Quantity Of Narcotic Substance A Relevant Factor To Award Punishment Higher Than The Minimum Under NDPS Act: SC [Read Judgment]

The bench comprising Justice Ashok Bhushan and Justice KM Joseph observed that the 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.

In this case (Rafiq Qureshi vs. Narcotic Control Bureau), the accused was convicted and sentence under Section 21(C) of the NDPS Act. The High Court while maintaining the conviction has reduced the sentence to sixteen years rigorous imprisonment with fine of Rs. 2 lakh.

The accused approached the Apex Court contending that he could not have been awarded sentence of more than ten years which is the minimum sentence provided for offence under Section 21(c), since the Court below did not advert to Section 32B of the Narcotic Drugs and Psychotropic Substances Act, 1985 and has not returned any finding that any of the factors for imposing the punishment higher than the minimum term of imprisonment as enumerated in clauses (a) to (f) are present in the facts of the present case.

The issues considered by the bench are: i) whether in absence of any of the factors enumerated in Section 32B from clauses (a) to (f) whether the trial court could have awarded punishment higher than the minimum term of imprisonment. ii) Whether the trial court could not take any other factor into consideration apart from factors mentioned in clauses (a) to (f) while imposing punishment higher than the minimum term of imprisonment?

Factors enumerated in Section 32B

Section 32B enlists factors to be taken into account for imposing higher than the minimum punishment

• 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 offences; and
• f)The fact that the offender is involved in other illegal activities facilitated by commission of the offence.

At the Section 21(c) provides that rigorous imprisonment shall not be "less than ten years but which may extend to twenty years and shall also be liable to fine".

The bench noticed that the Section 32B uses the phrase "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". Thus, the court may where minimum term of punishment is prescribed take into consideration "such factors as it may deem fit" for imposing a punishment higher than the minimum term of imprisonment or fine; in addition, take into account the factors for imposing a punishment higher than the minimum as enumerated in clause (a) to (f), the court said.

Quantity Of Substance With Which An Accused Is Charged Is Relevant Factor

The court observed that the decision to impose a punishment higher than the minimum is not confined or limited to the factors enumerated in clauses (a) to (f).

"The Court's 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."

In this case, the bench observed that the decision of the trial court to award a sentence higher than the minimum relying on the quantity of substance cannot be faulted even though the Court had not adverted to the factors mentioned in clauses (a) to (b) as enumerated under Section 32B.

"However, when taking any factor into consideration other than the factors enumerated in Section 32B, (a) to (f), the Court imposes a punishment higher than the minimum sentence, it can be examined by higher Courts as to whether factor taken into consideration by the Court is a relevant factor or not. Thus in a case where Court imposes a punishment higher than minimum relying on a irrelevant factor and no other factor as enumerated in Section 32B (a to f) are present award of sentence higher than minimum can be interfered with."

The bench finally partly allowed the appeal by reducing the sentence to 12 years rigorous imprisonment with fine of Rs. 2 lakh.

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