Retrospective Criminal Liability for Non‑Schedule‑I Psychotropic Substances & Limits on Alteration of Charge
A Detailed Commentary on Directorate of Revenue Intelligence v. Raj Kumar Arora (2025 INSC 498)

1. Introduction

The Supreme Court’s decision in Directorate of Revenue Intelligence v. Raj Kumar Arora & ors. (along with companion appeal NCB v. Sajesh Sharma) addresses two recurring controversies under India’s narcotics jurisprudence:

• Whether dealing in psychotropic substances that appear in the Schedule to the NDPS Act but do not figure in Schedule I to the NDPS Rules constitutes an offence under s. 8(c) of the Act.
• Whether, after charges have been framed, a court can discharge an accused or delete charges by invoking s. 216 CrPC (the power to “alter or add” charges).

The Court not only clarifies these substantive and procedural questions, it forges a significant precedent on retrospectivity and the doctrine of prospective overruling in criminal matters, holding that its earlier ruling in Union of India v. Sanjeev V. Deshpande (2014) operates retrospectively.

2. Summary of the Judgment

1. Scope of s. 8(c) NDPS Act: The prohibition applies to all psychotropic substances listed in the Act’s Schedule; inclusion in Schedule I of the Rules merely attracts additional restrictions, not the offence‑creating provision itself. Hence, buprenorphine/buprenorphine‑HCl is squarely covered.
2. Retrospective effect of Sanjeev V. Deshpande: The Court refuses to apply prospective overruling; the 2014 decision overruling Rajesh Kumar Gupta is operative ab initio. Pending trials must apply the corrected law, though past acquittals that have attained finality remain undisturbed.
3. Section 216 CrPC limited: The power to “alter or add” a charge cannot be used to delete charges or discharge the accused. Once charges are framed, the case must advance to acquittal or conviction.
4. Result: High Court orders affirming discharge and remand to Magistrate under the Drugs & Cosmetics Act (D&C Act) are set aside; both matters are remitted to the Special Judge (NDPS) for expeditious trial.

3. Analytical Discussion

3.1 Precedents Cited & Their Influence

• Hussain v. State of Kerala (2000), Ouseph v. State of Kerala (2004) & Ravindran (2007): held that buprenorphine/diazepam etc., though absent from Schedule I Rules, are still “psychotropic substances” triggering s. 8(c).
• Rajesh Kumar Gupta (2007): lone outlier limiting s. 8(c) to Schedule I Rules; expressly overruled by Sanjeev V. Deshpande (2014).
• Sanjeev V. Deshpande (Three‑Judge Bench): declared that Rules permit and regulate, they do not define or confine the substantive prohibition under s. 8(c).
• Procedural precedents on s. 216 CrPC: Sohan Lal (1990), Anant Prakash Sinha (2016), and K. Ravi (2024) – establish that s. 216 allows addition/alteration, not deletion/discharge.

3.2 Legal Reasoning in the Present Judgment

1. Textual & structural reading: s. 2(xxiii) defines “psychotropic substance” by reference to the Act’s Schedule; s. 8(c) prohibits dealing in any such substance, except for medical/scientific purposes in compliance with the Act/Rules/licences.
2. Object & Convention logic: The 1971 UN Convention and NDPS Act adopt a two‑tier system: Schedule I Rules substances are more strictly controlled, but all scheduled substances are controlled.
3. Retrospectivity rationale: Overruling merely recognises the “true” law; courts do not create ex post facto offences. No vested rights arise from a mistaken view in Rajesh Kumar Gupta. Article 20(1) is not offended because the conduct was always an offence under the Act.
4. s. 216 CrPC: The term “alter” implies variation of an existing charge; it does not empower deletion. Any post‑frame attempt to discharge must fail; trial must culminate in verdict.

3.3 Impact and Prospective Significance

4. Complex Concepts Simplified

5. Conclusion

The Supreme Court has delivered an authoritative pronouncement that eliminates the lingering ambiguity created by Rajesh Kumar Gupta. By holding that:

• all psychotropic substances under the Act’s Schedule attract the s. 8(c) prohibition,
• the 2014 precedent is retrospectively binding, and
• courts cannot clandestinely discharge an accused through s. 216 CrPC,

the judgment fortifies India’s narcotics‑control framework and restores doctrinal clarity. Future NDPS prosecutions involving prescription‑grade substances such as buprenorphine, diazepam, phenobarbitone, etc., will now proceed unhampered by jurisdictional doubts, and trial courts will be vigilant to keep trials on track once charges are framed.

Key Takeaway: The offence exists because the statute says so; rules only regulate. Misuse of prescription psychotropics is no longer able to hide in the inter‑schedule gap, and procedural ingenuity via s. 216 CrPC will not rescue the accused once a prima facie NDPS charge is framed.