Sentence/Sentencing: Conviction of appellant-accused under s.21 of NDPS Act – He was found to be in possession of 1 kg heroin which is four times more than the minimum of commercial quantity – As per NDPS Act, 250 gm and above of Narcotic substance/drug is a commercial quantity – The minimum sentence provided under s.21 of the NDPS Act is 10 years R.I. – So far as the commercial quantity is concerned, it may be upto 20 years R.I. – Appellant was sentenced to 15 years R.I. with fine of Rs.2 lakhs – Plea of appellant that while imposing punishment of 15 years R.I. which is higher than the minimum term of imprisonment of 10 years R.I. neither the Special Court nor High Court assigned any reasons taking into account the factors mentioned in s.32B of the NDPS Act – Held: Appellantaccused was found to be in possession of 1 kg heroin and he sold it to the informant – Therefore, he cannot be said to be a mere carrier – In given case, even a carrier who is having the knowledge that he is carrying with him narcotic substance/drugs and is found to be with huge commercial quantity of narcotic substance/drugs can be awarded the sentence higher than the minimum sentence provided under the Act – Therefore, the sentence imposed by the Special Court of 15 years R.I. with fine of Rs.2 lakhs, confirmed by the High Court is not required to be interfered with – It cannot be said that while imposing such punishment the Court took into consideration any irrelevant factors – Narcotic Drugs and Psychotropic Substances Act, 1985 – s.32B.
Sentence/Sentencing: Mitigating circumstances – Offence of drug trafficking – 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 case of NDPS Act – 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 – Narcotic Drugs and Psychotropic Substances Act, 1985.
Narcotic Drugs and Psychotropic Substances Act, 1985: s.32B – Relevant factors for imposing punishment higher than the minimum terms of imprisonment – Held: 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 s.32B of the Act – The 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 s.32B (a) to (f) – In the instant case, while considering the request made on behalf of the accused to award lesser punishment and to take lenient view while sentencing him, the Special Court in fact took into consideration the relevant facts/factors while not imposing the maximum punishment of 20 years R.I. and awarding the sentence of 15 years R.I. – Therefore, as such, it cannot be said that the Special Court did not at all apply its mind while awarding the sentence.
Dismissing the appeal, the Court
HELD : 1. Section 32B of the NDPS Act provides for factors to be taken into account for imposing higher than the minimum punishment. 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. 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, 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. [Para 6][448-B-C, G-H; 449-A-C]
2. The 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. While considering the request made on behalf of the accused to award lesser punishment and to take lenient view while sentencing him, the Special Court in fact took into consideration the relevant facts/factors while not imposing the maximum punishment of 20 years R.I. and awarding the sentence of 15 years R.I. Therefore, as such, it cannot be said that the Special Court has not at all applied its mind while awarding the sentence. [Paras 6.1 and 6.2][450-D-H; 451-A-B]
3. Submission on behalf of the accused that the main supplier has not been apprehended/arrested and the appellant is a carrier only cannot be a ground to interfere with the sentence imposed by the Special Court confirmed by the High Court. In most of the cases the main supplier, who may be from outside country may not be apprehended and/or arrested. Once the accused is found to be in illegal possession of the narcotic substance/drugs, if in the circumstances so warranted, can be awarded the sentence higher than the minimum prescribed/provided under the Act. In the present case the appellant - accused was found to be in possession of 1 kg heroin and he sold it to the informant. Therefore, he cannot be said to be a mere carrier. In given case, even a carrier who is having the knowledge that he is carrying with him narcotic substance/drugs and is found to be with huge commercial quantity of narcotic substance/drugs can be awarded the sentence higher than the minimum sentence provided under the Act. In the present case, the accused was found to be in possession of 1 kg heroin and the minimum commercial quantity is 250 gm. Therefore, the accused was found to be in possession of 4 times higher than the minimum commercial quantity and 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. [Paras 6.3, 6.4][451-B-F]
4. The submission on behalf of the accused was that awarding of adequate sentence is question of personal liberty protected by Article 21 of the Constitution of India and there is requirement of giving due weightage to the mitigating and aggravating circumstances and in the present case the mitigating circumstances in favour of the accused are more than the aggravating circumstances and therefore the punishment higher than the minimum provided under the Act is not justified and/or warranted. The appellant is held to be guilty for the offence under Section 21 of the Act and found to be in possession of 1 kg heroin which is four times more/higher than the commercial quantity. At this stage, the statement of objects and reasons for enactment of NDPS Act are required to be referred to. Before the NDPS Act 1965 was enacted, the statutory control over narcotic drugs was exercised in India through number of Central and State enactments viz. — The Opium Act, 1857, (b) the Opium Act, 1878 and (c) The Dangerous Drugs Act, 1930. However, with the passage of time and developments in the field of illicit drug traffic and drug abuse at national and international level it was noticed and found that (i) The scheme of penalties under the aforesaid ACTS was not sufficiently deterrent to meet the challenge of well-organized gangs of smugglers; (ii) The country has for the last few years been increasingly facing the problem of transit traffic of drugs coming mainly from the neighboring countries and destined mainly to Western countries; (iii) During recent years new drugs of addiction which have come to be known as psychotropic substances have appeared on the scene and posed serious problems to national governments. Therefore with a view to overcome the aforestated deficiencies the NDPS Act, 1985 came to be enacted. That thereafter to check the menace of dangerous drugs flooding the market, Section 37 of the Act came to be amended and it has been provided that the accused of an offence under the Act shall not be released on bail during trial unless the mandatory conditions provided in Section 37 are satisfied. [Para 7][451-F-H; 452-A-E]
6. While considering 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 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 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. [Para 7] [452-E-H; 453-A-C]
Rafiq Qureshi v. Narcotic Control Bureau, Eastern Zonal Unit (2019) 6 SCC 492 : [2019] 7 SCR 248; Soman v. State of Kerala (2013) 11 SCC 382 : [2012]
11 SCR 1155; State of Haryana v. Asha Devi (2015) 8 SCC 39 : [2015] 6 SCR 348 - referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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