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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 ..... ffence punishable under Section 21 of the Act however, has issued notice confined to the question of sentence. Therefore, in the present appeal the question of sentence of 15 years R.I. with fine of Rs. 2 Lakhs and in default to undergo further one year R.I. only is required to be considered. 3. Learned Counsel appearing on behalf of the appellant has vehemently submitted that the minimum punishment/sentence which is provided in Section 21 of the Act is 10 years. It is submitted that as per Section 32B of the Act where a minimum term of imprisonment or amount of fine is prescribed for any offence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is the first time convict under the Act and there is no pending case against the appellant under the Act and no special factors as stated in Section 32B (a) to (f) are present in the facts and circumstances of the present case. It is submitted that against the above 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. It is submitted that therefore the mitigating circumstances are more in favour of the accused and therefore in the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above of Narcotic substance/drug is a commercial quantity as per the NDPS Act. The minimum sentence provided under Section 21 of the Act is 10 years R.I. So far as the commercial quantity is concerned, it may be upto 20 years R.I. Therefore, the minimum sentence for commercial quantity shall not be less than 10 years, which may extend to 20 years with fine which shall not be less than Rs. 1 lakh but which may extend to Rs. 2 lakhs. Section 32B of the Act provides for factors to be 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 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; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fixing the quantum of punishment. In paragraph 15.1 to 16 and 18 it is observed and held as under: "15.1 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; 15.2 In addition, take into account the factors for imposing a punishment higher than the minimum as enumerated in clause (a) to (f). 16. The statutory scheme indicates 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at all applied its mind while awarding the sentence. 6.3 Submission on behalf of the accused that the main supplier has not been apprehended/arrested and the appellant is a carrier only cannot be a ground to interfere with the sentence imposed by the Learned Special Court confirmed by the High Court. In most of the cases the main supplier, who may be from outside country may not be apprehended and/or arrested. Once the accused is found to be in illegal possession of the narcotic substance/drugs, if in the circumstances so warranted, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace of dangerous drugs flooding the market, Section 37 of the Act came to be amended and it has been provided that the accused of an offence under the Act shall not be released on bail during trial unless the mandatory conditions provided in Section 37 are satisfied. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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