Mere Absence in Schedule I of NDPS Rules Irrelevant—Dealing in Psychotropic Substances in NDPS Act Schedule Is an Offence: Supreme Court Clarifies Scope of Section 8(c)

“It Would Be a Grave Error to Assume That Psychotropic Substances Not in NDPS Rules Schedule I Are Outside the NDPS Act”: - Supreme Court of India, in a pivotal decision in Union of India v. Ashu Kumar & Ors., conclusively held that psychotropic substances listed under the Schedule to the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) fall within the prohibition of Section 8(c) of the Act, even if they are not listed in Schedule I of the NDPS Rules, 1985. The Court clarified that the NDPS Rules do not override the statutory mandate of the parent Act, and the mere absence of a substance in the Rules cannot be a ground for decriminalisation.

“It would be a grave error to assume that the law was ever otherwise… The indiscriminate dealing in of substances only mentioned under the Schedule to the Act cannot be said to have been indubitably legal and allowed by the legislation prior to the decision in Sanjeev V. Deshpande.”

NDPS Act Schedule Prevails Over NDPS Rules: Court Says Offence Under Section 8(c) Is Attracted if Substance Is Listed in Act’s Schedule

Addressing the core issue of whether ‘Buprenorphine Hydrochloride’, a substance listed in the NDPS Act Schedule but not in Schedule I of the NDPS Rules, constitutes a punishable offence, the Court emphatically ruled:

“The decision in Sanjeev V. Deshpande... has only served to clarify the true meaning as exactly reflected in the statute, without any undue narrowing or expansion.”

The bench, comprising Justices J.B. Pardiwala and Manoj Misra, stated that Section 8(c) prohibits any activity involving narcotic drugs or psychotropic substances in contravention of the Act or Rules, and that interpretation must align with the object of the NDPS Act—preventing illicit traffic and abuse.

“The consistent line of decisions… which pre-existed the decision in Rajesh Kumar Gupta (supra)… serve as a testament to the undoubted position of law contained in the NDPS Act and its Rules, in this regard.”

Rajesh Kumar Gupta Decision Was a Misreading of Section 8—Correct Law Declared in Sanjeev V. Deshpande to Apply Retrospectively

The Court overruled the reasoning in Rajesh Kumar Gupta v. State of Rajasthan, which had held that only substances listed in Schedule I of the NDPS Rules were punishable, and that substances not in that list—but present in the Act’s Schedule—fell under the Drugs & Cosmetics Act. Rejecting that approach, the Court declared:

“Rajesh Kumar Gupta (supra) ignored the mandate of Section 8(c) of the NDPS Act and was wrongly decided.”

Further, it was clarified that the overruling in Sanjeev V. Deshpande must apply retrospectively:

“There exists no overwhelming reason for us to apply the doctrine of prospective overruling… The default rule of retrospectivity must prevail.”

NDPS Rules Do Not Create an Exhaustive List—Rules Are Subordinate to the Parent Act

The Court analysed the structure of the NDPS Act and Rules, noting that while Rules 53 and 64 under Chapters VI and VII relate to Schedule I, other provisions refer to the entire Schedule to the NDPS Act. Therefore, the absence of a substance from Schedule I of the Rules does not immunize it from prosecution under the Act.

“There exists nothing to indicate that Rules 53 and 64 of the NDPS Rules respectively are the governing rules in their respective chapters… The language of the other rules… is clear about their application to the substances mentioned under the Schedule to the Act as well.”

Thus, the Rules cannot be used to read down or narrow the scope of Section 8(c) of the NDPS Act, which clearly penalizes dealing with any psychotropic substance listed in the Schedule to the Act, unless done in accordance with the Act and the Rules.

Mention in Drugs & Cosmetics Act No Defence—NDPS Act Has Independent Operation

Addressing the common overlap of substances in both the NDPS Act and the Drugs & Cosmetics Act, 1940, the Court clarified:

“The mere mention of certain psychotropic substances under the D&C regime would not take them away from the purview of the NDPS Act, if they are also mentioned under the Schedule to the NDPS Act.”

The decision removes ambiguity for law enforcement and the judiciary in dealing with psychotropic substances with dual medical and abuse potential, such as Buprenorphine.

Court Upholds Object of NDPS Act—No Loopholes for Psychotropic Substances

The ruling reaffirms the object and purpose of the NDPS Act as a stringent law to combat drug abuse, and the Court cautioned against technical readings that would dilute its effectiveness:

“To meet the ends of justice and with a view to ensure that public interest is safeguarded and to give effect to the salutary object behind the enactment of the NDPS Act, the decision must necessarily be retrospectively applicable.”

This effectively shuts the door on prior defences raised by accused relying on the Rajesh Kumar Gupta interpretation, in pending trials under Section 8(c).

Date of Decision: 17 April 2025