What the Supreme Court held on punishment higher than minimum imprisonment under the NDPS Act

The quantity of contraband found in possession of an accused is a relevant factor for awarding a punishment higher than the minimum prescribed sentence under Section 32B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Supreme Court ruled on Tuesday..In the judgment rendered by the Bench of Justices Ashok Bhushan and KM Joseph, the Court said that the decision to impose a punishment higher than the minimum term of imprisonment is not constrained by the factors laid down in clauses (a) to (f) of Section 32B..The appellant in the case was convicted under Section 21(c) of the NDPS Act for being in possession of a commercial quantity of heroin. He was sentenced by the District and Sessions Court to undergo a term of eighteen years. When this was challenged before the Calcutta High Court, the conviction was maintained. However, the prison term was reduced to sixteen years..The minimum term for imprisonment prescribed under Section 21(c) is that of ten years and the Court could not have awarded a term greater than that without adverting to Section 32B of the Act, the appellant contended before the Supreme Court..Section 32B of the NDPS Act deals with the factors to be taken into account for imposing a punishment higher than the minimum punishment prescribed. The statute lays down six factors that the Court may consider, in addition to other factors it deems fit..These factors encompass scenarios such as the offender threatening to use violence, holding a public office, using minors in the offence, committing the offence at an educational institute, hailing from an organized international group, or being involved in other illegal activities..However, these factors do not limit or restrict the courts from imposing a sentence higher than the minimum punishment, the Court said..In this regard, the Court analysed the wording of Section 32B. The said provision 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”..The Court noted that 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 Court’s discretion to consider other factors is not taken away or tinkered..In 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 times the commercial quantity, it may be a relevant factor to impose punishment higher than the minimum..“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”.The Court agreed with the findings of the High Court and the lower court, stating,.“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 Court thus upheld the conviction and the decision of the courts to impose a sentence higher than the minimum punishment in the case. However, it reduced the term from sixteen years to twelve years..Read the Judgment:.Bar & Bench is available on WhatsApp. For real-time updates on stories, click here to subscribe to our WhatsApp.