Manoj Parihar v. State of Jammu and Kashmir, (2022) 14 SCC 72 opined, Doctrine of Prospective Overruling must be exercised in explicit terms and therefore, law declared by this Court would have a retrospective effect unless stated otherwise. It would not be an absolute rule, prospective overruling or prospective operation of a decision must be declared only by Bench which has rendered decision in question. Three-Judge Bench in Jarnail Singh v. Lachhmi Narain Gupta, (2022) 10 SCC 595 declared decision of Five-Judge Constitution Bench in M. Nagaraj v. Union of India, (2006) 8 SCC 212 to have prospective operation.

Somaiya Organics (India) Ltd. v. State of U.P., (2001) 5 SCC 519 clarified, application of Doctrine of Prospective Overruling would not have effect of validating an invalid law. Court does not make legal something that is illegal by invoking Doctrine of Prospective Overruling.

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It can be said, substances under Schedule I to The Narcotic Drugs and Psychotropic Substances Rules, 1985 are more strictly restricted compared to remaining psychotropic substances under Schedule to The Narcotic Drugs and Psychotropic Substances Act, 1985 which are restricted more moderately in comparison. Herein, controversy is, whether dealing in psychotropic substances which are mentioned under Schedule to NDPS Act and not under Schedule I of NDPS Rules would constitute an offence under Section 8 of NDPS Act or not. State of Uttaranchal v. Rajesh Kumar Gupta, (2007) 1 SCC 355 answered in negative. Union of India v. Sanjeev V. Deshpande, (2014) 13 SCC 1 answered affirmatively and overruled Rajesh Kumar Gupta.

Court in Sanjeev V. Deshpande, perhaps, did not think fit to confine or restrict its interpretation of Section 8 of NDPS Act to future cases only. It deliberately chose not to discuss Doctrine of Prospective Overruling let alone resort to it. We see no reason why we should deviate from default rule of retrospectivity. Sanjeev V. Deshpande overruling Rajesh Kumar Gupta would have retrospective effect. It cannot be said, existence of offence under Section 8 of NDPS Act, as construed in Sanjeev V. Deshpande, was undeniably absent and was ‘created’. It would be a grave error to assume, law was ever otherwise.

However, with a view to do complete justice, we declare, matters, in which trial has already concluded on basis of incorrect exposition of law and have attained finality, would not be disturbed. Having said so, any and all pending matters would be adjudged on basis of correct interpretation of law as declared in Sanjeev V. Deshpande.

If accused before us were acquitted by respective Trial Courts due to interpretation given in Rajesh Kumar Gupta, we could have held them ‘technically guilty’ of offence under Section 8 of NDPS Act. This concept of ‘technical guilt’ found mention in *Food Inspector, Calicut Corporation v. Cherukattil Gopalan, (1971) 2 SCC 322*. But, accused before us were not acquitted but discharged due to Rajesh Kumar Gupta. Therefore, there arises no occasion for us to hold them ‘technically guilty’. At this juncture, obvious next step would be trial for all accused before us.

– Hon’ble Justice J.B. Pardiwala, Directorate of Revenue Intelligence v. Raj Kumar Arora, [Criminal Appeal No. 1319 of 2013].