Sanjeev Deshpande Applies Retrospectively: Supreme Court Restores NDPS Trials Over Buprenorphine, Bars Discharge Under Section 216

In the lead appeal, DRI officers seized 40,000 unlabelled ampoules and one labelled ampoule of buprenorphine hydrochloride from a Delhi office on 27.09.2003, and charges under Sections 22 and 29 of the NDPS Act were framed in February 2005 (paras 3-4, 11). In the connected appeal, the accused allegedly sold 2,50,400 buprenorphine injections without a consignment note, and a Section 22(c) charge was framed (paras 18-19). Relying on Rajesh Kumar Gupta, the Special Judges then allowed applications under Section 216 CrPC, held that no NDPS offence arose because buprenorphine is not in Schedule I of the Rules, and sent both cases to a Magistrate under the Drugs and Cosmetics Act; the Delhi High Court upheld both orders (paras 15-16, 21-22).

Section 2(xxiii) makes every substance in the Schedule to the Act a psychotropic substance, and Section 8(c) permits dealing only if three conditions are met together: a medical or scientific purpose, compliance with the Act, Rules and orders, and the terms of any licence (paras 52-56, 90). The Rules, framed under Sections 9 and 76, regulate rather than prohibit and cannot narrow Section 8; Rules 53 and 64 do not govern Chapters VI and VII (paras 59-69, 156). Following Sanjeev V. Deshpande, which overruled Rajesh Kumar Gupta, the NDPS regime applies in addition to the Drugs and Cosmetics Act under Section 80 (paras 78-90, 157). An overruling decision is retrospective by default, prospective overruling must be express, and there was no overwhelming reason to invoke it (paras 91-123). Retrospective application does not offend Article 20(1), as Deshpande only declared what the law always was and created no new offence (paras 124-136, 159). Final acquittals based on Rajesh Kumar Gupta stay undisturbed (paras 137, 160). Section 216 allows only alteration or addition of charges, so once a charge is framed under Section 228 the accused cannot be discharged; the trial courts had in effect deleted the NDPS charges (paras 142-155).