The Supreme Court recently comprising of a bench of Justices DY Chandrachud and MR Shah observed that quantity of narcotic substance recovered is a relevant factor that can be taken into account for imposing higher than the minimum punishment under the Narcotic Drugs and Psychotropic Substances Act, 1985. (Gurdev Singh vs. State of Punjab)
The bench observed that the Court has a wide discretion to impose the sentence/imprisonment ranging between 10 years to 20 years and while imposing such sentence/imprisonment in addition, the Court may also take into consideration factor as it may deem fit other than the factors enumerated in Section 32B (a) to (f) of the Act.
Facts of the Case
- The accused, Gurdev Singh was convicted by the Special for having found him to be in possession of 1 kg heroin, which he was selling. It is four times more than the minimum of commercial quantity, which has been prescribed in the Act as 250 gm.
- The accused was convicted under the provisions of Section 21 of the Narcotic Drug and Psychotropic Substances Act, 1985 and sentenced him to a rigorous imprisonment for a term of 15 years R.I. and a fine of Rs.2 lakh. In default of the payment of such fine, the convict is to further undergo a Rigorous Imprisonment for a term of one year, in lieu of such fine.
- The aggrieved party approached the High Court for reduction of his sentence, which the High Court dismissed.
- The accused then approached the Apex court and appealed to it for justice on his part.
Contention of the Parties
Counsel for the appellant has submitted that the minimum punishment provided in Section 21 of the NDPS Act is 10 years.
The counsel averred, “As per Section 32B of the Act where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under the Act, the Court may in addition to such factors, as it may deem fit, take into account the factors which are mentioned in Section 32B for imposing a punishment higher than the term of imprisonment or amount of fine”.
In the facts of the present case, neither the Special Court nor the High Court have assigned any reasons taking into account the factors mentioned in Section 32B of the Act.
It was further submitted by the Counsel that the appellant was a first time convict and is a poor person and was only a carrier.
He placed reliance on the judgment of Rafiq Qureshi v. Narcotic Control Bureau, (2019) 6 SCC 492.
Opposing the petition, learned counsel for the Respondent State submitted that the accused was found to be in possession of 1 kg heroin which is much higher than the commercial quantity and four times greater than the minimum commercial quantity under the Act. Against the reliance placed on the precedent by the Appellant, it was added that even in the case of Rafiq Qureshi, it was observed that the quantity of narcotic substance recovered may be a relevant factor to impose punishment higher than the minimum.
Courts Observation & Judgment
The bench answering the appellant’s contention, referred to Section 32B of the Act provides for factors to be taken into account for imposing higher than the minimum punishment. The court noted that the Section 32B of the Act itself further provides that the Court may, in addition to such factors as it may deem fit, take into account the factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine as mentioned in Section 32B of the Act.
The Bench referring to the judgment in Rafiq Qureshi vs. Narcotic Control Bureau, Eastern Zonal Unit, (2019) 6 SCC 492, observed,
"Therefore, while imposing the punishment higher than the minimum term of imprisonment or amount of fine, the Court may take into account such factors as it may deem fit and also the factors enumerated/mentioned in Section 32B of the Act. Therefore, on fair reading of Section 32B of the Act, it cannot be said that while imposing a punishment higher than the minimum term of imprisonment or amount of fine, the Court has to consider only those factors which are mentioned/enumerated in Section 32B of the Act..."
"Therefore, quantity of substance would fall into "such factors as it may deem fit" and while exercising its discretion of imposing the sentence/imprisonment higher than the minimum, if the Court has taken into consideration such factor of larger/higher quantity of substance, it cannot be said that the Court has committed an error. The Court has a wide discretion to impose the sentence/imprisonment ranging between 10 years to 20 years and while imposing such sentence/imprisonment in addition, the Court may also take into consideration other factors as enumerated in Section 32B (a) to (f). Therefore, while imposing a punishment higher than the minimum sentence, if the Court has considered such factor as it may deem fit other than the factors enumerated in Section 32B (a) to (f), the High Court has to only consider whether "such factor" is a relevant factor or not"
In the present case, the court noted that, the accused was found to be in possession of 4 times higher than the minimum commercial quantity.
The bench said, "Therefore, the sentence imposed by the Special Court imposing the sentence of 15 years R.I. with fine of Rs.2 lakhs, confirmed by the High Court is not required to be interfered with by this Court. It cannot be said that while imposing such punishment the Court has taken into consideration any irrelevant factors".
The bench also considered the the submission on behalf of the accused on mitigating and aggravating circumstances and the request to take lenient view and not to impose the punishment higher than the minimum sentence provided under the Act.
The bench while dismissing the appeal observed,
It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims who are vulnerable; it cause deleterious effects and deadly impact on the society; they are hazard to the society. Organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances shall lay to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, it has a deadly impact on the society as a whole. Therefore, while awarding the sentence/punishment in case of NDPS Act, the interest of the society as a whole is also required to be taken in consideration. Therefore, while striking balance between the mitigating and aggravating circumstances, public interest, impact on the society as a whole will always be tilt in favour of the suitable higher punishment. Therefore, merely because the accused is a poor man and/or a carrier and/or is a sole bread earner cannot be such mitigating circumstances in favour of the accused while awarding the sentence/punishment in the case of NDPS Act. Even otherwise, in the present case, the Special Court, as observed hereinabove has taken into consideration the submission on behalf of the accused that he is a poor person; that he is sole bread earner, that it is his first offence, while not imposing the maximum punishment of 20 years R.I and imposing the punishment of 15 years R.I. only.
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