REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                  OF 2009 [ARISING OUT OF SLP (CRIMINAL) NO. 2312 of 2009]

D. RAMAKRISHNAN …APPELLANT   

Versus

INTELLIGENCE OFFICER NARCOTIC CONTROL BUREAU          …RESPONDENT

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. One Seethapathy (Accused No.1), since absconding, President of M/s  

Chandra  Importers  Inc.,  New  York  (for  the  sake  of  brevity,  hereinafter  

referred to as, “the Company”), was indulging in illegal internet pharmacy  

business.  It has a branch at Coimbatore.  Appellant herein (Accused No.2)  

was managing the activities of the said branch.  A search was made in the

office of the accused and various documents and computers were seized.  It  

is  alleged  that  the  appellant  used  to  mail  consolidated  requirements  by  

means of packing slips in the name of individual customers to the e-mail  

I.D. of the first accused.  The first accused used to procure different drugs  

indicated by the appellant by the local pharmacy and pack separately as per  

packing slips and dispatch the same to the customers abroad through airmail  

and RMS post office at Coimbatore.  The drugs procured and exported are  

Alprazolam,  Lorazepam, Nitrazepam, etc.   Indisputably,  these  drugs  find  

place at Serial Nos. 30, 56 and 64 respectively of the Schedule appended to  

the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the  

Act”)  

3. Inter alia, on the premise that  for  export  of  the  said  drugs  no  

permission from the Competent Authority was obtained, the appellant and  

his co-accused was prosecuted under Section 8(c) read with Section 22, 23,  

25, 27A, 53, 53A and 58 of the Act.   

Primarily,  relying on or on the basis of a decision of this Court in  

State of Uttaranchal  v.  Rajesh Kumar Gupta [(2007) 1 SCC 355], it  was  

urged  that  the  appellant  and  his  co-accused  might  have  committed  an  

2

offence under the Drugs and Cosmetics Act, 1940 but not under the Act or  

the Rules framed thereunder.  The learned Special Judge as also the High  

court, however, disagreeing with the said contention of the appellant herein  

rejected his application for bail.  

4. Mr. K.T.S. Tulsi, learned Senior Counsel appearing on behalf of the  

appellant would contend that the High Court committed a serious error in  

passing the impugned order insofar as it failed to take into consideration that  

all drugs being Schedule ‘G’ and ‘H’ drugs under the Drugs and Cosmetics  

Rules, 1945, export thereof would not attract the provisions of Rule 58 of  

the Narcotic Drugs and Psychotropic Substances Rules, 1985 (for short, “the  

Rules”)  framed  by  the  Central  Government  in  exercise  of  the  powers  

conferred upon it by Section 9 read with Section 76 of the Act.  Mr. Tulsi  

furthermore  contended  that  use  of  the  drugs  for  medicinal  purposes  is  

acknowledged in terms of the proviso appended to Section 8(c) of the Act.  

In any event, he would content, Rules 53 and 64 of the Rules being genus,  

Rule 58 would be subject to Rule 53.   

5. Mr. Mohan Jain, learned Additional Solicitor General appearing on  

behalf of the respondent, on the other hand, would contend that in terms of  

3

Rules 58 and 59 of the Rules, no export of any drug is permissible unless a  

permit is obtained for export thereof from the Competent Authority.  It was  

urged that the minimum sentence for the offences committed for which the  

appellant has been charged being 10 years, this Court should not enlarge the  

appellant on bail.   

6. The drugs in question are no doubt mentioned in Schedule ‘G’ and  

‘H’ of the Drugs and Cosmetics Rules.   

7. Section 2(xxiii) of the Act defines “psychotropic substance” to mean,  

any substance, natural or synthetic,  or any natural  material  or any salt  or  

preparation of such substance or material included in the list of psychotropic  

substances  specified  in  the  Schedule.  The  drugs  mentioned  in  the  First  

Information Report (“FIR”) find place at Serial Nos. 30, 56 and 64 of the  

Schedule  appended  to  the  Act.   Chapter  III  of  the  Act  provides  for  

prohibition of certain operations.  Clause (c) thereof mandates that no person  

shall  produce,  manufacture,  possess,  sell,  purchase,  transport,  warehouse,  

use, consume, import inter-state, export inter-state, import into India, export  

from India or transship any narcotic drug or psychotropic substance, except  

for  medical  or  scientific  purposes  and  in  the  manner  and  to  the  extent  

provided by the provisions of this Act or the rules or orders made thereunder  

4

and in a case where any such provision, imposes any requirement by way of  

licence,  permit  or  authorization  also  in  accordance  with  the  terms  and  

conditions of such licence, permit or authorization.   

8. Chapter VI of the Rules deals with import, export and transshipment  

of narcotic drugs and psychotropic substances.  Rule 53 provides for general  

prohibition.  Rule 58 provides that subject to rules 3 and 53A, no narcotic  

drugs, or psychotropic substances specified in the Schedule of the Act, shall  

be exported out of India without an export authorization in respect of the  

consignment issued by the issuing authority in Form No.5 appended to these  

therein.   Rule  59  provides  for  issue  of  export  authorization.   Rule  63  

provides for prohibition of  import  and export  of  consignments  through a  

post office box,

9. In Rajesh Kumar Gupta (supra), this Court opined:

“19. It has not been brought to our notice that the  1985 Act provides  for  the manner  and extent  of  possession  of  the  contraband.  The  rules  framed  under Section 9 of the 1985 Act read with Section  76 thereof, however, provide for both the manner  and  the  extent,  inter  alia,  of  production,  manufacture, possession, sale, purchase, transport,  etc.  of  the  contraband.  Chapter  VI  of  the  1985  Rules  provides  for  import,  export  and  trans- shipment  of  narcotic  drugs  and  psychotropic  

5

substances. Rule 53 contains general prohibition in  terms whereof the import and export out of India  of the narcotic drugs and psychotropic substances  specified  in  Schedule  I  appended  thereto  is  prohibited. Such prohibition, however, is subject to  the other provisions of the said Chapter. Rule 63 to  which  our  attention  has  been  drawn  specifically  prohibits  import  and  export  of  consignments  through a post office box but keeping in view the  general prohibition contained in Rule 53 the same  must  be  held  to  apply  only  to  those  drugs  and  psychotropic  substances  which  are  mentioned  in  Schedule  I  of  the  Rules and not  under  the 1985  Act.  Similarly,  Chapter  VII  provides  for  psychotropic  substances.  Rule  64  provides  for  general prohibition. Rules 53 and 64, thus, contain  a genus and other provisions following the same  under the said Chapter are species thereof. This we  say  in  view  of  the  fact  that  whereas  Rule  64  provides for general prohibition in respect of sale,  purchase, consumption or use of the psychotropic  substances  specified  in  Schedule  I,  Rule  65  prohibits manufacture of psychotropic substances,  whereas  Rule  66  prohibits  possession,  etc.  of  psychotropic  substances  and  Rule  67  prohibits  transport  thereof.  Rule 67-A provides for special  provisions for medical and scientific purposes. 20. The general  prohibitions  contained in both  Rules 53 and 64, therefore, refer only to the drugs  and psychotropic substances specified in Schedule  I. It is neither in doubt nor in dispute that whereas  the Schedule appended to the 1985 Act contains  the  names  of  a  large  number  of  psychotropic  substances, Schedule I of the Rules prescribes only  35 drugs and psychotropic substances.”

10. Appellant and his co-accused are said to have got licenses under the  

Drugs  and  Cosmetics  Act,  1940.   They  had  got  general  permission  for  

import and export.  

6

11. Section 80 of the Act provides that the provisions of the Act or the  

rules made thereunder are in addition to, and not in derogation of the Drugs  

and Cosmetics Act, 1940 or the rules made thereunder.   

Drugs  and  Cosmetics  At,  1940  does  not  deal  with  exports.   The  

provisions of Customs Act do. The licensees, therefore, were, thus, required  

to comply with the specific requirements of the Act and the Rules.  It is not  

denied or  disputed that  the appellant  neither  applied for  nor  granted any  

authority to export by the Narcotic Commissioner or any other Officer who  

is authorized in this behalf.  

12. We,  therefore,  are  of  the  opinion  that  the  High  Court  is  right  in  

opining that the decision of this Court in Rajesh Kumar Gupta (supra) is not  

applicable to the facts of this case.   

13. For the reasons aforementioned, there is no merit in the appeal.  The  

appeal is dismissed accordingly.  No costs.

14. However, the trial court may consider the desirability of concluding of  

the trial as early as possible.  The observations made herein are only for the  

7

purpose of determining as to whether a prima facie case is made out against  

the appellant and the same may not be construed to be a finding on the guilt  

of the appellant or otherwise.  The learned Special Judge shall determine the  

case pending before it in accordance with law and on its own merits.  

………………………….J. [S.B. Sinha]

..…………………………J.     [Deepak Verma]

New Delhi; July 27, 2009             

8