2021 (4) TMI 286 - SC - Indian Laws

Smuggling - Heroin - sentence of 15 years R.I. with fine of ₹ 2 Lakhs and in default to undergo further one year R.I. - HELD THAT - 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 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 ₹ 1 lakh but which may extend to ₹ 2 lakhs. Section 32B of the Act provides for factors to be taken into account for imposing higher than the minimum punishment. 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. 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. 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 - 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 ₹ 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. 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 - Appeal dismissed.

Summary

Issues Involved:
1. Legality of the sentence imposed under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Consideration of factors under Section 32B of the Act for imposing a sentence higher than the minimum.
3. Mitigating and aggravating circumstances in sentencing.
4. Discretion of the court in imposing sentences higher than the minimum prescribed.

Detailed Analysis:

1. Legality of the Sentence Imposed Under Section 21 of the NDPS Act:
The appellant was convicted for the offence punishable under Section 21 of the NDPS Act and sentenced to 15 years rigorous imprisonment (R.I.) and a fine of ?2 Lakhs, with an additional one-year R.I. in case of default in payment of the fine. The appellant challenged the sentence, arguing that the minimum punishment under Section 21 is 10 years, and the courts did not provide reasons for imposing a higher sentence of 15 years.

2. Consideration of Factors Under Section 32B of the Act:
The appellant's counsel argued that the Special Court and the High Court failed to consider the factors mentioned in Section 32B of the Act while imposing a higher sentence. Section 32B allows courts to consider various factors, such as the use of violence, public office abuse, involvement of minors, commission in educational institutions, organized crime involvement, and other illegal activities, for imposing a higher punishment. The appellant contended that these factors were not considered, and no reasons were assigned for the higher sentence.

3. Mitigating and Aggravating Circumstances in Sentencing:
The appellant's counsel highlighted mitigating circumstances, including the appellant being a first-time convict, a poor person, and merely a carrier. The main supplier was not apprehended, and the appellant had no pending cases under the Act. The counsel argued that these mitigating circumstances outweighed the aggravating factors, such as the offence involving a commercial quantity of heroin (1 kg, which is four times the minimum commercial quantity).

4. Discretion of the Court in Imposing Sentences Higher than the Minimum Prescribed:
The respondent's counsel argued that the quantity of heroin (1 kg) justified a higher sentence. The court has the discretion to consider factors beyond those listed in Section 32B when imposing a higher sentence. The Supreme Court in Rafiq Qureshi's case held that the quantity of the substance is a relevant factor for determining the punishment. The court's discretion to consider such factors as it deems fit is not limited to those enumerated in Section 32B.

Court's Observations and Decision:

- The Supreme Court noted that the appellant was found in possession of 1 kg of heroin, which is four times the minimum commercial quantity (250 gm). The minimum sentence for commercial quantity under Section 21 of the Act is 10 years, which may extend to 20 years with a fine of ?1 lakh to ?2 lakhs.
- Section 32B of the Act allows the court to consider factors for imposing a higher punishment, but it also permits the court to take into account other relevant factors as it deems fit.
- The court emphasized that the quantity of the substance is a relevant factor for imposing a higher sentence. The discretion to impose a sentence higher than the minimum is not confined to the factors listed in Section 32B.
- The Special Court had considered the relevant facts and factors while not imposing the maximum punishment of 20 years R.I. and awarding a sentence of 15 years R.I.
- The court rejected the argument that the appellant being a carrier and the main supplier not being apprehended could be grounds for reducing the sentence. The appellant was found selling narcotic substances and was not merely a carrier.
- The court also highlighted the societal impact of narcotic drug offences, noting that such offences have a deadly impact on society, particularly on vulnerable young individuals. Public interest and the impact on society must be considered while balancing mitigating and aggravating circumstances.

Conclusion:
The Supreme Court found no substance in the appellant's arguments and upheld the sentence of 15 years R.I. with a fine of ?2 lakhs, confirming the decisions of the Special Court and the High Court. The appeal was dismissed.