LIVELIHOOD CONDITION NOT A MITIGATING FACTOR FOR LESSER IMPRISONMENT SENTENCE UNDER THE NDPS ACT, 1985

CASE DIARY
Name of the case	Gurudev Singh v. State of Punjab
Application Ref.	Criminal Appeal No. 375 Of 2021
Appellant	Gurudev Singh
Respondent	State of Punjab
Judiciary	Supreme Court of India
Bench	·         Justice Dr. Dhananjaya Y Chandrachud ·         Justice M R Shah
Date of judgment	April 06, 2021

PART - A: OVERVIEW

·   The Apex Court on 6^th day of April 2021 was considering an appeal filed by Appellant before the jurisdiction of the Hon’ble Supreme Court pertaining to the reduction of sentence awarded by the Special Court and as reaffirmed by the High Court for conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter “NDPS Act”)

·    The Court dealt with interpretation of Section 32B of the NDPS Act which casts an onus on the adjudicating authority to consider the parameters / factors for conviction of a person under Section 21 of the NDPS Act.

PART – B: FACTS OF THE CASE

·     The Appellant was in possession of narcotic substance viz. heroin and was convicted by the Special Court under Section 21 of the NDPS Act. Section 21 empowers the adjudicating authority to impose penalty or imprisonment upon a person who is found to manufacture, be in possession, trades etc. in narcotic substances.

·      The Appellant was found to be in the possession of 1 Kg of heroin which was above the commercial quantity permissible under NDPS Act.

·    The Special Court convicted the Appellant of contravention under NDPS Act and sentenced him to rigorous imprisonment of 15 years with a monetary penalty of Rs. 2 Lakhs.

·   The Appellant preferred an appeal to the Punjab and Haryana High Court against the sentence awarded by the Special Court. The High Court upheld the sentence awarded by the Special Court and dismissed the petition of the Appellant.

·     The Appellant preferred an appeal to the Supreme Court which was dismissed through order dated 16.12.2020 and refused to interfere with the conviction. However, the Apex Court issued notice for determining the viability of imprisonment sentence of 15 years imposed upon the Appellant by the Special Court.

PART - C: CONTENTION OF THE PARTIES

C.1. CONTENTIONS OF THE APPELLANT

The Appellant during the course of appeal to the Apex Court made the following submissions:

·    The Appellant is a poor man, a first time convict and merely a carrier of narcotic substance rather than being involved in active trade.

·      The prime accused involved in the case was not arrested nor convicted who had major role to play in dealing with heroin than the Appellant who was merely in possession.

·      The Special Court and the High Court had awarded an imprisonment sentence higher than that of the minimum sentence under Section 21 of the NDPS Act. While doing so, the Special Court and the High Court has not considered the factors under Section 32B which is mandatory in nature before awarding an imprisonment sentence higher than the minimum statutory sentence.

·    Reliance is placed on ruling of the Apex Court in Rafiq Qureshi vs. Narcotic Control Bureau, Eastern Zonal Unit ((2019) 6 SCC 492) wherein the court took a lenient view in reducing the sentence from 16 years to 12 years.

·   The Appellant belonged to the poverty segment and thus with all submissions above, form as mitigating factors for reduction of sentence.

C.2. CONTENTIONS OF THE RESPONDENT

The Respondent during the course of appeal to the Apex Court made the following submissions:

·    The Special Court and High Court did not commit any error while awarding and upholding the sentence of 15 years of rigorous imprisonment.

·     It is established during the trail that the Appellant was in possession of 1 Kg of narcotic substance which is clearly four times more than the minimum threshold for commercial quantity which is 250 gms.

·    Reliance is placed on ruling of the Apex Court in Rafiq Qureshi vs. Narcotic Control Bureau, Eastern Zonal Unit ((2019) 6 SCC 492) wherein the court also contemplated that the quantity of narcotic substance recovered would be a justified ground to impose a higher quantum of imprisonment sentence than the minimum prescribed under Section 21.

·    The Courts are not constricted under Section 32B to first establish the factors to award an imprisonment sentence as the language of the section clearly implies that the stated factors would be taken by the court upon its own discretion that is demonstrated by the usage of the words “the court may”.

·      The Appellant was found to be selling heroin rather than just being a carrier.

PART – D: QUESTION OF LAW INVOLVED

The perusal of the case by different levels of judiciary in the case under consideration has raised the following questions of law involved:

a.   Is the judiciary bound to consider the factors enshrined under Section 32B of the NDPS Act prior to deciding the imprisonment sentence which would be higher than the minimum threshold mentioned under the Act?

b.   Is state of livelihood (poverty) a determinant / mitigating factor for the court to reduce the sentence for conviction under Section 21 of the NDPS Act?

PART – E: RULING BY THE APEX COURT

·     It is established that the Appellant was in possession of 1 Kg of narcotic substance which is four times more than the limit set for commercial quantity which the Appellant was in knowledge of. It is also fairly settled that the Apellant was involved in selling herein rather than just merely acting as a carrier.

·      Section 21 of the NDPS Act imposes a minimum imprisonment term of 10 years to a maximum term of 20 years with fine not less than one lakh which may extend to two lakhs. The court may take into consider any factors listed out under Section 32B of the Act or any other factors which may be suitable to justify the conviction. This is established by the usage of words “or such factors as it may deem fit” in Section 32B of the NDPS Act.

·     In the present case, the Appellant possessed a substantial quantity of narcotic substance viz. 1 Kg which is materially more than the threshold set for commercial quantity. It could be interpreted that the Courts have taken quantity involved in the present as a factor (such factors as deemed fit) to impose a higher rigorous imprisonment of 15 years over the minimum threshold of 10 years.

·    While awarding and upholding the imprisonment sentence, the Special Court and the High Court have considered all the factors for conviction including the fact that the Appellant is a poor person and belongs to poverty stricken category.

·     It is not for the adjudication that the main accused must be arrested. Once any person even in the case is found to be in possession and dealing of narcotic substance, he or she shall be liable to be imprisonment under Section 21 of the NDPS Act and if circumstances warrant, higher sentence than the minimum threshold listed out can be awarded.

·      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.

·   The livelihood condition of Appellant that he is poor and under poverty for reducing the sentence of imprisonment is unsustainable.

·     The appeal preferred by Appellant accordingly does not have any substance to prove a case in his favor.

PART – F: ANALYSIS

·    Prior to the promulgation of  NDPS Act, the control and regulation over drugs and narcotic substances were administered through Central and State laws viz.:

a.      The Opium Act, 1857

b.      The Opium Act, 1878

c.       The Dangerous Drugs Act, 1930.

·    The evolution of time and society along with the growth of western neighboring countries has increased drug trafficking and hoarding of narcotics in India along with drug abuse as well. It was understood that the scheme of existing penalties was not sufficient and stringent to maintain control over narcotic substances. This necessitated and paved way to the enactment of the NDPS Act which is considered draconian and stringent in nature. There are a catena of dictums to rely upon for understanding the rationale of existence of the NDPS Act which are:

a.       K. Venkatesham and Anr. v. State of A.P.

Ref:  (2000 (2) ALD Cri 64; Judgment dated 20^th April 2000)

The Andhra High Court has contemplated that "The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly." 

b.      State Of Rajasthan v. Jag Raj Singh

Ref:  (Criminal Appeal No. 1233 Of 2006; Judgment dated 29^th June 2016)

The Hon’ble Apex Court through its dictum in this case postulated that “The statement of objects and reasons of the NDPS Act makes it clear that to make the scheme of penalties sufficiently deterrent to meet the challenge of well organized gangs of smugglers, and to provide the officers of a number of important Central enforcement agencies like Narcotics, Customs, Central Excise, etc. with the power of investigation of offences with regard to new drugs of addiction which have come to be known as psychotropic substances posing serious problems to national governments, this comprehensive law was enacted by Parliament enabling exercise of control over”

·    The language employed in Section 21 of the NDPS Act categorically outlines the fact that the conviction of a person shall take place upon being proved that such person was dealing in narcotic substances which includes the examination of all surrounding circumstances by the adjudicating authority including the state of livelihood of the Appellant.

·   The stringent imposition of sentence under the NDPS Act is justified because of involvement of public interest at large rather than individual interest and since the involvement of improper dealing of drugs have larger social impact.

·     The language couched in Section 32B of the NDPS Act bestows the autonomy to the adjudicating authority to establish an offence by considering any other factor as may be deemed fit. In the present case the possession of 1 Kg of heroin is four times more than the permissible commercial quantity. Section 2 of the NDPS Act defines commercial quantity the limit of which was to be notified by the Central Government. The Government through Gazette Notification bearing reference no. S.O. 1055 (E) dated 19th October, 2001 notified that the recognized commercial quantity for heroin shall be 250 gms.  

·     The magnitude of offence is envisaged through the quantum of drugs possessed. The Special Court and the High Court thus have not erred in awarding and upholding the conviction sentence respectively.    

The Judgment can be accessed at:

https://main.sci.gov.in/supremecourt/2020/12408/12408_2020_36_1501_27321_Judgement_06-Apr-2021.pdf

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