GURDEV SINGHversusSTATE OF PUNJAB

                         [2021] 4 S.C.R. 439                            439


                        GURDEV SINGH                                    A
                                 v.
                       STATE OF PUNJAB
                 (Criminal Appeal No. 375 of 2021)
                          APRIL 06, 2021                                B
         [DR. DHANANJAYA Y CHANDRACHUD AND
                         M. R. SHAH, JJ.]
       Sentence/Sentencing: Conviction of appellant-accused under
s.21 of NDPS Act – He was found to be in possession of 1 kg heroin
which is four times more than the minimum of commercial quantity –      C
As per NDPS Act, 250 gm and above of Narcotic substance/drug is
a commercial quantity – The minimum sentence provided under s.21
of the NDPS Act is 10 years R.I. – So far as the commercial quantity
is concerned, it may be upto 20 years R.I. – Appellant was sentenced
to 15 years R.I. with fine of Rs.2 lakhs – Plea of appellant that       D
while imposing punishment of 15 years R.I. which is higher than
the minimum term of imprisonment of 10 years R.I. neither the Special
Court nor High Court assigned any reasons taking into account
the factors mentioned in s.32B of the NDPS Act – Held: 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    E
– 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 – Therefore, the sentence imposed by the Special Court    F
of 15 years R.I. with fine of Rs.2 lakhs, confirmed by the High
Court is not required to be interfered with – It cannot be said that
while imposing such punishment the Court took into consideration
any irrelevant factors – Narcotic Drugs and Psychotropic Substances
Act, 1985 – s.32B.
                                                                        G
      Sentence/Sentencing: Mitigating circumstances – Offence of
drug trafficking – 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/
punishment in case of NDPS Act – While awarding the sentence/
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                                439
440            SUPREME COURT REPORTS                        [2021] 4 S.C.R.


A     punishment in case of NDPS Act, the interest of the society as a
      whole is also required to be taken in consideration – Narcotic Drugs
      and Psychotropic Substances Act, 1985.
             Narcotic Drugs and Psychotropic Substances Act, 1985: s.32B
      – Relevant factors for imposing punishment higher than the minimum
B     terms of imprisonment – Held: While imposing the punishment higher
      than the minimum term of imprisonment or amount of fine, the Court
      may take into account such factors as it may deem fit and also the
      factors enumerated/mentioned in s.32B of the Act – The quantity of
      substance would fall into “such factors as it may deem fit” and
      while exercising its discretion of imposing the sentence/imprisonment
C     higher than the minimum, if the Court has taken into consideration
      such factor of larger/higher quantity of substance, it cannot be
      said that the Court has committed an error – The Court has a wide
      discretion to impose the sentence/imprisonment ranging between
      10 years to 20 years and while imposing such sentence/imprisonment
D     in addition, the Court may also take into consideration other factors
      as enumerated in s.32B (a) to (f) – In the instant case, while
      considering the request made on behalf of the accused to award
      lesser punishment and to take lenient view while sentencing him,
      the Special Court in fact took into consideration the relevant facts/
      factors while not imposing the maximum punishment of 20 years
E     R.I. and awarding the sentence of 15 years R.I. – Therefore, as
      such, it cannot be said that the Special Court did not at all apply its
      mind while awarding the sentence.
            Dismissing the appeal, the Court

F           HELD : 1. Section 32B of the NDPS Act provides for factors
      to be taken into account for imposing higher than the minimum
      punishment. Section 32B of the Act itself further provides that
      the Court may, in addition to such factors as it may deem fit, take
      into account the factors for imposing a punishment higher than
      the minimum term of imprisonment or amount of fine as mentioned
G     in Section 32B of the Act. Therefore, while imposing the
      punishment higher than the minimum term of imprisonment or
      amount of fine, the Court may take into account such factors as it
      may deem fit and also the factors enumerated/mentioned in

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            GURDEV SINGH v. STATE OF PUNJAB                             441


Section 32B of the Act. Therefore, it cannot be said that while         A
imposing a punishment higher than the minimum term of
imprisonment or amount of fine, the Court has to consider only
those factors which are mentioned/enumerated in Section 32B of
the Act. [Para 6][448-B-C, G-H; 449-A-C]
       2. The quantity of substance would fall into “such factors       B
as it may deem fit” and while exercising its discretion of imposing
the sentence/imprisonment higher than the minimum, if the Court
has taken into consideration such factor of larger/higher quantity
of substance, it cannot be said that the Court has committed an
error. The Court has a wide discretion to impose the sentence/
imprisonment ranging between 10 years to 20 years and while             C
imposing such sentence/imprisonment in addition, the Court may
also take into consideration other factors as enumerated in
Section 32B (a) to (f). Therefore, while imposing a punishment
higher than the minimum sentence, if the Court has considered
such factor as it may deem fit other than the factors enumerated        D
in Section 32B (a) to (f), the High Court has to only consider
whether “such factor” is a relevant factor or not. While
considering the request made on behalf of the accused to award
lesser punishment and to take lenient view while sentencing him,
the Special Court in fact took into consideration the relevant facts/
factors while not imposing the maximum punishment of 20 years           E
R.I. and awarding the sentence of 15 years R.I. Therefore,
as such, it cannot be said that the Special Court has not at all
applied its mind while awarding the sentence. [Paras 6.1 and
6.2][450-D-H; 451-A-B]
      3. Submission on behalf of the accused that the main supplier     F
has not been apprehended/arrested and the appellant is a carrier
only cannot be a ground to interfere with the sentence imposed
by the 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           G
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. In
the present case the appellant - accused was found to be in

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442            SUPREME COURT REPORTS                      [2021] 4 S.C.R.


A     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
B
      the Act. In the present case, the accused was found to be in
      possession of 1 kg heroin and the minimum commercial quantity
      is 250 gm. Therefore, the accused was found to be in possession
      of 4 times higher than the minimum commercial quantity and
      therefore, the sentence imposed by the Special Court imposing
C     the sentence of 15 years R.I. with fine of Rs.2 lakhs, confirmed
      by the High Court is not required to be interfered with by this
      Court. It cannot be said that while imposing such punishment
      the Court has taken into consideration any irrelevant factors.
      [Paras 6.3, 6.4][451-B-F]
D            4. The submission on behalf of the accused was 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
E     aggravating circumstances and therefore the punishment higher
      than the minimum provided under the Act is not justified and/or
      warranted. 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. At
F     this stage, the statement of objects and reasons for enactment of
      NDPS Act are required to be referred to. Before the NDPS Act
      1965 was enacted, the statutory control over narcotic drugs was
      exercised in India through number of Central and State
      enactments viz. — The Opium Act, 1857, (b) the Opium Act,
      1878 and (c) The Dangerous Drugs Act, 1930. However, with the
G     passage of time and developments in the field of illicit drug traffic
      and drug abuse at national and international level it was noticed
      and found that (i) The scheme of penalties under the aforesaid
      ACTS was not sufficiently deterrent to meet the challenge of well-

H
            GURDEV SINGH v. STATE OF PUNJAB                             443


organized gangs of smugglers; (ii) The country has for the last         A
few years been increasingly facing the problem of transit traffic
of drugs coming mainly from the neighboring countries and
destined mainly to Western countries; (iii) During recent years
new drugs of addiction which have come to be known as
psychotropic substances have appeared on the scene and posed
                                                                        B
serious problems to national governments. Therefore with a view
to overcome the aforestated deficiencies the NDPS Act, 1985
came to be enacted. That thereafter to check the menace 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        C
unless the mandatory conditions provided in Section 37 are
satisfied. [Para 7][451-F-H; 452-A-E]
       6. 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          D
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       E
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    F
and students of both sexes and the menace has assumed serious
and alarming proportions in the recent years. 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            G
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

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444            SUPREME COURT REPORTS                        [2021] 4 S.C.R.


A     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/punishment in the case of NDPS Act. Even otherwise,
      in the present case, the Special Court 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
B
      not imposing the maximum punishment of 20 years R.I
      and imposing the punishment of 15 years R.I. only. [Para 7]
      [452-E-H; 453-A-C]
            Rafiq Qureshi v. Narcotic Control Bureau, Eastern Zonal
            Unit (2019) 6 SCC 492 : [2019] 7 SCR 248; Soman v.
C           State of Kerala (2013) 11 SCC 382 : [2012]
            11 SCR 1155; State of Haryana v. Asha Devi (2015) 8
            SCC 39 : [2015] 6 SCR 348 - referred to.
                             Case Law Reference

D     [2019] 7 SCR 248                referred to              Para 3.2
      [2012] 11 SCR 1155              referred to              Para 3.3
      [2015] 6 SCR 348                referred to              Para 3.3
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 375 of 2021.
E
            From the Judgment and Order dated 28.11.2019 of the High Court
      of Punjab and Haryana at Chandigarh in CRA-D. No. 311-DB of 2018
      (O&M).
            Siddharth Mittal and Prabhat Kumar, Advs. for the Appellant.
F          Ms. Jaspreet Gogia, Ms. Ashima Mandla, Ms. Mandakini Singh,
      Karanvir Gogia and Ms. Shivangi Singhal, Advs. for the Respondent.
            The Judgment of the Court was delivered by
            M. R. SHAH, J.
G            1. Feeling aggrieved and dissatisfied with the impugned judgment
      and order dated 28.11.2019 passed by the High Court of Punjab and
      Haryana at Chandigarh in CRA-DB No.311 of 2018 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
H
              GURDEV SINGH v. STATE OF PUNJAB                                    445
                      [M. R. SHAH, J.]

for the offence punishable under Section 21 of the Narcotic Drugs and            A
Psychotropic Substances Act, 1985 (hereinafter to be referred to as
‘the 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.
       2. At the outset, it is required to be noted that vide earlier order      B
dated 16.12.2020, this Court has refused to interfere with the conviction
of the appellant for an offence 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.                                          C

       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         D
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           E
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 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 have assigned any             F
reasons taking into account the factors mentioned in Section 32B of the
Act.
       3.1 It is submitted that the appellant is the first time convict and is
a poor person and was only a carrier. It is further submitted by Learned
Counsel for the appellant – accused that in the present case the main            G
supplier of the narcotic substance has not been apprehended/arrested
and the appellant-accused being a carrier, sentence higher than the
minimum provided under the Act is not warranted. It is submitted that
factors contained in clauses (a) to (f) of Section 32B have not been
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446             SUPREME COURT REPORTS                           [2021] 4 S.C.R.


A     considered by the Learned Special Court while imposing a sentence
      higher than the minimum sentence.
             3.2 For the aforesaid, some of the observations made by this Court
      in para 23 of the decision in the case of Rafiq Qureshi vs. Narcotic
      Control Bureau, Eastern Zonal Unit, (2019) 6 SCC 492 has been
B     relied upon.
             Learned Counsel appearing on behalf of the appellant – original
      accused has further submitted that in the case of Rafiq Qureshi (Supra),
      this Court has reduced the sentence of 16 years to 12 years in a case
      where the accused was found to be in possession of narcotic drugs
C     which was much higher than the commercial quantity i.e. 609.6 gm, as
      per the analysis report.
              3.3 Learned Counsel appearing on behalf of the appellant –
      accused has further submitted that this Hon’ble Court has time and again
      held that awarding of adequate sentence is a question of personal liberty
D     protected by Article 21 of the Constitution of India and there is a
      requirement of giving due weightage to mitigating and aggravating
      circumstances. Reliance is placed on the decisions of this Court in the
      case of Soman vs. State of Kerala, (2013) 11 SCC 382 and State of
      Haryana vs. Asha Devi, (2015) 8 SCC 39. It is submitted that in the
      present case mitigating circumstances are that (i) appellant is a poor
E     man and only bread winner of the family; (ii) Trial Court found that the
      appellant should be dealt with leniently while considering the question of
      sentence; (iii) appellant was merely a carrier and the main accused Malkit
      Singh was never arrested and in fact no fruitful efforts were made to
      arrest him; (iv) the appellant is the first time convict under the Act and
F     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.
G     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
H     on behalf of the Respondent – State has vehemently submitted that in
              GURDEV SINGH v. STATE OF PUNJAB                                 447
                      [M. R. SHAH, J.]

the facts and circumstances of the case neither the Learned Special           A
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
accused was selling the heroin. It is submitted that the accused was
                                                                              B
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. It is submitted that 250 gm is a minimum commercial
quantity and in the present case the accused was found to be in possession
of 1 kg of heroin which is four times more/higher than the minimum
commercial quantity provided under the Act. It is submitted that even in      C
the case of Rafiq Qureshi (Supra) it is observed and held that the
quantity of the narcotic substance recovered may be a relevant factor to
impose punishment higher than the minimum and thus, quantity of
substance with which accused is charged is a relevant factor, which can
be taken into consideration while fixing quantum of punishment. It is
                                                                              D
further observed and held that 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. It is
submitted that in the aforesaid case though it was found that the court
has not adverted to the factors mentioned in clauses (a) to (f) of Section    E
32B of the Act, considering the fact that quantity of manufactured drug
being much much higher than the minimum commercial quantity, this
Court refused to interfere with the order passed by the Learned Special
Court and the High Court imposing the sentence/imprisonment higher
than the minimum imprisonment mentioned in Section 21 of the Act. It is
                                                                              F
submitted that in that case on facts the accused was found to be a
carrier and therefore, this Court reduced the imprisonment from 16 years
to 12 years R.I. It is submitted that in the present case the accused was
found to be in possession of huge quantity of heroin i.e. 1 kg and was
found to be selling narcotic substance/drugs, the sentence/imprisonment
imposed by the Learned Trial Court confirmed by the High Court of 15          G
years R.I. with fine of Rs.2 Lakhs is not required to be interfered with.
      5. Heard the Learned Counsel for the respective parties at length.
      6. As observed hereinabove, in the present case the appellant –
original accused was found to be in possession of 1 kg heroin which is
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448            SUPREME COURT REPORTS                            [2021] 4 S.C.R.


A     four times more than the minimum of commercial quantity. 250 gm and
      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
B
      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
C           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
D           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;

E           (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
F           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 offence; and (f) the fact that the offender is involved in other
            illegal activities facilitated by commission of the offence.]”
G            Therefore, while imposing a punishment higher than the minimum
      term of the imprisonment or an amount of fine, the Court may take into
      account the factors enumerated in Section 32B of the Act referred to
      hereinabove. However, it is required to be noted that Section 32B of the
      Act itself further provides that the Court may, in addition to such factors
      as it may deem fit, take into account the factors for imposing a punishment
H
             GURDEV SINGH v. STATE OF PUNJAB                                449
                     [M. R. SHAH, J.]

higher than the minimum term of imprisonment or amount of fine as           A
mentioned in Section 32B of the Act. Therefore, while imposing the
punishment higher than the minimum term of imprisonment or amount of
fine, the Court may take into account such factors as it may deem fit
and also the factors enumerated/mentioned in Section 32B of the Act.
Therefore, on fair reading of Section 32B of the Act, it cannot be said
                                                                            B
that while imposing a punishment higher than the minimum term of
imprisonment or amount of fine, the Court has to consider only those
factors which are mentioned/enumerated in Section 32B of the Act.
Identical question came to be considered by this Court in the case of
Rafiq Qureshi (Supra). While considering the statutory scheme
mentioned in Section 32B of the Act, it is observed and held that Court     C
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 and in addition
take into account the factors for imposing a punishment higher than the
minimum as enumerated in clauses (a) to (f) of Section 32B. It is further
                                                                            D
observed and held that quantity of the substance with which accused is
charged is a relevant factor, which can be taken into consideration while
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    E
      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).                                                               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              G
      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     H
450            SUPREME COURT REPORTS                          [2021] 4 S.C.R.


A           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
B
            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.
C                                 …      …     …
            18. The specific words used in Section 32B that Court may, in
            addition to such factors as it may deem fit clearly indicates that
            Courts discretion to take such factor as it may deem fit is not
            fettered by factors which are enumerated in clauses (a) to (f) of
D           Section 32B”.
             6.1 Therefore, quantity of substance would fall into “such factors
      as it may deem fit” and while exercising its discretion of imposing the
      sentence/imprisonment higher than the minimum, if the Court has taken
      into consideration such factor of larger/higher quantity of substance, it
E     cannot be said that the Court has committed an error. The Court has a
      wide discretion to impose the sentence/imprisonment ranging between
      10 years to 20 years and while imposing such sentence/imprisonment in
      addition, the Court may also take into consideration other factors as
      enumerated in Section 32B (a) to (f). Therefore, while imposing a
F     punishment higher than the minimum sentence, if the Court has
      considered such factor as it may deem fit other than the factors
      enumerated in Section 32B (a) to (f), the High Court has to only consider
      whether “such factor” is a relevant factor or not.
             6.2 Applying the aforesaid principles of law to the facts of the
G     case on hand, it is required to be considered whether in the facts and
      circumstances of the case the sentence of 15 years R.I. with fine of
      Rs.2 Lakhs imposed by the Learned Special Court and confirmed by the
      High Court require interference by this Court? While considering the
      request made on behalf of the accused to award lesser punishment and
      to take lenient view while sentencing him, the Special Court in fact has
H
              GURDEV SINGH v. STATE OF PUNJAB                                 451
                      [M. R. SHAH, J.]

taken into consideration the relevant facts/factors while not imposing        A
the maximum punishment of 20 years R.I. and awarding the sentence of
15 years R.I. Therefore, as such, it cannot be said that the Special Court
has not 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         B
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           C
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/         D
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 commercial quantity is 250 gm. Therefore, the accused         E
was found to be in possession of 4 times higher than the minimum
commercial quantity and therefore, the sentence imposed by the Learned
Special Court imposing the sentence of 15 years R.I. with fine of Rs.2
lakhs, confirmed by the High Court is not required to be interfered with
by this Court. It cannot be said that while imposing such punishment the
Court has taken into consideration any irrelevant factors.                    F

       7. 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         G
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      H
452            SUPREME COURT REPORTS                           [2021] 4 S.C.R.


A     more/higher than the commercial quantity. At this stage, the statement
      of objects and reasons for enactment of NDPS Act are required to be
      referred to. Before the NDPS Act 1965 was enacted, the statutory control
      over narcotic drugs was exercised in India through number of Central
      and State enactments viz. — The Opium Act, 1857, (b) the Opium Act,
      1878 and (c) The Dangerous Drugs Act, 1930. However, with the
B
      passage of time and developments in the field of illicit drug traffic and
      drug abuse at national and international level it was noticed and found
      that (i) The scheme of penalties under the aforesaid ACTS was not
      sufficiently deterrent to meet the challenge of well-organized gangs of
      smugglers; (ii) The country has for the last few years been increasingly
C     facing the problem of transit traffic of drugs coming mainly from
      the neighboring countries and destined mainly to Western countries; (iii)
      During recent years new drugs of addiction which have come to be
      known as psychotropic substances have appeared on the scene and
      posed serious problems to national governments. Therefore with a view
      to overcome the aforestated deficiencies the NDPS Act, 1985 came to
D
      be enacted. That thereafter to check the menace 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.
E            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
F     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
G     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 serious and alarming proportions in the recent
      years. Therefore, it has a deadly impact on the society as a whole.
      Therefore, while awarding the sentence/punishment in case of NDPS
H     Act, the interest of the society as a whole is also required to be taken in
                GURDEV SINGH v. STATE OF PUNJAB                              453
                        [M. R. SHAH, J.]

consideration. Therefore, while striking balance between the mitigating      A
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/punishment in the
                                                                             B
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.                                                          C
       8. In view of the above and for the reasons stated hereinabove,
there is no substance in the present appeal and the same deserves to be
dismissed and is accordingly dismissed.

Devika Gujral                                            Appeal dismissed.
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