By TIOL News Service

NEW DELHI, OCT 07, 2015: THE accused-respondents were chargesheeted under Section 8 read with Section 20 of the NDPS Act and accordingly, they were sent up for trial. Accused persons denied the accusations and claimed trial. The prosecution to substantiate its stand examined number of witnesses and brought in series of documents in evidence. The trial Judge taking note of the fact that Mushtaq Ahmad, the first respondent and Gulzar Ahmad, the second respondent were in possession of 6 kg. 200 gms and 4 kgs. of charas respectively and the prosecution had been able to establish the same, treated the contraband article as commercial quantity and accordingly found them guilty for the offence punishable under Section 20(b) (ii) (C) of the NDPS Act and eventually considering the gravity of the offence and the proliferating and devastating menace the drugs have been able to create in the society and keeping in view the need for eradication, sentenced each of them to suffer rigorous imprisonment for a period of 12 years and further to pay a fine of Rs.2 lakhs each and in case of default of payment of fine to undergo rigorous imprisonment for period of one year to one under Section 8 read with Section 20 (b) (ii) (B) of the NDPS Act.

On appeal, the High Court restricted the period of custody to the period already undergone, that is, slightly more than seven years and to pay a fine of Rs.25,000/- each with a modified default clause.

The State is in appeal against the High Court order.

Commercial quantity : The trial Judge had treated the seized contraband article falling within the definition of commercial quantity and accordingly found the accused persons guilty and imposed the sentence. He has taken note of the fact that the notification issued on 19.10.2001 clearly shows that more than one kilogram is commercial quantity.

The Supreme Court concluded and held that the seized item fell under the commercial quantity and hence the conviction recorded by the trial court under Section 20 (b) (ii) (C) is absolutely impeccable.

The Supreme Court quashed the High Court order and found the accused guilty of offence punishable under Section 20(b)(ii)(C) of the NDPS Act and each of them is sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 lac and, in default of payment of such fine, to suffer rigorous imprisonment for a further period of one year.

Minimum Punishment - When a minimum punishment is prescribed, no court can impose lesser punishment. : Section 20 (b) (ii) (C) stipulates that the minimum sentence will be ten years which may extend to twenty years and the minimum fine imposable is one lakhs rupees which may extend to two lakhs rupees. The provision also provides about the default clause which stipulates imposition of fine exceeding two lakh rupees, for the reasons to be recorded by the Court. When a minimum punishment is prescribed, no court can impose lesser punishment.

In Narendra Champaklal Trivedi v. State of Gujarat, while a submission was advanced that in exercise of power under Article 142 of the Constitution, that the Supreme Court can impose a lesser punishment than the prescribed one, the Court ruled that:-

"...where the minimum sentence is provided, we think it would not be at all appropriate to exercise jurisdiction under Article 142 of the Constitution of India to reduce the sentence on the ground of the so-called mitigating factors as that would tantamount to supplanting statutory mandate and further it would amount to ignoring the substantive statutory provision that prescribes minimum sentence for a criminal act..."

(See 2015-TIOL-233-SC-NDPS)