//
you're reading...
legal issues

Sec.80 Application of the Drugs and Cosmetics Act, 1940 not barred – Secs.8 ,19, 24, 27A and 37 , and Rules 63,64 and 65 – all rules etc., are in support of central act and in addition to central act – in Rajesh kumar Gupta case it was wrongly decided that the prohibition contained in Rule 63[11] 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. and further held that In the light of our above conclusion the correctness of the orders impugned in all the Criminal Appeals is normally required to be considered by the Bench of appropriate strength. However, in view of the fact that most of these matters are old matters [pertaining to years 2006 to 2013], we deem it appropriate to remit all these matters to the concerned High Courts for passing of appropriate orders in the light of this judgment.=CRIMINAL APPEAL NO. 660 OF 2007 Union of India & Another …Appellants Versus Sanjeev V. Deshpande …Respondent = 2014 – Aug.Part – http://judis.nic.in/supremecourt/filename=41821

   Sec.80 Application of the Drugs and Cosmetics Act, 1940 not  barred– Secs.8 ,19,  24,  27A and  37 , and Rules 63,64 and 65 – all rules etc., are in support of central act and in addition to central act – in Rajesh kumar Gupta case it was wrongly decided that the prohibition contained in  Rule  63[11]  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. and further held that In the light of our above conclusion the  correctness  of  the  orders impugned in all the Criminal Appeals is normally required to  be  considered by the Bench of appropriate strength.  However, in view  of  the  fact  that most of these matters are old matters [pertaining to years  2006  to  2013], we deem it appropriate to remit all these  matters  to  the  concerned  High Courts for passing of appropriate orders in the light of this judgment.=

 

“Our attention has been invited by the learned counsel to two  decisions  of

this Court; namely, 

a decision of 3-Judge Bench  in  Collector  of  Customs,

New Delhi vs. Ahmadalieva Nodira (2004) 3 SCC 549  and  

subsequent  decision

of 2-Judge Bench in State of Uttaranchal vs. Rajesh  Kuamr  Gupta  (2007)  1

SCC 355.

Reference  was  also  made  of  Section  80  of  the  Narcotic   Drugs   and

Psychotropic Substances Act, 1985 which reads as under:

“80.  Application of the Drugs and Cosmetics Act, 1940 not  barred.   –

The

provisions of this Act or the rules made there under  shall  be  in  addition

to, and not in derogation of, the Drugs  and  Cosmetics  Act,  1940  (23  of

1940) or the rules made there under.

In our opinion, in view of the fact that the effect of Section  80  requires

to be considered, we grant leave  and  direct  the  Registry  to  place  the

papers before the Hon’ble  the  Chief  Justice  for   placing   the   matter

before  a 3-Judge Bench.

whether  persons  accused  of  committing  an

offence under the Act could be enlarged on bail in view of the  stipulations

contained under Section 37 of the Act. 

Section 37[1] of the Act stipulates that all the  offences  punishable

under the Act shall be cognizable.

It further stipulates that:—

(1)   persons accused of an offence under Section 19,  24,  27A  or  persons

accused of offences  involved  in  “commercial  quantity”[2]  shall  not  be

released on bail, unless the public prosecutor is given  an  opportunity  to

oppose the application for bail; and

(2)   more importantly that unless “the Court is satisfied  that  there  are

reasonable grounds for believing” that the accused is not guilty of such  an

offence.

Further, the Court is also required to be satisfied that  such  a

person is not likely to commit any offence while on bail.

In other words, Section 37 departs from the long  established  principle  of

presumption of innocence  in  favour  of  an  accused  person  until  proved

otherwise.

6. As observed by this Court in Union of India v. Thamisharasi  clause  (b)

of sub-section (1) of Section 37 imposes limitations on granting of bail  in

addition to those provided under the Code.

The two limitations are:  (1)  an

opportunity to the Public Prosecutor to oppose  the  bail  application,  and

(2) satisfaction  of  the  court  that  there  are  reasonable  grounds  for

believing that the accused is not guilty of such offence and that he is  not

likely to commit any offence while on bail.

7. The limitations on granting of bail come in only  when  the  question  of

granting bail arises on merits.

Apart from the grant of opportunity  to  the

Public Prosecutor, the other twin conditions which really have relevance  so

far as the present accused-respondent is concerned,  are:  the  satisfaction

of the court that there  are  reasonable  grounds  for  believing  that  the

accused is not guilty of the alleged offence and that he is  not  likely  to

commit any offence while on bail.

The  conditions  are  cumulative  and  not

alternative.

The satisfaction contemplated regarding the accused  being  not

guilty has to be based on reasonable  grounds.

The  expression  “reasonable

grounds” means something more than  prima  facie  grounds.

It  contemplates

substantial probable causes for believing that the accused is not guilty  of

the alleged offence…”=

Whereas Rule 65 stipulates that with  reference  to  the  psychotropic

substances other than those specified in Schedule-I to the  Rules  could  be

manufactured subject to the limitation specified under Rule  65.   In  other

words, notwithstanding the  prohibition  under  Section  8(c),  the  Central

Government in exercise of its power under Section  9(1)(a)(vi)  permits  the

manufacture  of  those  psychotropic  substances  other  than  specified  in

Schedule-I to the Rules.=

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.=

We are unable to agree with the conclusion (reached  in  Rajesh  Kumar

Gupta’s case) that the prohibition contained in  Rule  63[11]  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.  =

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’s case in our view is wrongly decided.

In view of our conclusion, the complete analysis of  the  implications

of Section 80[15] of the Act is not really called for in the  instant  case.

It is only required to be stated that  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.

36.   In the light of our above conclusion the  correctness  of  the  orders

impugned in all the Criminal Appeals is normally required to  be  considered

by the Bench of appropriate strength.

However, in view  of  the  fact  that

most of these matters are old matters [pertaining to years  2006  to  2013],

we deem it appropriate to remit all these  matters  to  the  concerned  High

Courts for passing of appropriate orders in the light of this judgment.

37.   Ordered accordingly.  Appeals stand disposed of.

2014 – Aug.Part – http://judis.nic.in/supremecourt/filename=41821

CHIEF JUSTICE, J. CHELAMESWAR, A.K. SIKRI

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,759,624 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,854 other followers

Follow advocatemmmohan on WordPress.com