Brief Facts
- Trial Court arrived 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 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. The orders were subsequently upheld by the High Court resulting in present petitions.
Issues
- 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 13 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?
- Whether the decision of this Court in Sanjeev V. Deshpande (2014 13 SCC 1) must operate with prospective effect?
- 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?
Held
- Supreme Court quashed the order of the High Court and directed that both the accused persons be tried by the Special Judge, NDPS in accordance with law.
- Supreme Court held that the decision in the case of Sanjeev V. Deshpande (Supra) will apply retrospectively from the date of its judgment. The findings of the Court are as under:
Offence will be constituted under the NDPS Act
- 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 deal 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.
Principles governing the doctrine prospective overruling
- 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 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.
- 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.
- 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.
- Court further opined that any decision of a court would only be 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.
Trial Court cannot discharge once the charges have been framed
- 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.
Relevant Para No.
- 79, 122, 127 and 154