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 3 punishment higher than the term of imprisonment or amount of fine.
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, as observed hereinabove, 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 Learned 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.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 375 OF 2021
GURDEV SINGH .. Appellant
Versus
STATE OF PUNJAB .. Respondent
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 28.11.2019 passed by the High Court of Punjab and
Haryana at Chandigarh in CRA-DB No.311 of 2018 by which the High
Court has dismissed the said appeal preferred by the appellant herein -
original accused and has confirmed the judgment and order of
conviction and sentence passed by the Learned Special Court
2
convicting the accused for the offence punishable under Section 21 of
the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter
to be referred to as ‘the Act”) and sentenced the accused to undergo 15
years R.I. and to pay a fine of Rs.2 Lakhs and in default of payment of
fine, to further undergo one year R.I., original accused has preferred the
present appeal.
2. At the outset, it is required to be noted that vide earlier order
dated 16.12.2020, this Court has refused to interfere with the conviction
of the appellant for an offence punishable under Section 21 of the Act
however, has issued notice confined to the question of sentence.
Therefore, in the present appeal the question of sentence of 15 years
R.I. with fine of Rs.2 Lakhs and in default to undergo further one year
R.I. only is required to be considered.
3. Learned Counsel appearing on behalf of the appellant has
vehemently submitted that the minimum punishment/sentence which is
provided in Section 21 of the Act is 10 years. It is submitted that 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
3
punishment higher than the term of imprisonment or amount of fine. It
is submitted that therefore, by imposing the punishment higher than the
minimum term of imprisonment i.e. in the present case 15 years R.I.,
the Court has to take into consideration the factors mentioned in
Section 32B of the Act and has to assign the reasons while imposing
the punishment higher than the minimum term of imprisonment. It is
submitted that in the present case while imposing a punishment of 15
years R.I. which is admittedly higher than the minimum term of
imprisonment of 10 years R.I., neither the Special Court nor the High
Court have assigned any reasons taking into account the factors
mentioned in Section 32B of the Act.
3.1 It is submitted that the appellant is the first time convict and is a
poor person and was only a carrier. It is further submitted by Learned
Counsel for the appellant – accused that in the present case the main
supplier of the narcotic substance has not been apprehended/arrested
and the appellant-accused being a carrier, sentence higher than the
minimum provided under the Act is not warranted. It is submitted that
factors contained in clauses (a) to (f) of Section 32B have not been
considered by the Learned Special Court while imposing a sentence
higher than the minimum sentence.
4
3.2 For the aforesaid, some of the observations made by this Court in
para 23 of the decision in the case of Rafiq Qureshi vs. Narcotic
Control Bureau, Eastern Zonal Unit, (2019) 6 SCC 492 has been
relied upon.
Learned Counsel appearing on behalf of the appellant – original
accused has further submitted that in the case of Rafiq Qureshi
(Supra), this Court has reduced the sentence of 16 years to 12 years in
a case where the accused was found to be in possession of narcotic
drugs which was much higher than the commercial quantity i.e. 609.6
gm, as per the analysis report.
3.3 Learned Counsel appearing on behalf of the appellant – accused
has further submitted that this Hon’ble Court has time and again held
that awarding of adequate sentence is a question of personal liberty
protected by Article 21 of the Constitution of India and there is a
requirement of giving due weightage to mitigating and aggravating
circumstances. Reliance is placed on the decisions of this Court in the
case of Soman vs. State of Kerala, (2013) 11 SCC 382 and State of
Haryana vs. Asha Devi, (2015) 8 SCC 39. It is submitted that in the
present case mitigating circumstances are that (i) appellant is a poor
man and only bread winner of the family; (ii) Trial Court found that the
5
appellant should be dealt with leniently while considering the question
of sentence; (iii) appellant was merely a carrier and the main accused
Malkit Singh was never arrested and in fact no fruitful efforts were made
to arrest him; (iv) the appellant is the first time convict under the Act and
there is no pending case against the appellant under the Act and no
special factors as stated in Section 32B (a) to (f) are present in the facts
and circumstances of the present case. It is submitted that against the
above mitigating circumstances, the aggravating circumstances are (i)
that the offence in respect to commercial quantity under the Act and (ii)
quantity of contraband recovered is four times the commercial quantity.
It is submitted that therefore the mitigating circumstances are more in
favour of the accused and therefore in the facts and circumstances of
the case the punishment/sentence higher than the minimum provided
under the Act is not warranted.
4. While opposing the present appeal, Learned Counsel appearing
on behalf of the Respondent – State has vehemently submitted that in
the facts and circumstances of the case neither the Learned Special
Court nor the High Court have committed any error in imposing the
punishment of 15 years R.I., which is higher than the minimum
sentence provided under the Act. It is submitted that in the present
6
case and as per the case of prosecution which has been established
and proved, the accused was selling the heroin. It is 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 of the commercial quantity. It is submitted that 250 gm is a
minimum commercial quantity and in the present case the accused was
found to be in possession of 1 kg of heroin which is four times
more/higher than the minimum commercial quantity provided under the
Act. It is submitted that even in the case of Rafiq Qureshi (Supra) it is
observed and held that the quantity of the narcotic substance recovered
may be a relevant factor to impose punishment higher than the
minimum and thus, quantity of substance with which accused is
charged is a relevant factor, which can be taken into consideration while
fixing quantum of punishment. It is further observed and held that a
decision to impose a punishment higher than the minimum is not
confined or limited to the factors as enumerated in clauses (a) to (f) of
Section 32B and the Court’s discretion to consider such factors as it
may deem fit is not taken away or tinkered. It is submitted that in the
aforesaid case though it was found that the court has not adverted to
the factors mentioned in clauses (a) to (f) of Section 32B of the Act,
7
considering the fact that quantity of manufactured drug being much
much higher than the minimum commercial quantity, this Court refused
to interfere with the order passed by the Learned Special Court and the
High Court imposing the sentence/imprisonment higher than the
minimum imprisonment mentioned in Section 21 of the Act. It is
submitted that in that case on facts the accused was found to be a
carrier and therefore, this Court reduced the imprisonment from 16
years to 12 years R.I. It is submitted that in the present case the
accused was found to be in possession of huge quantity of heroin i.e. 1
kg and was found to be selling narcotic substance/drugs, the
sentence/imprisonment imposed by the Learned Trial Court confirmed
by the High Court of 15 years R.I. with fine of Rs.2 Lakhs is not required
to be interfered with.
5. Heard the Learned Counsel for the respective parties at length.
6. As observed hereinabove, in the present case the appellant –
original accused was found to be in possession of 1 kg heroin which is
four times more than the minimum of commercial quantity. 250 gm and
above of Narcotic substance/drug is a commercial quantity as per the
NDPS Act. The minimum sentence provided under Section 21 of the
Act is 10 years R.I. So far as the commercial quantity is concerned, it
8
may be upto 20 years R.I. Therefore, the minimum sentence for
commercial quantity shall not be less than 10 years, which may extend
to 20 years with fine which shall not be less than Rs.1 lakh but which
may extend to Rs.2 lakhs. Section 32B of the Act provides for factors to
be taken into account for imposing higher than the minimum
punishment. Section 32B of the Act reads as under:
“[32B. Factors to be taken into account for
imposing higher than the minimum punishment.—
Where a minimum term of imprisonment or
amount of fine is prescribed for any offence
committed under this Act, 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 or amount of fine, namely:—
(a) the use or threat of use of violence or arms by the
offender;
(b) the fact that the offender holds a public office and
that he has taken advantage of that office in
committing the offence;
(c) the fact that the minors are affected by the
offence or the minors are used for the
commission of an offence;
(d) the fact that the offence is committed in an
educational institution or social service facility or
in the immediate vicinity of such institution or
faculty or in other place to which school children
and students resort for educational, sports and
social activities;
(e) the fact that the offender belongs to organised
international or any other criminal group which is
involved in the commission of the offence; and (f)
the fact that the offender is involved in other
illegal activities facilitated by commission of the
offence.]”
9
Therefore, while imposing a punishment higher than the minimum
term of the imprisonment or an amount of fine, the Court may take into
account the factors enumerated in Section 32B of the Act referred to
hereinabove. However, it is required to be noted that 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, 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. Identical question came to be considered by this Court
in the case of Rafiq Qureshi (Supra). While considering the statutory
scheme mentioned in Section 32B of the Act, it is observed and held
that Court may, where minimum term of punishment is prescribed, take
into consideration “such factors as it may deem fit” for imposing a
10
punishment higher than the minimum term of imprisonment or fine and
in addition take into account the factors for imposing a punishment
higher than the minimum as enumerated in clauses (a) to (f) of Section
32B. It is further observed and held that quantity of the substance with
which accused is charged is a relevant factor, which can be taken into
consideration while fixing the quantum of punishment. In paragraph
15.1 to 16 and 18 it is observed and held as under:
“15.1 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;
15.2 In addition, take into account the factors for
imposing a punishment higher than the minimum as
enumerated in clause (a) to (f).
16. 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 Courts discretion to consider
such factors as it may deem fit is not taken away or
tinkered. In a 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 suppose 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
11
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.
… … …
18. The specific words used in Section 32B that Court
may, in addition to such factors as it may deem fit
clearly indicates that Courts 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”.
6.1 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
12
enumerated in Section 32B (a) to (f), the High Court has to only
consider whether “such factor” is a relevant factor or not.
6.2 Applying the aforesaid principles of law to the facts of the case on
hand, it is required to be considered whether in the facts and
circumstances of the case the sentence of 15 years R.I. with fine of
Rs.2 Lakhs imposed by the Learned Special Court and confirmed by
the High Court require interference by this Court? 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
has taken 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.
6.3 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
Learned 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
13
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.
6.4 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, as
observed hereinabove, 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 Learned 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.
14
7. Now so far as the submission on behalf of the accused 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 is concerned, at the outset, it is required to be
noted that 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-
15
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.
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
16
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
17
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.
8. In view of the above and for the reasons stated hereinabove,
there is no substance in the present appeal and the same deserves to
be dismissed and is accordingly dismissed.
………………………………………J.
[Dr Dhananjaya Y Chandrachud]
….………..………………………….J.
[M R Shah]
New Delhi,
April 6, 2021
