Narcotic Drugs and Psychotropic Substances Act, 1985 – ss.15(a), 16, 21(c), 31, 32B – Interpretation of s.32B – Appellant convicted and sentenced u/s.21(c) to suffer rigorous imprisonment for a term of 18 years – High Court while maintaining the conviction, reduced the sentence to 16 years rigorous imprisonment – In appeal by the appellant, Supreme Court issued notice limited to the quantum of the sentence – Held: 1985 Act enumerates different offences and provides for punishment – Various sections provide for different punishments – There are few provisions in which minimum and maximum punishment have been provided for, however, they do not indicate any legislative policy regarding sentencing – In the present case, conviction has been recorded u/s.21(c)– s.21(c) provides that rigorous imprisonment shall not be “less than ten years but which may extend to twenty years and shall also be liable to fine” – s.32B is brought in the statute to rationalise the sentencing structure – Clauses (a) to (f) in s.32B enumerate various factors for imposing a punishment higher than the minimum term of imprisonment – Statutory scheme indicates that the decision to impose a punishment higher than the minimum is not confined or limited to the factors enumerated in clauses (a) to (f) – Court’s discretion to consider such factors as it may deem fit is not taken away or tinkered – High Court held that since the actual quantity of Heroine which the appellant was found in possession of was 609.6gm, as against the alleged quantity of 8.175 Kg of Heroin, which is much higher than the commercial quantity, thus punishment higher than the minimum is justified – Judgment of the trial court and the High Court awarding the punishment higher than the minimum, upheld – However, in the facts and circumstances of the case including the fact that it was found by the High Court that the appellant was only a carrier, the ends of justice will be sub-served in reducing the sentence from 16 years to 12 years – Conviction of the appellant maintained – Sentenced to undergo 12 years rigorous imprisonment, with Rs. 2 lakh fine, in default of payment of which the appellant to further undergo simple imprisonment for six months – Sentencing – Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001.
Partly allowing the appeal, the Court
HELD: 1.1 The Narcotic Drugs and Psychotropic
Substances Act, 1985 enumerates different offences and provides for punishment. In the present case, conviction was recorded under Section 21(c). Section 32 was inserted by Act 9 of 2001 in the 1985 Act w.e.f 02.10.2001. A perusal of different provisions of Act, 1985 indicates that various sections provide for different punishments. Section 21(c) provides that rigorous imprisonment shall not be “less than ten years but which may extend to twenty years and shall also be liable to fine”. In various other sections the punishments are like Section 15(a) which may extend to one year or with fine as in Section 16 which may extend to ten years or with fine. Thus, there are few provisions in which minimum punishment and maximum punishment have been provided for. The different provisions, however, do not indicate any legislative policy regarding sentencing especially when there is minimum and maximum punishment is prescribed, how to peg the punishment. By Act 9 of 2001, Section 31 was substituted which provides that any person who has been convicted of the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit, any of the offences punishable under this Act is subsequently convicted of the offence shall be punished for the second and every subsequent offence with rigorous imprisonment for a term which may extend to one and one-half times of the maximum term of imprisonment. [Paras 8-10] [254-C; 255-A; G-H; 256-A-B]
1.2 The Statement of Objects and Reasons reveals that the Amendment Act has inserted provisions for rationalisation of the sentencing structure. Section 32B is a provision which is brought in the statute to rationalise the sentencing structure. Section 32B from clauses (a) to (f) enumerates various factors for imposing a punishment higher than the minimum term of imprisonment. The Court after conviction of an accused hears the accused and take into consideration different circumstances of the accused and offence for awarding the appropriate sentence. Section 32B uses the phrase “the court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment”. The above statutory scheme clearly indicates the following: (a) the court may where minimum term of punishment is prescribed take into consideration “such factors as it may deem fit” for imposing a punishment higher than the minimum term of imprisonment or fine; (b) in addition, take into account the factors for imposing a punishment higher than the minimum as enumerated in clause (a) to (f). [Paras 12, 14] [256-G-H; 257-A; C-F]
1.3 The statutory scheme indicates that the decision to impose a punishment higher than the minimum is not confined or limited to the factors enumerated in clauses (a) to (f). The Court’s discretion to consider such factors as it may deem fit is not taken away or tinkered. In case a person is found in possession of a manufactured drug whose quantity is equivalent to commercial quantity, the punishment as per Section 21(c) has to be not less than ten years which may extend to twenty years. But supposing the quantity of manufactured drug is 20 time of the commercial quantity, it may be a relevant factor to impose punishment higher than minimum. Thus, quantity of substance with which an accused is charged is a relevant factor, which can be taken into consideration while fixing quantum of the punishment. Clauses
(a) to (f) as enumerated in Section 32B do not enumerate any factor regarding quantity of substance as a factor for determining the punishment. In the event the Court takes into consideration the magnitude of quantity with regard to which an accused is convicted the said factor is relevant factor and the Court cannot be said to have committed an error when taking into consideration any such factor, higher than the minimum term of punishment is awarded. The specific words used in Section 32B that Court may, in addition to such factors as it may deem fit clearly indicates that Court’s discretion to take such factor as it may deem fit is not fettered by factors which are enumerated in clauses (a) to (f) of Section 32B.[Paras 15, 17] [257-F-H; 258-A-B; G]
1.4 Punishment awarded by the trial court of a sentence higher than the minimum relying on the quantity of substance cannot be faulted even though the Court had not adverted to the factors mentioned in clauses (a) to (b) as enumerated under Section 32B. However, when taking any factor into consideration other than the factors enumerated in Section 32B, (a) to (f), the Court imposes a punishment higher than the minimum sentence, it can be examined by higher Courts as to whether factor taken into consideration by the Court is a relevant factor or not. Thus, in a case where Court imposes a punishment higher than minimum relying on a irrelevant factor and no other factor as enumerated in Section 32B(a to f) are present, award of sentence higher than minimum can be interfered with. In the present case the High Court held that although gross quantity of 8.175 Kg. of Heroin was alleged to have been recovered from the appellant but actual quantity of Heroine which was found to be in possession was only 609.6 gm. The High Court held that since the appellant was found in possession of Narcotic Drugs as per the analysis report to 609.6 gm. which is much higher than the commercial quantity, punishment higher than the minimum is justified. The High Court reduced the punishment from 18 years to 16 years. The judgment of the trial court and the High Court awarding the punishment higher than the minimum is upheld, however, looking to all the facts and circumstances of the present case including the fact that it was found by the High Court that the appellant was only a carrier, the ends of justice will be sub-served in reducing the sentence from 16 years to 12 years. Thus, while maintaining the conviction of the appellant, the appellant is sentenced to undergo 12 years rigorous imprisonment with fine of Rs. 2 lakh and in default of payment of such fine the appellant shall further undergo for a simple imprisonment for six months. [Paras 22, 23] [261-A-F]
Sakshi v. Union of India and others (2004) 5 SCC
518 : [2004] 2 Suppl. SCR 723 – relied on.
Ram Asre v. State of U.P Decision of Allahabad High Court on 14.12.2017 in Jail Appeal No. 894 of 2015 ; Krishna Murari Pal v. State of U.P Decision of Allahabad High Court in Criminal Appeal No.4301 of 2008 – approved.
Raj Kumar Vajpayee v. State of U.P. (2016) 95 ACRC
896 (Allahabad High Court) – 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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