Awarding of adequate sentence is a question of personal liberty protected by Art.21: SC reiterates

In the present case the mitigating circumstances in favor of the accused are more than the aggravating circumstances and therefore the punishment higher than the minimum provided under the Act is not justified and/or warranted is concerned, at the outset, it is required to be noted that the appellant is held to be guilty of the offense under Section 21 of the Act and found to be in possession of 1 kg heroin which is four times more/higher than the commercial quantity. (Para 7)

GURDEV SINGH V/S STATE OF PUNJAB

Criminal Appeal No. 375 of 2021

Decided on April 6th, 2021

A Two-Judge Bench of the Hon’ble Supreme Court comprising of Justice Dhananjaya Y Chandrachud and Justice M R Shah presided over an appeal to reduce sentence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as ‘the Act”).

Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Punjab and Haryana at Chandigarh 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 of the offense punishable under Section 21 of the NDPS 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.

Learned Counsel appearing on behalf of the Appellant submitted that: (i) The minimum punishment/sentence which is provided in Section 21 of the Act is 10 years. (ii) 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 has assigned any reasons taking into account the factors mentioned in Section 32B of the Act. (iii) The appellant is a first-time convict and is a poor person and was only a carrier. Since the main supplier of the narcotic substance has not been arrested and the appellantaccused of being a carrier, a sentence higher than the minimum provided under the Act is not warranted. (iv)That awarding of the adequate sentence is a question of personal liberty protected by Article 21 of the Constitution of India and there is a requirement of giving due weightage to mitigating and aggravating circumstances.

Learned Counsel appearing on behalf of the Respondent submitted that: (i) 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 viz. 250 gm. (ii) The quantity of the narcotic substance recovered may be a relevant factor to impose punishment higher than the minimum and thus, the quantity of substance with which the accused is charged is a relevant factor, which can be taken into consideration while fixing the quantum of punishment. (iii) A decision to impose a punishment higher than the minimum is not confined or limited to the factors as enumerated in clauses (a) to (f) of Section 32B and the Court’s discretion to consider such factors as it may deem fit is not taken away or tinkered.

“Now so far as the submission on behalf of the accused that awarding of adequate sentence is question of personal liberty protected by Article 21 of the Constitution of India and there is requirement of giving due weightage to the mitigating and aggravating circumstances and in the present case the mitigating circumstances in favour of the accused are more than the aggravating circumstances and therefore the punishment higher than the minimum provided under the Act is not justified and/or warranted is concerned, at the outset, it is required to be noted that the appellant is held to be guilty for the offence under Section 21 of the Act and found to be in possession of 1 kg heroin which is four times more/higher than the commercial quantity.

While considering the submission on behalf of the accused on mitigating and aggravating circumstances and the request to take lenient view and not to impose the punishment higher than the minimum sentence provided 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 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. 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 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/pu in the case of NDPS Act. Even otherwise, in the present case, the Special Court, as observed hereinabove has taken into consideration the submission on behalf of the accused that he is a poor person; that he is sole bread earner, that it is his first offence, while not imposing the maximum punishment of 20 years R.I and imposing the punishment of 15 years R.I. only.” (Para 7)

The appeal was dismissed.

View/Download Judgment: Gurdev Singh V/s State of Punjab

Risikesh Dhanaki