M.R.SHAH, J. - (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 for the offence punishable under Section 21 of the Narcotic Drugs and 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 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.
(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 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 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 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 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 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 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 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 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 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. ;