NDPS Act | Courts Can't Declare A Particular Drug As 'Manufactured Drug' Or 'Psychotropic Substance': JKL High Court

The Jammu and Kashmir and Ladakh High Court has observed that the Courts cannot make a declaration that a particular drug is a 'manufactured drug' or a 'psychotropic substance' under the NDPS Act.

The Bench of Justice Sanjay Dhar observed thus as it and that this is the job of the Government to take decisions over including a particular drug in the list of 'manufactured drugs' or 'psychotropic substances' under the NDPS Act.

It may be noted that 'Manufactured drug' is defined in Section 2(xi) of the NDPS Act and it includes all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate besides any other narcotic substance or preparation declared to be as such by notification in the official gazette.

On the other hand, Section 2(xxii) of the NDPS Act defines the 'Psychotropic substance'. Any substance or the material included in the list of psychotropic substances specified in the Schedule to the NDPS Act would come within the definition of 'Psychotropic substance'.

The case in brief

Essentially, one Khurshid Ahmad Dar had moved to the HC with his Section 482 of CrPC application (and also bail plea) against the order passed by Principal Sessions Judge, Anantnag, whereby charges for offences under Section 21/22 of the NDPS Act have been framed against the petitioner.

He was arrested with 35 strips of 'Spasmo Proxyvan-T Plus', which as per the FSL report, contained "Tapentadol" and therefore, the Trial Court framed charges for offences under Section 21/22 of the NDPS Act against him and also dismissed successive bail applications of the petitioner.

Moving to the HC, he argued that the aforesaid drug (Tapentadol) does not find its mention in the Schedule to the NDPS Act, 1985, and thus, he could not have been charged for offences under Section 21/22 of the NDPS Act and consequently the rigor of Section 37 of the NDPS Act in the matter of grant of bail to the petitioner could not have been invoked by the trial court while rejecting his bail applications.

Court's observations 

At the otuset, the Court noted that what is punishable under Section 21 of the NDPS Act is possession of 'manufactured drugs' and preparations thereof and under Section 22 of the NDPS Act, the possession of 'psychotropic substances' has been made punishable.

Thus, the Court added, unless a drug qualifies to be a 'manufactured drug' or a 'psychotropic substance' the possession thereof would not be an offence under the provisions of Section 21 or Section 22 of the NDPS Act.

In view of this, the Court concluded that in the instant case, as per the report of the FSL, the drug allegedly recovered from the petitioner contain the substance 'Tapentadol' which has neither been notified as 'manufactured drug' nor the same has been included in the Schedule to the NDPS Act.

Therefore, finding fault with the conclusion arrived at by the trial court, the High Court stressed that the possession of any such drug which is neither a manufactured drug/narcotic drug nor a 'psychotropic substance' without a license or authority may be an offence under the Drugs and Cosmetics Act or J&K Excise Act but it DOES NOT qualify to be an offence under the provisions of the NDPS Act.

"The kind of drug that has been recovered from the possession of the petitioner may have an adverse impact on its consumers or even it may cause addiction but then it is for the Government to consider these aspects and having regard to the available information as to its nature, include it in the list of 'manufactured drugs' or 'psychotropic substances'. The Courts cannot enter into this arena and make a declaration that a particular drug is a 'manufactured drug' or a 'psychotropic substance'.This is exactly what the learned trial court has done, thereby exceeding its jurisdiction," the Court further held as it set aside the order of framing of charge and also granted bail to the petitioner.

Case title - KHURSHID AHMAD DAR v. UNION TERRITORY OF J&K

Citation: 2022 LiveLaw (JKL) 14

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