohibits possession of narcotic substances except for

medicinal or scientific purposes. In furtherance of the same, the

counsel on behalf of the appellant­State has put emphasis on the

judgment rendered by this court in the case of  Union of India

13

vs. Sanjeev V. Deshpande (supra), wherein it was held that:

“25.  In other  words,  DEALING  IN  narcotic drugs and psychotropic substances is permissible only when such DEALING is for medical purposes or scientific purposes. Further, the mere fact that the DEALING IN narcotic drugs and psychotropic substances is for  a  medical  or  scientific purpose does not by itself lift the embargo created Under Section 8(c). Such a dealing must be in the manner and extent provided by the provisions of the Act, Rules or Orders made thereunder. Sections 9 and 10 enable the Central and the State Governments respectively to  make rules permitting and regulating various aspects (contemplated under Section 8(c), of DEALING IN narcotic drugs and psychotropic substances.

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…”

(emphasis supplied)

12. In the present appeals before us, the trial courts after analyzing

the evidence placed before them, held the accused Respondents

guilty beyond reasonable doubt and convicted them for offences

committed under Section 21 and Section 22 of the N.D.P.S Act.

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13. The counsels for the accused­respondents have strongly

supported the judgment of the High Court wherein it was held

that, since the present matters deal with “manufactured drugs”

the present respondents should be tried for the violation of

provisions of Drugs and Cosmetics Act, 1940.  

14. However, we are unable to agree on the conclusion reached by the

High Court for reasons stated further. First, we note that Section

80 of the N.D.P.S Act, clearly lays down that application of the

Drugs and Cosmetics Act is not barred, and provisions of

N.D.P.S. Act can be applicable in addition to that of the

provisions of the Drugs and Cosmetics Act. The statute further

clarifies that the provisions of the N.D.P.S Act are not in

derogation of the Drugs and Cosmetics Act, 1940. This Court in

the case of  Union of India vs. Sanjeev V. Deshpande (supra),

has held that,

“35.   …essentially the Drugs & Cosmetics Act, 1940 deals with various operations of manufacture, sale, purchase etc. of drugs generally  whereas Narcotic Drugs and Psychotropic Substances Act, 1985 deals with a  more specific class of drugs and, therefore, a special law on the subject. Further the provisions of the  Act operate in addition to the provisions of 1940 Act.”

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(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 offender in accordance with law. In the present case, since the

action  of the accused­Respondents amounted to a  prima­facie

violation of Section 8 of the N.D.P.S Act, they were charged under

Section 22 of the N.D.P.S Act.

16. In light of above observations, we find that decision rendered by

the High Court holding  that  the accused­respondents must be

tried under the Drugs and Cosmetics Act,  1940 instead of  the

N.D.P.S Act, as they were found in possession of the

“manufactured drugs”, does not hold good in law. Further, in the

present case, the accused­respondents had approached the High

Court seeking suspension of sentence. However, in granting the

aforesaid relief, the High Court erroneously made observations on

the merits of the case while the appeals were still pending before

it.  

17. Considering the facts and circumstances of the present case and

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the  gravity  of  offence  alleged against the  accused­respondents,

the order of the High Court directing suspension of sentence and

grant of bail is clearly unsustainable in law and the same is liable

to be set aside.

18. Accordingly the impugned order passed  by the  High  Court is

hereby set aside and the concerned authorities are directed to

take the accused­respondents herein into custody forthwith.

19. Lastly, the counsels for respondents in Appeals arising out of SLP

(Crl) No.4816/2018 and SLP (Crl) No.4817/2018 have specifically

pleaded that the respondents have already undergone a

considerable period under incarceration. In light of the same, we

request the High Court to expedite the hearings and dispose of

the appeals accordingly. It is needless to observe that the

observations made during the course of this order are only for

deciding these appeals.  

20. The appeals stand allowed in aforesaid terms. As a sequel

pending applications, if any shall also stand disposed of.

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……………………………..J.

(N. V. Ramana)

……………………………..J.

(Mohan M. Shantanagoudar)  

……………………………..J.

(M.R. Shah)

NEW DELHI,

DECEMBER 03, 2018

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