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TMI Blog2021 (4) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted, 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 ₹ 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. 7. Now so far as the submission on behalf of the accused tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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