GURDEV SINGH versus STATE OF PUNJAB on 6 April 2021

[2021] 4 S.C.R. 439

GURDEV SINGH

v.

STATE OF PUNJAB

(Criminal Appeal No. 375 of 2021)

APRIL 06, 2021

[DR. DHANANJAYA Y CHANDRACHUD AND

M. R. SHAH, JJ.]

Sentence/Sentencing: Conviction of appellant-accused unders.21 of NDPS Act – He was found to be in possession of 1 kg heroinwhich is four times more than the minimum of commercial quantity –As per NDPS Act, 250 gm and above of Narcotic substance/drug isa commercial quantity – The minimum sentence provided under s.21of the NDPS Act is 10 years R.I. – So far as the commercial quantityis concerned, it may be upto 20 years R.I. – Appellant was sentencedto 15 years R.I. with fine of Rs.2 lakhs – Plea of appellant thatwhile imposing punishment of 15 years R.I. which is higher thanthe minimum term of imprisonment of 10 years R.I. neither the SpecialCourt nor High Court assigned any reasons taking into accountthe factors mentioned in s.32B of the NDPS Act – Held: Appellant-accused was found to be in possession of 1 kg heroin and he sold itto the informant – Therefore, he cannot be said to be a mere carrier– In given case, even a carrier who is having the knowledge that heis carrying with him narcotic substance/drugs and is found to bewith huge commercial quantity of narcotic substance/drugs can beawarded the sentence higher than the minimum sentence providedunder the Act – Therefore, the sentence imposed by the Special Courtof 15 years R.I. with fine of Rs.2 lakhs, confirmed by the HighCourt is not required to be interfered with – It cannot be said thatwhile imposing such punishment the Court took into considerationany irrelevant factors – Narcotic Drugs and Psychotropic SubstancesAct, 1985 – s.32B.

Sentence/Sentencing: Mitigating circumstances – Offence ofdrug trafficking – Merely because the accused is a poor man and/or a carrier and/or is a sole bread earner cannot be such mitigatingcircumstances in favour of the accused while awarding the sentence/punishment in case of NDPS Act – While awarding the sentence/

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Apunishment in case of NDPS Act, the interest of the society as awhole is also required to be taken in consideration – Narcotic Drugsand Psychotropic Substances Act, 1985.

Narcotic Drugs and Psychotropic Substances Act, 1985: s.32B– Relevant factors for imposing punishment higher than the minimumBterms of imprisonment – Held: While imposing the punishment higherthan the minimum term of imprisonment or amount of fine, the Courtmay take into account such factors as it may deem fit and also thefactors enumerated/mentioned in s.32B of the Act – The quantity ofsubstance would fall into “such factors as it may deem fit” andwhile exercising its discretion of imposing the sentence/imprisonmentChigher than the minimum, if the Court has taken into considerationsuch factor of larger/higher quantity of substance, it cannot besaid that the Court has committed an error – The Court has a widediscretion to impose the sentence/imprisonment ranging between10 years to 20 years and while imposing such sentence/imprisonmentDin addition, the Court may also take into consideration other factorsas enumerated in s.32B (a) to (f) – In the instant case, whileconsidering the request made on behalf of the accused to awardlesser punishment and to take lenient view while sentencing him,the Special Court in fact took into consideration the relevant facts/factors while not imposing the maximum punishment of 20 yearsER.I. and awarding the sentence of 15 years R.I. – Therefore, assuch, it cannot be said that the Special Court did not at all apply itsmind while awarding the sentence.

Dismissing the appeal, the Court

Dismissing the appeal, the Court

FHELD : 1. Section 32B of the NDPS Act provides for factorsto be taken into account for imposing higher than the minimumpunishment. Section 32B of the Act itself further provides thatthe Court may, in addition to such factors as it may deem fit, takeinto account the factors for imposing a punishment higher thanthe minimum term of imprisonment or amount of fine as mentionedGin Section 32B of the Act. Therefore, while imposing thepunishment higher than the minimum term of imprisonment oramount of fine, the Court may take into account such factors as itmay deem fit and also the factors enumerated/mentioned in H

Section 32B of the Act. Therefore, it cannot be said that whileimposing a punishment higher than the minimum term ofimprisonment or amount of fine, the Court has to consider onlythose factors which are mentioned/enumerated in Section 32B ofthe Act. [Para 6][448-B-C, G-H; 449-A-C]

2. The quantity of substance would fall into “such factorsas it may deem fit” and while exercising its discretion of imposingthe sentence/imprisonment higher than the minimum, if the Courthas taken into consideration such factor of larger/higher quantityof substance, it cannot be said that the Court has committed anerror. The Court has a wide discretion to impose the sentence/imprisonment ranging between 10 years to 20 years and whileimposing such sentence/imprisonment in addition, the Court mayalso take into consideration other factors as enumerated inSection 32B (a) to (f). Therefore, while imposing a punishmenthigher than the minimum sentence, if the Court has consideredsuch factor as it may deem fit other than the factors enumeratedin Section 32B (a) to (f), the High Court has to only considerwhether “such factor” is a relevant factor or not. Whileconsidering the request made on behalf of the accused to awardlesser punishment and to take lenient view while sentencing him,the Special Court in fact took into consideration the relevant facts/factors while not imposing the maximum punishment of 20 yearsR.I. and awarding the sentence of 15 years R.I. Therefore,as such, it cannot be said that the Special Court has not at allapplied its mind while awarding the sentence. [Paras 6.1 and6.2][450-D-H; 451-A-B]

3. Submission on behalf of the accused that the main supplierhas not been apprehended/arrested and the appellant is a carrieronly cannot be a ground to interfere with the sentence imposedby the Special Court confirmed by the High Court. In most of thecases the main supplier, who may be from outside country maynot be apprehended and/or arrested. Once the accused is foundto be in illegal possession of the narcotic substance/drugs, if inthe circumstances so warranted, can be awarded the sentencehigher than the minimum prescribed/provided under the Act. Inthe present case the appellant - accused was found to be in A

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Apossession 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 carryingwith him narcotic substance/drugs and is found to be with hugecommercial quantity of narcotic substance/drugs can be awardedthe sentence higher than the minimum sentence provided underBthe Act. In the present case, the accused was found to be inpossession of 1 kg heroin and the minimum commercial quantityis 250 gm. Therefore, the accused was found to be in possessionof 4 times higher than the minimum commercial quantity andtherefore, the sentence imposed by the Special Court imposingCthe sentence of 15 years R.I. with fine of Rs.2 lakhs, confirmedby the High Court is not required to be interfered with by thisCourt. It cannot be said that while imposing such punishmentthe Court has taken into consideration any irrelevant factors.[Paras 6.3, 6.4][451-B-F]

D4. The submission on behalf of the accused was thatawarding of adequate sentence is question of personal libertyprotected by Article 21 of the Constitution of India and there isrequirement of giving due weightage to the mitigating andaggravating circumstances and in the present case the mitigatingcircumstances in favour of the accused are more than theEaggravating circumstances and therefore the punishment higherthan the minimum provided under the Act is not justified and/orwarranted. The appellant is held to be guilty for the offence underSection 21 of the Act and found to be in possession of 1 kg heroinwhich is four times more/higher than the commercial quantity. AtFthis stage, the statement of objects and reasons for enactment ofNDPS Act are required to be referred to. Before the NDPS Act1965 was enacted, the statutory control over narcotic drugs wasexercised in India through number of Central and Stateenactments viz. — The Opium Act, 1857, (b) the Opium Act,1878 and (c) The Dangerous Drugs Act, 1930. However, with theGpassage of time and developments in the field of illicit drug trafficand drug abuse at national and international level it was noticedand found that (i) The scheme of penalties under the aforesaidACTS was not sufficiently deterrent to meet the challenge of well- H

organized gangs of smugglers; (ii) The country has for the lastfew years been increasingly facing the problem of transit trafficof drugs coming mainly from the neighboring countries anddestined mainly to Western countries; (iii) During recent yearsnew drugs of addiction which have come to be known aspsychotropic substances have appeared on the scene and posedserious problems to national governments. Therefore with a viewto overcome the aforestated deficiencies the NDPS Act, 1985came to be enacted. That thereafter to check the menace ofdangerous drugs flooding the market, Section 37 of the Act cameto be amended and it has been provided that the accused of anoffence under the Act shall not be released on bail during trialunless the mandatory conditions provided in Section 37 aresatisfied. [Para 7][451-F-H; 452-A-E]

6. While considering the submission on behalf of the accusedon mitigating and aggravating circumstances and the request totake lenient view and not to impose the punishment higher thanthe minimum sentence provided under the Act it should be bornein mind that in a murder case, the accused commits murder ofone or two persons, while those persons who are dealing innarcotic drugs are instruments in causing death or in inflictingdeath blow to number of innocent young victims who arevulnerable; it cause deleterious effects and deadly impact on thesociety; they are hazard to the society. Organized activities ofthe underworld and the clandestine smuggling of narcotic drugsand psychotropic substances into this country and illegaltrafficking in such drugs and substances shall lay to drug addictionamong a sizeable section of the public, particularly the adolescentsand students of both sexes and the menace has assumed seriousand alarming proportions in the recent years. Therefore, it has adeadly impact on the society as a whole. Therefore, while awardingthe sentence/punishment in case of NDPS Act, the interest ofthe society as a whole is also required to be taken in consideration.Therefore, while striking balance between the mitigating andaggravating circumstances, public interest, impact on the societyas a whole will always be tilt in favour of the suitable higherpunishment. Therefore, merely because the accused is a poor AB

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Aman and/or a carrier and/or is a sole bread earner cannot be suchmitigating circumstances in favour of the accused while awardingthe sentence/punishment in the case of NDPS Act. Even otherwise,in the present case, the Special Court has taken into considerationthe submission on behalf of the accused that he is a poor person;that he is sole bread earner, that it is his first offence, whileBnot imposing the maximum punishment of 20 years R.Iand imposing the punishment of 15 years R.I. only. [Para 7][452-E-H; 453-A-C]

Rafiq Qureshi v. Narcotic Control Bureau, Eastern ZonalUnit (2019) 6 SCC 492 : [2019] 7 SCR 248; Soman v.CState of Kerala (2013) 11 SCC 382 : [2012]11 SCR 1155; State of Haryana v. Asha Devi (2015) 8SCC 39 : [2015] 6 SCR 348 - referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 375 of 2021.E

From the Judgment and Order dated 28.11.2019 of the High Courtof Punjab and Haryana at Chandigarh in CRA-D. No. 311-DB of 2018(O&M).

Siddharth Mittal and Prabhat Kumar, Advs. for the Appellant.F

Ms. Jaspreet Gogia, Ms. Ashima Mandla, Ms. Mandakini Singh,Karanvir Gogia and Ms. Shivangi Singhal, Advs. for the Respondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.G

G1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 28.11.2019 passed by the High Court of Punjab andHaryana at Chandigarh in CRA-DB No.311 of 2018 by which the HighCourt has dismissed the said appeal preferred by the appellant herein -original accused and has confirmed the judgment and order of convictionand sentence passed by the Learned Special Court convicting the accusedH

for the offence punishable under Section 21 of the Narcotic Drugs andPsychotropic Substances Act, 1985 (hereinafter to be referred to as‘the Act”) and sentenced the accused to undergo 15 years R.I. and topay a fine of Rs.2 Lakhs and in default of payment of fine, to furtherundergo one year R.I., original accused has preferred the present appeal.

2. At the outset, it is required to be noted that vide earlier orderdated 16.12.2020, this Court has refused to interfere with the convictionof the appellant for an offence punishable under Section 21 of the Acthowever, has issued notice confined to the question of sentence.Therefore, in the present appeal the question of sentence of 15 yearsR.I. with fine of Rs.2 Lakhs and in default to undergo further one yearR.I. only is required to be considered.

3. Learned Counsel appearing on behalf of the appellant hasvehemently submitted that the minimum punishment/sentence which isprovided in Section 21 of the Act is 10 years. It is submitted that as perSection 32B of the Act where a minimum term of imprisonment or amountof fine is prescribed for any offence committed under the Act, the Courtmay in addition to such factors, as it may deem fit, take into account thefactors which are mentioned in Section 32B for imposing a punishmenthigher than the term of imprisonment or amount of fine. It is submittedthat therefore, by imposing the punishment higher than the minimumterm of imprisonment i.e. in the present case 15 years R.I., the Courthas to take into consideration the factors mentioned in Section 32B ofthe Act and has to assign the reasons while imposing the punishmenthigher than the minimum term of imprisonment. It is submitted that inthe present case while imposing a punishment of 15 years R.I. which isadmittedly higher than the minimum term of imprisonment of 10 yearsR.I., neither the Special Court nor the High Court have assigned anyreasons taking into account the factors mentioned in Section 32B of theAct.

3.1 It is submitted that the appellant is the first time convict and isa poor person and was only a carrier. It is further submitted by LearnedCounsel for the appellant – accused that in the present case the mainsupplier of the narcotic substance has not been apprehended/arrestedand the appellant-accused being a carrier, sentence higher than theminimum provided under the Act is not warranted. It is submitted thatfactors contained in clauses (a) to (f) of Section 32B have not been A

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Aconsidered by the Learned Special Court while imposing a sentencehigher than the minimum sentence.

3.2 For the aforesaid, some of the observations made by this Courtin para 23 of the decision in the case of Rafiq Qureshi vs. NarcoticControl Bureau, Eastern Zonal Unit, (2019) 6 SCC 492 has beenBrelied upon.

Learned Counsel appearing on behalf of the appellant – originalaccused 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 casewhere the accused was found to be in possession of narcotic drugsCwhich was much higher than the commercial quantity i.e. 609.6 gm, asper 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 againheld that awarding of adequate sentence is a question of personal libertyDprotected by Article 21 of the Constitution of India and there is arequirement of giving due weightage to mitigating and aggravatingcircumstances. Reliance is placed on the decisions of this Court in thecase of Soman vs. State of Kerala, (2013) 11 SCC 382 and State ofHaryana vs. Asha Devi, (2015) 8 SCC 39. It is submitted that in thepresent case mitigating circumstances are that (i) appellant is a poorEman and only bread winner of the family; (ii) Trial Court found that theappellant should be dealt with leniently while considering the question ofsentence; (iii) appellant was merely a carrier and the main accused MalkitSingh was never arrested and in fact no fruitful efforts were made toarrest him; (iv) the appellant is the first time convict under the Act andFthere is no pending case against the appellant under the Act and nospecial factors as stated in Section 32B (a) to (f) are present in the factsand circumstances of the present case. It is submitted that against theabove 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.GIt is submitted that therefore the mitigating circumstances are more infavour of the accused and therefore in the facts and circumstances ofthe case the punishment/sentence higher than the minimum providedunder the Act is not warranted.

4. While opposing the present appeal, Learned Counsel appearingHon behalf of the Respondent – State has vehemently submitted that in

the facts and circumstances of the case neither the Learned SpecialCourt nor the High Court have committed any error in imposing thepunishment of 15 years R.I., which is higher than the minimum sentenceprovided under the Act. It is submitted that in the present case and asper the case of prosecution which has been established and proved, theaccused was selling the heroin. It is submitted that the accused wasfound to be in possession of 1 kg heroin which is much higher than thecommercial quantity and four times greater than the minimum of thecommercial quantity. It is submitted that 250 gm is a minimum commercialquantity and in the present case the accused was found to be in possessionof 1 kg of heroin which is four times more/higher than the minimumcommercial quantity provided under the Act. It is submitted that even inthe case of Rafiq Qureshi (Supra) it is observed and held that thequantity of the narcotic substance recovered may be a relevant factor toimpose punishment higher than the minimum and thus, quantity ofsubstance with which accused is charged is a relevant factor, which canbe taken into consideration while fixing quantum of punishment. It isfurther observed and held that a decision to impose a punishment higherthan the minimum is not confined or limited to the factors as enumeratedin clauses (a) to (f) of Section 32B and the Court’s discretion to considersuch factors as it may deem fit is not taken away or tinkered. It issubmitted that in the aforesaid case though it was found that the courthas not adverted to the factors mentioned in clauses (a) to (f) of Section32B of the Act, considering the fact that quantity of manufactured drugbeing much much higher than the minimum commercial quantity, thisCourt refused to interfere with the order passed by the Learned SpecialCourt and the High Court imposing the sentence/imprisonment higherthan the minimum imprisonment mentioned in Section 21 of the Act. It issubmitted that in that case on facts the accused was found to be acarrier and therefore, this Court reduced the imprisonment from 16 yearsto 12 years R.I. It is submitted that in the present case the accused wasfound to be in possession of huge quantity of heroin i.e. 1 kg and wasfound to be selling narcotic substance/drugs, the sentence/imprisonmentimposed by the Learned Trial Court confirmed by the High Court of 15years 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 AB

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Afour times more than the minimum of commercial quantity. 250 gm andabove of Narcotic substance/drug is a commercial quantity as per theNDPS Act. The minimum sentence provided under Section 21 of theAct is 10 years R.I. So far as the commercial quantity is concerned, itmay be upto 20 years R.I. Therefore, the minimum sentence forcommercial quantity shall not be less than 10 years, which may extendBto 20 years with fine which shall not be less than Rs.1 lakh but whichmay extend to Rs.2 lakhs. Section 32B of the Act provides for factors tobe 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 thanCthe minimum punishment.— Where a minimum term ofimprisonment or amount of fine is prescribed for any offencecommitted under this Act, the court may, in addition to such factorsas it may deem fit, take into account the following factors forimposing a punishment higher than the minimum term ofDimprisonment 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 hastaken advantage of that office in committing the offence;

E(c) the fact that the minors are affected by the offence or theminors are used for the commission of an offence; (d) the fact that the offence is committed in an educationalinstitution or social service facility or in the immediate vicinity ofsuch institution or faculty or in other place to which school childrenFand students resort for educational, sports and social activities;(e) the fact that the offender belongs to organised international orany other criminal group which is involved in the commission ofthe offence; and (f) the fact that the offender is involved in otherillegal activities facilitated by commission of the offence.]”

GTherefore, while imposing a punishment higher than the minimumterm of the imprisonment or an amount of fine, the Court may take intoaccount the factors enumerated in Section 32B of the Act referred tohereinabove. However, it is required to be noted that Section 32B of theAct itself further provides that the Court may, in addition to such factorsas it may deem fit, take into account the factors for imposing a punishmentH

higher than the minimum term of imprisonment or amount of fine asmentioned in Section 32B of the Act. Therefore, while imposing thepunishment higher than the minimum term of imprisonment or amount offine, the Court may take into account such factors as it may deem fitand also the factors enumerated/mentioned in Section 32B of the Act.Therefore, on fair reading of Section 32B of the Act, it cannot be saidthat while imposing a punishment higher than the minimum term ofimprisonment or amount of fine, the Court has to consider only thosefactors which are mentioned/enumerated in Section 32B of the Act.Identical question came to be considered by this Court in the case ofRafiq Qureshi (Supra). While considering the statutory schemementioned in Section 32B of the Act, it is observed and held that Courtmay, where minimum term of punishment is prescribed, take intoconsideration “such factors as it may deem fit” for imposing a punishmenthigher than the minimum term of imprisonment or fine and in additiontake into account the factors for imposing a punishment higher than theminimum as enumerated in clauses (a) to (f) of Section 32B. It is furtherobserved and held that quantity of the substance with which accused ischarged is a relevant factor, which can be taken into consideration whilefixing the quantum of punishment. In paragraph 15.1 to 16 and 18 it isobserved and held as under:

“15.1 The court may where minimum term of punishment isprescribed take into consideration such factors as it may deem fitfor imposing a punishment higher than the minimum term ofimprisonment or fine; 15.2 In addition, take into account the factors for imposing apunishment higher than the minimum as enumerated in clause (a)to (f).

16. The statutory scheme indicates that the decision to impose apunishment higher than the minimum is not confined or limited tothe factors enumerated in clauses (a) to (f). The Courts discretionto consider such factors as it may deem fit is not taken away ortinkered. In a case a person is found in possession of amanufactured drug whose quantity is equivalent to commercialquantity, the punishment as per Section 21(c) has to be not lessthan ten years which may extend to twenty years. But supposethe quantity of manufactured drug is 20 time of the commercialquantity, it may be a relevant factor to impose punishment higher AB

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Athan minimum. Thus, quantity of substance with which an accusedis charged is a relevant factor, which can be taken intoconsideration while fixing quantum of the punishment. Clauses(a) to (f) as enumerated in Section 32B do not enumerate anyfactor regarding quantity of substance as a factor for determiningthe punishment. In the event the Court takes into considerationBthe magnitude of quantity with regard to which an accused isconvicted the said factor is relevant factor and the Court cannotbe said to have committed an error when taking into considerationany such factor, higher than the minimum term of punishment isawarded.

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18. The specific words used in Section 32B that Court may, inaddition to such factors as it may deem fit clearly indicates thatCourts discretion to take such factor as it may deem fit is notfettered by factors which are enumerated in clauses (a) to (f) ofDSection 32B”.

6.1 Therefore, quantity of substance would fall into “such factorsas it may deem fit” and while exercising its discretion of imposing thesentence/imprisonment higher than the minimum, if the Court has takeninto consideration such factor of larger/higher quantity of substance, itEcannot be said that the Court has committed an error. The Court has awide discretion to impose the sentence/imprisonment ranging between10 years to 20 years and while imposing such sentence/imprisonment inaddition, the Court may also take into consideration other factors asenumerated in Section 32B (a) to (f). Therefore, while imposing aFpunishment higher than the minimum sentence, if the Court hasconsidered such factor as it may deem fit other than the factorsenumerated in Section 32B (a) to (f), the High Court has to only considerwhether “such factor” is a relevant factor or not.

6.2 Applying the aforesaid principles of law to the facts of theGcase on hand, it is required to be considered whether in the facts andcircumstances of the case the sentence of 15 years R.I. with fine ofRs.2 Lakhs imposed by the Learned Special Court and confirmed by theHigh Court require interference by this Court? While considering therequest made on behalf of the accused to award lesser punishment andto take lenient view while sentencing him, the Special Court in fact hasH

taken into consideration the relevant facts/factors while not imposingthe maximum punishment of 20 years R.I. and awarding the sentence of15 years R.I. Therefore, as such, it cannot be said that the Special Courthas not at all applied its mind while awarding the sentence.

6.3 Submission on behalf of the accused that the main supplierhas not been apprehended/arrested and the appellant is a carrier onlycannot be a ground to interfere with the sentence imposed by the LearnedSpecial Court confirmed by the High Court. In most of the cases themain supplier, who may be from outside country may not be apprehendedand/or arrested. Once the accused is found to be in illegal possession ofthe narcotic substance/drugs, if in the circumstances so warranted, canbe awarded the sentence higher than the minimum prescribed/providedunder the Act.

6.4 In the present case the appellant - accused was found to be inpossession of 1 kg heroin and he sold it to the informant. Therefore, hecannot be said to be a mere carrier. In given case, even a carrier who ishaving the knowledge that he is carrying with him narcotic substance/drugs and is found to be with huge commercial quantity of narcoticsubstance/drugs can be awarded the sentence higher than the minimumsentence provided under the Act. In the present case, as observedhereinabove, the accused was found to be in possession of 1 kg heroinand the minimum commercial quantity is 250 gm. Therefore, the accusedwas found to be in possession of 4 times higher than the minimumcommercial quantity and therefore, the sentence imposed by the LearnedSpecial Court imposing the sentence of 15 years R.I. with fine of Rs.2lakhs, confirmed by the High Court is not required to be interfered withby this Court. It cannot be said that while imposing such punishment theCourt has taken into consideration any irrelevant factors.

7. Now so far as the submission on behalf of the accused thatawarding of adequate sentence is question of personal liberty protectedby Article 21 of the Constitution of India and there is requirement ofgiving due weightage to the mitigating and aggravating circumstancesand in the present case the mitigating circumstances in favour of theaccused are more than the aggravating circumstances and therefore thepunishment higher than the minimum provided under the Act is not justifiedand/or warranted is concerned, at the outset, it is required to be notedthat the appellant is held to be guilty for the offence under Section 21 ofthe Act and found to be in possession of 1 kg heroin which is four times A

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Amore/higher than the commercial quantity. At this stage, the statementof objects and reasons for enactment of NDPS Act are required to bereferred to. Before the NDPS Act 1965 was enacted, the statutory controlover narcotic drugs was exercised in India through number of Centraland State enactments viz. — The Opium Act, 1857, (b) the Opium Act,1878 and (c) The Dangerous Drugs Act, 1930. However, with theBpassage of time and developments in the field of illicit drug traffic anddrug abuse at national and international level it was noticed and foundthat (i) The scheme of penalties under the aforesaid ACTS was notsufficiently deterrent to meet the challenge of well-organized gangs ofsmugglers; (ii) The country has for the last few years been increasinglyCfacing the problem of transit traffic of drugs coming mainly fromthe neighboring countries and destined mainly to Western countries; (iii)During recent years new drugs of addiction which have come to beknown as psychotropic substances have appeared on the scene andposed serious problems to national governments. Therefore with a viewto overcome the aforestated deficiencies the NDPS Act, 1985 came toDbe enacted. That thereafter to check the menace of dangerous drugsflooding the market, Section 37 of the Act came to be amended and ithas been provided that the accused of an offence under the Act shall notbe released on bail during trial unless the mandatory conditions providedin Section 37 are satisfied.

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While considering the submission on behalf of the accused onmitigating and aggravating circumstances and the request to take lenientview and not to impose the punishment higher than the minimum sentenceprovided 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

Analysis

Fwho are dealing in narcotic drugs are instruments in causing death or ininflicting death blow to number of innocent young victims who arevulnerable; it cause deleterious effects and deadly impact on the society;they are hazard to the society. Organized activities of the underworldand the clandestine smuggling of narcotic drugs and psychotropicsubstances into this country and illegal trafficking in such drugs andGsubstances shall lay to drug addiction among a sizeable section of thepublic, particularly the adolescents and students of both sexes and themenace has assumed serious and alarming proportions in the recentyears. Therefore, it has a deadly impact on the society as a whole.Therefore, while awarding the sentence/punishment in case of NDPSHAct, the interest of the society as a whole is also required to be taken in GURDEV SINGH v. STATE OF PUNJAB

consideration. Therefore, while striking balance between the mitigatingand aggravating circumstances, public interest, impact on the society asa whole will always be tilt in favour of the suitable higher punishment.Therefore, merely because the accused is a poor man and/or a carrierand/or is a sole bread earner cannot be such mitigating circumstances infavour of the accused while awarding the sentence/punishment in thecase of NDPS Act. Even otherwise, in the present case, the SpecialCourt, as observed hereinabove has taken into consideration thesubmission on behalf of the accused that he is a poor person; that he issole bread earner, that it is his first offence, while not imposing themaximum punishment of 20 years R.I and imposing the punishment of15 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 bedismissed and is accordingly dismissed.

Devika Gujral

Appeal dismissed.

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