IMPORTANT POINT
When the volume of contraband articles recovered from the possession of accused is enormous, the age of accused s father, his family problems and more importantly he being not a habitual offender , are meaningless considerations while imposing sentence.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 9A/25A and 9A/25A rw/s 29-Conviction for offences under-Sentence-Legality, desirability and propriety of reducing sentence by High Court-Accused was found in possession of 44 containers containing 880 litres of Acitic N Hydride, kept under the chaff of wheat-When licence in respect of keeping and bringing Acitic N Hydride was demanded from the accused, same was not produced-Trial Court on convicting the accused imposed sentence of 10 years imprisonment on each of the convictions and fine of Rs. 1,00,000/- on each ground-High Court sustaining his conviction reduced sentence to period of custody undergone which was 6 1/2 years-Fine was reduced to Rs. 25,000/- on each count-Appeal against-High Court took into consideration that father of accused was a person of 85 years of age and mother had expired four months earlier and there was no other earning member and that the accused was not a habitual offender-Whether reduction of sentence considering these factors was justified-(No)-Such considerations held meaningless in cases of durg trafficker and smuggler.
       Held : When a statute gives a judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discreet. (Para 25)
       The discretion does not appear to have been judiciously and judicially exercised by the High Court in this case. When the volume of contraband articles is taken note of, it is sufficient for a conclusion that the quantity of finished product out of it which would have been extracted it would have been nearly 300 kilograms of heroine, and the accused would have got about forty kilograms as admitted by him. The disastrous effect (of this quantity of heroine) would be mind-boggling. The High Court seems to have been swayed by the age of accused s father, his family problems and more importantly he being not a "habitual offender". Such considerations are really meaningless when one considers the fact that the accused was in possession of contrabands which would have destroyed the health and mental equilibrium of thousands of people. The Court was not dealing with an accused charged with commission of any minor offence where he being not a habitual offender may have some relevance. But it is really inconsequential for a drug trafficker and smuggler. The reasons given by the High Court to reduce the sentence, according to us, have no foundation. The inevitable conclusion is that the appeal deserves to be allowed which we direct. To put it differently, the sentence imposed by the trial Court is restored. (Para 26)
       (ii) Words and Phrases-Word discretion -Meaning-In its ordinary meaning, the word discretion signifies unrestrained exercise of choice or will-It is the discrenment of what is right and proper-Word in itself implies vigilant circumspection and case-Where legislature concedes discretion it also imposes a heavy responsibility. (Paras 21 to 25)

JUDGMENT

Arijit Pasayat, J.-Leave granted.

2. The Union of India questions legality, desirability and proprietary of reducing sentence after conviction as done by the Rajasthan High Court in the impugned judgment. The respondent was found guilty of offences punishable under Section 9A/25A and 9A/25A read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985( in short the Act ).

3. Factual background which led to trial of the respondent is essentially as follows:

Shri R.P. Sharma, Director of Narcotics Control Bureau, Jodhpur received a confidential information on telephone in the night dated 12.12.1995 about illicit transactions of Acitic N Hydride and on the basis of it he constituted a team of officers of the Department vide order Exb. P-1 and the team alongwith the Director, Narcotics Control Bureau, Jodhpur started for Sri Ganganagar at 21.00 hours. Dr. R.P. Sharma informed officers of the team that one thousand litre Acitic N Hydride has been reportedly concealed in a Kachha Kotha (unripe-room) constructed in the field situated on the way of village Bhagasar Aborlya and village Chak Maharajka or in the nearby area. B.S. Vasistha (PW-1) was appointed as the seizing officer and he was ordered to execute the proceedings. In compliance thereof he reached on the site on 13.12.95 at about 6.30 hours, called independent witnesses Tiku Ram and Sakata Ram and made inquiries about the Kotha constructed in the field situated on the way of Bhagasar and Chak Maharajka village. He came to know that the Kotha belongs to accused-respondent Kuldeep Singh and the agriculture field has been given to one Fateh Mohammad for cultivation, whereupon Fateh Mohammad was called and interrogated. He infromed that the Kotha belongs to accused-Kuldeep Singh. Thereupon Kuldeep Singh was called from his house and the closed Kotha was opened by the accused wherein forty four plastic containers kept under the chaff of wheat were found. Out of them 43 containers were of black colour and one was of white colour. When the licence in respect of keeping and bringing Acitic N Hydride was demanded from the accused, same was not produced. In the presence of Panchas and Kuldeep Singh, B.S. Vasistha divided 44 containers in two-two batches and marked them separately, which on weighing came to 880 litres of Acitic N Hydride. Two samples from each of the lots were taken in glass bottles and marks were made thereon and the remaining materials were seized separately and sealed. On the seal labels affixed on each container signatures of accused-Kuldeep Singh and the panch witnesses were obtained. The accused was given notice in respect of recording his statement, which was recorded, and he was arrested. The material was kept in Kotwali. Ganganagar for safety. The seized samples and the material articles were deposited in the malkhana of the Narcotics Control Bureau, Jodhpur. The report under Section 57 was forwarded to the higher authorities. The samples were sent for examination. The search of accused s house was conducted on 24.11.95 wherein on diary and one inland letter were found and seized. Therefrom it appeared that the other accused persons Major Singh and Jagtar Singh had relations with him and they were participants in this conspiracy. Information was sent to the higher authorities. The recovered article was found to be Actic N Hydride from the report of Revenue Control Laboratory. After investigation the challan was filed against the accused under Section 9A read with Section 25A and Section 29 of the Act. The charges under Sections 9A/25A and Section 9A/25A read with Section 29 of the Act were framed, read over and explained to accused-Kuldeep Singh, who denied the charge and claimed trial Evidence of ten witnesses were recorded and the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 (in short the Code ). He was convicted and sentenced as noted supra.

4. In the appeal filed before the High C

Click Here to Read the rest of this document

2003 Supreme(SC) 1227

IMPORTANT POINTWhen the volume of contraband articles recovered from the possession of accused is enormous, the age of accused s father, his family problems and more importantly he being not a habitual offender , are meaningless considerations while imposing sentence.

Cases Referred (4)

IMPORTANT POINT
When the volume of contraband articles recovered from the possession of accused is enormous, the age of accused s father, his family problems and more importantly he being not a habitual offender , are meaningless considerations while imposing sentence.