Recently, the Supreme Court held that an accused is entitled to pre-arrest bail where the substance allegedly recovered Tapentadol Hydrochloride, is not listed as a psychotropic substance under the NDPS Act. The matter arose from an FIR registered under Sections 22 and 29 of the NDPS Act after recovery of 550 tablets from a vehicle. The Court notably observed that, “No contrary decision has been brought to our notice” regarding the non-inclusion of Tapentadol in the Act’s Schedule.
Brief Facts:
An FIR was registered on 16th September, 2024, at Police Station Lakho Ke Behram, District Ferozepur, Punjab, under Sections 22 and 29 of the NDPS Act. It was alleged that the police recovered 550 tablets of Tapentadol Hydrochloride from a car in which the appellant was present along with a co-accused, who owned the vehicle. The investigating authorities treated this recovery as possession of a psychotropic substance and implicated the appellant accordingly. Subsequently, the appellant approached the Punjab and Haryana High Court seeking anticipatory bail, which was dismissed by the High Court through its order dated 13th December, 2024, prompting the appellant to file an appeal before the Supreme Court.
Contention of the Appellant:
The counsel for the appellant argued that Tapentadol Hydrochloride is not included in the Schedule of psychotropic substances appended to the NDPS Act, and hence, possession of the same does not constitute an offence under Section 22 of the Act. To support this contention, he relied on decisions of the Madras High Court and the Bombay High Court, both of which had categorically held that Tapentadol is not a scheduled psychotropic substance under the NDPS Act. He further submitted that in the absence of any contrary precedent, the appellant could not be subjected to arrest under the provisions of the Act.
Observation of the Court:
The Court took note of the appellant’s submissions and carefully examined the legal status of Tapentadol Hydrochloride. It acknowledged that there is no mention of Tapentadol Hydrochloride in the Schedule of psychotropic substances under the NDPS Act. The Bench observed, "It is the claim of Mr. Sidhu that Tapentadol Hydrochloride tablet is not included in the list of psychotropic substances specified in the Schedule, appended to the NDPS Act.”
The Court further noted, “There are reported judgments of the High Courts holding that Tapentadol Hydrochloride is not a psychotropic substance, included in the Schedule of the NDPS Act.” Importantly, the Court emphasized, “No contrary decision has been brought to our notice.” In light of this legal position and absence of any contrary authority, the Court concluded that the appellant was entitled to the relief of pre-arrest bail.
The decision of the Court:
The Supreme Court allowed the appeal and set aside the judgment of the Punjab and Haryana High Court dated 13th December, 2024. It directed that, “In the event of the appellant being arrested, he shall be released on bail by the trial court on terms and conditions to be fixed by the trial court.” Accordingly, the appeal was allowed, and all pending applications were disposed of.
Case Title: Kulwant Singh vs. The State of Punjab
Citation: SLP (Crl.) No.1031/2025
Coram: Justice Dipankar Datta, Justice Manmohan
Advocate for Petitioner: Adv. Karandeep Singh Sidhu, Ruchi Gupta (AOR)
Advocate for Respondent: Adv. Baani Khanna (AOR)
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