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SUPREME COURT OF INDIA
DHANANJAYA Y CHANDRACHUD, M. R. SHAH, JJ.
Gurdev Singh - Appellant
Versus
State of Punjab - Respondent
Criminal Appeal No. 375 of 2021
Decided on : 06-04-2021
(A) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 21 and 32B – Seizure of Heroin – Conviction and sentence – 15 years R.I. and fine of Rs.2 Lakhs with default sentence awarded by Trial Court – Appellant-original accused was found to be in possession of 1 kg heroin which is four times more than minimum of commercial quantity – 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 – While considering request made on behalf of accused to award lesser punishment and to take lenient view while sentencing him, Special Court in fact has taken into consideration relevant facts/factors while not imposing maximum punishment of 20 years R.I. and awarding sentence of 15 years R.I. – As such, it cannot be said that Special Court has not at all applied its mind while awarding sentence – Submission on behalf of the accused that main supplier has not been apprehended/arrested and appellant is a carrier only cannot be a ground to interfere with sentence imposed by Special Court confirmed by High Court – In most of cases main supplier, who may be from outside country may not be apprehended and/or arrested – Once accused is found to be in illegal possession of narcotic substance/drugs, if in circumstances so warranted, can be awarded sentence higher than minimum prescribed/provided under the Act – Appellant-accused was found to be in possession of 1 kg heroin and he sold it to informant – He cannot be said to be a mere carrier – In given case, even a carrier who is having 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 sentence higher than minimum sentence provided under the Act. (Paras 6, 6.2, 6.3 and 6.4)
(B) Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 21 and 32B – Seizure of Heroin – Conviction and sentence – 15 years R.I. and fine of Rs.2 Lakhs with default sentence awarded by Trial Court – Organized activities of underworld and 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 public, particularly adolescents and students of both sexes and menace has assumed serious and alarming proportions in recent years – It has a deadly impact on society as a whole – While awarding sentence/punishment in case of NDPS Act, interest of society as a whole is also required to be taken in consideration – While striking balance between mitigating and aggravating circumstances, public interest, impact on society as a whole will always be tilt in favour of suitable higher punishment – Merely because accused is a poor man and/or a carrier and/or is a sole bread earner cannot be such mitigating circumstances in favour of accused while awarding sentence/punishment in case of NDPS Act – Even otherwise, in present case, Special Court, has taken into consideration submission on behalf of accused that he is a poor person; that he is sole bread earner, that it is his first offence, while not imposing maximum punishment of 20 years R.I and imposing punishment of 15 years R.I. only – Appeal dismissed. (Paras 7 and 8)
(C) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 32B – Quantum of sentence – While imposing punishment higher than minimum term of imprisonment or amount of fine, Court may take into account such factors as it may deem fit and also factors enumerated/mentioned in Section 32B of the Act – It cannot be said that while imposing a punishment higher than minimum term of imprisonment or amount of fine, Court has to consider only those factors which are mentioned/enumerated in Section 32B of Act – While considering statutory scheme mentioned in Section 32B of Act, where minimum term of punishment is prescribed, take into consideration such factors as it may deem fit for imposing a punishment higher than minimum term of imprisonment or fine and in addition take into account factors for imposing a punishment higher than minimum as enumerated in clauses (a) to (f) of Section 32B – Quantity of substance with which accused is charged is a relevant factor which can be taken into consideration while fixing quantum of punishment – Quantity of substance would fall into such factors as it may deem fit and while exercising its discretion of imposing sentence/imprisonment higher than minimum, if Court has taken into consideration such factor of larger/higher quantity of substance, it cannot be said that Court has committed error. (Paras 6 and 6.1)
Facts of the case:
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 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 Special Court convicting the accused for the offence punishable under Section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 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 present appeal.
Findings of Court:
Accused was found to be in possession of 1 kg heroin and the minimum commercial quantity is 250 gm. Therefore, accused was found to be in possession of 4 times higher than minimum commercial quantity and therefore, sentence imposed by 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.
Result : Appeal dismissed.
JUDGMENT :
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 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 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.
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.
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