Charges Once Framed Accused Cannot Be Discharged: NDPS Act
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| Latest judgment SC 2025, Charges Once Framed Accused Cannot Be Discharged NDPS Act |
Charges Once Framed Accused Cannot Be Discharged NDPS Act
In
a significant judgment, the Supreme Court in the matter of Directorate
of Revenue Intelligence vs. Raj Kumar Arora & others decided on
17.04.2025 held that once charges
are framed by the Trail Court exercising power under section 228 CrPC, the
accused cannot be discharged thereafter, whether by exercising powers
under section 227 or 216 CrPC. It is
reiterated that the language of Section 216 CrPC provides only for addition and
alteration of charge(s) and not for deletion or discharge of an accused.
The
Supreme Court has ruled that Section 216 of CrPC does not give courts power to
delete charges and said the provision can only be used to add or alter charges.
The Court further held that the power under section 216 of the Criminal Procedure Code (Cr.P.C.) cannot be invoked to delete charges already framed against an accused, as it can only be used to add or alter the existing charges.
Background of the Case
The
case is that these appeals arise from the judgment and order passed by the High
Court of Delhi in Criminal Revision dated 13.07.2011 and in Criminal Misc dated 20.03.2013 by which the High Court
rejected the petition having found no legal infirmity in the order passed by
the Trial Court and came to the conclusion that no offence under section
8, 22 and 29 and under section 8(c) and 22(c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (NDPS Act) could not be committed as the
psychotropic substance in Schedule in question is not included in Schedule 1 of
the NDPS Rules.
The
Trail Court ultimately transferred the case to the Court of Metropolitan
Magistrate and directed it to proceed in accordance with the provisions of the
Drugs and Cosmetics Act, 1940 (D&C Act).
Brief Fact
The
brief fact is that the a criminal complaint in respect of the offences
punishable under 22 and 29 of the NDPS Act was filed by an intelligence officer
of the Directorate of Revenue Intelligence, New Delhi against the respondents
before the Special Court for NDPS Cases, New Delhi, alleging therein that
several glass ampoules containing an injectable preparation of Buprenorphine
were stored in an office. The further information was that the injections were
manufactured illegally.
The
Special Court observed that Buprenorphine is a psychotropic substance as per
Schedule to the NDPS Act and its commercial quantity is fixed at 20 gm. The
charge was framed by the Special Judge.
After
that the respondents filed bail application before the Special Judge and the
same was rejected by the Court. The respondents moved for bail before the High
Court, the High Court stated that no offence under the NDPS Act was made out
and directed that the respondents released on bail upon furnishing a personal
bond.
That
the observations of the High Court that the Buprenorphine Hydrochloride would
not be covered under the NDPS Act and not included under Schedule 1 of the NDPS
Act.
Thereafter,
the respondent preferred an application under 216 of the Code of Criminal
Procedure, 1973 (CrPC) before the Special Judge for alteration or amendment of
the charges, which was allowed by the Special Judge under section 216 Crpc.
Aggrieved
by the aforesaid order passed by the Special Judge, the appellant moved a Criminal
Revision before the High Court vide order dated 13/07/20211, the High Court
dismissed the Criminal Revision. In the decision of State of Uttaranchal vs.
Rajesh Kumar Gupta 2007 SCC 355 wherein it was observed that the provision
under section 8 of the NDPS Act would not apply.
Legal Issues
Whether the production, manufacture, possession, sale,
purchase, transport, warehousing, use, consumption, import inter-State, export
inter-State, import into India, export from India or transshipment of any
psychotropic substance listed in the Schedule to the NDPS Act but not mentioned
in Schedule I of the NDPS Rules would be an offence under Section 8(c) of the
NDPS Act?
Whether the decision of this Court in Sanjiv V. Deshpande
(supra) should be applied prospectively?
Once a charge is framed by the competent Court under Section
228 of the CrPC, can an accused thereafter seek discharge/deletion of a
particular offence from the charge under Section 216 of the CrPC?
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| Doctrine of Prospective overruling |
Court’s Analysis and Reasoning
The Doctrine of Prospective overruling, the Supreme Court held that the decision in Sanjeev V.
Deshpande (supra) must be given retrospective effect, we find it necessary to clarify that acquittals which have already been recorded as a consequence of the decision in Rajesh Kumar Gupta (supra) and have attained finality, would not be unsettled in light of the overruling decision in Sanjeev V. Deshpande(supra) or the observations made by us.
“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”.
The Court further stated that in both the appeals,
the Trial Courts vide their orders have in effect deleted the charge
framed for the offence under the provisions of the NDPS Act and
then transferred the file to the Court of the Metropolitan Magistrate
for proceeding in accordance with the provisions of the D&C Act,
without arriving at a decision to acquit the accused as regards the
charges already framed under the provisions of the NDPS Act. The same is
impermissible under the scheme of our criminal procedure code and both the Trial
Courts could be said to have committed a grave error while reaching the conclusion
that as the offences were not triable by them, the case should be transferred
to the court of the Metropolitan Magistrate respectively.
Moreover, we have no reason to declare the interpretation of
Section 8 of the NDPS Act and the relevant NDPS Rules in the decision in Sanjiv V. Deshpande (supra) as applicable prospectively. We have no cogent reason for
doing so.
Conclusion
The Supreme Court in view of the case that both the Trail
Court and the High Court have erred in holding that the offence under the
provisions of the NDPS Act is not made out. The Trail Court in both the appeal
could not have even discharged/ deleted the charges under the NDPS Act against
the accused persons while disposing of an application under section 216 CrPC. This
is not acceptable within Criminal procedure and the High court unfortunately
failed to take note of this aspect.
The Court further held that the power under section 216 of
the Criminal Procedure Code (Cr.P.C.) cannot be invoked to delete charges
already framed against an accused, as it can only be used to add or alter the
existing charges.
Accordingly, allow both the appeals and set aside the
impugned order passed by the High Court.
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