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CASE NO.: Appeal (crl.)  1468 of 2003 Special Leave Petition (crl.)  2827 of 2003

PETITIONER: Union of India                                           

RESPONDENT: Kuldeep Singh                                            

DATE OF JUDGMENT: 08/12/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT,J

       Leave granted.          The Union of India questions legality, desirability and  proprietary of reducing sentence after conviction as done by the  Rajasthan High Court in the impugned judgment. The respondent was found  guilty of offences punishable under Section 9A/25A and 9A/25A read with  Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985  (in short the ’Act’).

       Factual background which led to trial of the respondent is  essentially as follows:

       Shri R.P. Sharma, Director of Narcotics Control Bureau, Jodhpur  received a confidential information on telephone in the night dated  12.12.1995 about illicit transactions of Acitic N Hydrite and on the  basis of it he constituted a team of officers of the Department vide  order Exb.P-1 and the team along with the Director, Narcotics Control  Bureau, Jodhpur started for Sri Ganganagar at 21.00 hours. Dr. R.P.  Sharma informed officers of the team that one thousand litre Acitic N  Hydride has been reportedly concealed in a Kachha Kotha (unripe-room)  constructed in the field situated on the way of village Bhagasar Aborlya  and village Chak Maharajka or in the nearby area. B.S. Vasistha (PW-1)  was appointed as the seizing officer and he was ordered to execute the  proceedings. In compliance thereof he reached on the site on 13.12.95 at  about 6.30 hours, called independent witnesses Tiku Ram and Sakata Ram  and made inquiries about the Kotha constructed in the field situated on  the way of Bhagasar and Chak Maharajka village. He came to know that the  Kotha belongs to accused-respondent Kuldeep Singh and the agriculture  field has been given to one Fateh Mohammad for cultivation, whereupon  Fateh Mohammad was called and interrogated. He informed that the Kotha  belongs to accused-Kuldeep Singh. Thereupon Kuldeep Singh was called  from his house and the closed Kotha was opened by the accused wherein  forty four plastic containers kept under the chaff of wheat were found.  Out of them 43 containers were of black colour and one was of white  colour. When the licence in respect of keeping and bringing Acitic N  Hydride was demanded from the accused, same was not produced. In the  presence of Panchas and Kuldeep Singh, B.S. Vasistha divided 44  containers in two-two batches and marked them separately, which on  weighing came to 880 litres of Acitic N Hydride. Two samples from each  of the lots were taken in glass bottles and marks were made thereon and  the remaining materials were seized separately and sealed. On the seal  labels affixed on each container signatures of accused-Kuldeep Singh and  the panch witnesses were obtained. The accused was given notice in  respect of recording his statement, which was recorded, and he was

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arrested. The material was kept in Kotwali, Ganganagar for safety. The  seized samples and the material articles were deposited in the malkhana  of the Narcotics Control Bureau, Jodhpur. The report under Section 57  was forwarded to the higher authorities. The samples were sent for  examination. The search of accused’s house was conducted on 24.11.95  wherein one diary and one inland letter were found and seized. Therefrom  it appeared that the other accused persons Major Singh and Jagtar Singh  had relations with him and they were participants in this conspiracy.  Information was sent to the higher authorities. The recovered article  was found to be Acitic N Hydride from the report of Revenue Control  Laboratory. After investigation the challan was filed against the  accused under Section 9A read with Section 25A and Section 29 of the  Act. The charges under Sections 9A/25A and Sections 9A/25A read with  Section 29 of the Act were framed, read over and explained to accused- Kuldeep Singh, who denied the charge and claimed trial. Evidences of ten  witnesses were recorded and the statement of the accused was recorded  under Section 313 of the Code of Criminal Procedure, 1973 (in short the  ’Code’). He was convicted and sentenced as noted supra.            In the appeal filed before the High Court, the accused as  appellant did not seriously question the conviction, but took the stand  that sentence of 10 years rigorous imprisonment on each of the  convictions and fine of Rs.1,00,000/- on each ground with default  stipulation of one year is the maximum sentence which has been awarded  by the trial Court. This was not a case where the maximum sentence  should have been awarded. As there is no provision for awarding any  minimum sentence for both the charges and the provisions only stipulated  maximum sentence of 10 years imprisonment and fine upto Rs.1,00,000/-,  the maximum sentences both custodial and fine should not have been  imposed. It was pointed out that the trial Court had not considered this  aspect and merely on the ground that 880 litres of the contraband had  been recovered and the quantity of heroine which could have been made  therefrom should not have weighed for awarding the maximum sentence.  With reference to the submissions made before the trial Court, it was  pointed out that the father of the accused is a person of 85 years of  age and the mother had expired four months earlier and there is no other  earning member. Further, it was pointed out that the accused had also  remained in custody for six and half years and, therefore, the custodial  sentence should be reduced to the period undergone and fine imposed  should also be reduced. The High Court noticed the factual position and  held that the conviction has been rightly made but taking note of the  fact that there was no evidence to show that the accused was a habitual  offender the sentence was reduced to the period of custody undergone  which was taken to be 6 = years, and the fine was also reduced to  Rs.25,000/- on each count. The reduction in sentence is assailed in the  present appeal.

       Learned counsel for the appellant submitted that the leniency  shown by the High Court in essence amounts to showing misplaced  sympathy. The Act was enacted to curb growing menace of the illicit drug  traffic and drug abuse. The factors which weighed with the High Court to  reduce sentence had no rationale with the object sought to be achieved  by imposing stringent punishments. The prayer therefore was to restore  the sentence awarded by the trial Court.  

       In response, learned counsel for the accused submitted that the  legislative intent is clear from the fact that no minimum sentence is  prescribed and the sentence to be awarded is discretionary. The Court  has power to impose appropriate sentence looking into the facts of a  particular case. In the case at hand, the High Court has taken note of  several relevant factors in directing reduction of sentence and this is  not a fit case where jurisdiction under Article 136 of the Constitution  of India, 1950 (in short the ’Constitution’) is to be exercised.  

       Before dealing with the respective submissions it would be

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appropriate to take a journey along the legislative history leading to  enactment of the Act. The statutory control over narcotic drugs was  earlier exercised through a number of Central and State enactments. The  principal Central enactments were the Opium Act, 1857, the Opium Act,  1878 and the Dangerous Drugs Act, 1930 which had become more or less  obsolete, and practically ineffective in combating the ever-growing  menace of illicit drug traffic and drug abuse, both at the national and  international levels. In the Statement of Objects and Reasons leading to  enactment of the Act it was clearly noticed that during recent years new  drugs of addiction which are commonly known as psychotropic substances  have appeared on the scene and posed serious problems endangering the  health and safety of the citizens seriously eroding the morale of the  society. The devastating effects of narcotic drugs on any person who  comes to its touch are too well known. Normally, such a person ceases to  be a normal human being, and is more or less reduced to a zombie living  animal existence and rushing fast to meet the maker. Divine qualities of  an individual who consumes narcotic drugs disappear and they are the  first sacrifices one normally makes while falling prey to use of drugs.  Anxiety of the legislature is to prevent the adverse affect of such  drugs and substances on the society. The Act like any other enactment  aims at regulating human conduct. Drugs abuse and drugs addiction are  corroding the health fabric of the society. The efficacy of the Act  depends on its implementation and a proper use of it to meet the  challenges posed by the drug traffickers and smugglers and their tribe.  The law has been made very stringent and, therefore, this court had  occasion to highlight the need for strict compliance with the  requirements of the Act.           In that background the sufficiency of sentence in the case at hand  has to be gauzed. Law regulates social interests, arbitrates conflicting  claims and demands.  Undoubtedly, there is a cross cultural conflict  where living law must find answer to the new challenges and the courts  are required to mould the sentencing system to meet the challenges. The  contagion of lawlessness would undermine social order and lay it in  ruins. Friedman in his "Law in Changing Society" stated that, "State  of criminal law continues to be \026 as it should be \026 a decisive  reflection of social consciousness of society".  Therefore, in  operating the sentencing system, law should adopt the corrective  machinery or the deterrence based on factual matrix.  By deft modulation   sentencing process be stern where it should be, and tempered with mercy  where it warrants to be. The facts and given circumstances in each case,  the nature of the crime, the manner in which it was planned and  committed, the motive for commission of the crime, the conduct of the  accused, and all other attending circumstances are relevant facts which  would enter into the area of consideration.   

Undue sympathy to impose inadequate sentence would do more harm to  the justice system to undermine the public confidence in the efficacy of  law and society could not long endure under such serious threats.  It  is, therefore, the duty of every court to award proper sentence having  regard to the nature of the offence and the manner in which it was  executed or committed etc. This position was illuminatingly stated by  this Court in Sevaka Perumal etc. v. State of Tamil Naidu (AIR 1991 SC  1463).                    

The criminal law adheres in general to the principle of  proportionality in prescribing liability according to the culpability of  each kind of criminal conduct. It ordinarily allows some significant  discretion to the Judge in arriving at a sentence in each case,  presumably to permit sentences that reflect more subtle considerations  of culpability that are raised by the special facts of each case.   Judges in essence affirm that punishment ought always to fit the crime;  yet in practice sentences are determined largely by other  considerations. Sometimes it is the correctional needs of the

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perpetrator that are offered to justify a sentence. Sometimes the  desirability of keeping him out of circulation, and sometimes even the  tragic results of his crime. Inevitably these considerations cause a  departure from just desert as the basis of punishment and create cases  of apparent injustice that are serious and widespread.  

       Proportion between crime and punishment is a goal respected in  principle, and in spite of errant notions, it remains a strong influence  in the determination of sentences. The practice of punishing all serious  crimes with equal severity is now unknown in civilized societies, but  such a radical departure from the principle of proportionality has  disappeared from the law only in recent times. Even now for a single  grave infraction drastic sentences are imposed. Anything less than a  penalty of greatest severity for any serious crime is thought then to be  a measure of toleration that is unwarranted and unwise. But in fact,  quite apart from those considerations that make punishment unjustifiable  when it is out of proportion to the crime, uniformly disproportionate  punishment has some very undesirable practical consequences.            

After giving due consideration to the facts and circumstances of  each case, for deciding just and appropriate sentence to be awarded for  an offence, the aggravating and mitigating factors and circumstances in  which a crime has been committed are to be delicately balanced on the  basis of really relevant circumstances in a dispassionate manner by the  Court.  Such act of balancing is indeed a difficult task.  It has been  very aptly indicated in Dennis Councle MCGDautha v. State of  Callifornia: 402 US 183: 28 L.D. 2d 711 that no formula of a foolproof  nature is possible that would provide a reasonable criterion in  determining a just and appropriate punishment in the infinite variety of  circumstances that may affect the gravity of the crime.  In the absence  of any foolproof formula which may provide any basis for reasonable  criteria to correctly assess various circumstances germane to the  consideration of gravity of crime, the discretionary judgment in the  facts of each case, is the only way in which such judgment may be  equitably distinguished.

The object should be to protect the society and to deter the  criminal in achieving the avowed object to law by imposing appropriate  sentence. It is expected that the Courts would operate the sentencing  system so as to impose such sentence which reflects the conscience of  the society and the sentencing process has to be stern where it should  be.   Imposition of sentence without considering its effect on the  social order in many cases may be in reality a futile exercise. The  social impact of the crime, e.g. where it relates to offences relating  to narcotic drugs or psychotropic substances which have great impact not  only on the health fabric but also on the social order and public  interest, cannot be lost sight of and per se require exemplary  treatment. Any liberal attitude by imposing meager sentences or taking  too sympathetic view merely on account of lapse of time or personal  inconveniences in respect of such offences will be result-wise counter  productive in the long run and against societal interest which needs to  be cared for and strengthened by string of deterrence inbuilt in the  sentencing system.  

In Dhananjoy Chatterjee v. State of W.B. (1994 (2) SCC 220), this  Court has observed that shockingly large number of criminals go  unpunished thereby increasingly, encouraging the criminals and in the  ultimate making justice suffer by weakening the system’s creditability.  The imposition of appropriate punishment is the manner in which the  Court responds to the society’s cry for justice against the criminal.  Justice demands that Courts should impose punishment befitting the crime  so that the Courts reflect public abhorrence of the crime.  The Court  must not only keep in view the rights of the criminal but also the

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rights of the victim of the crime and the society at large while  considering the imposition of appropriate punishment.

Similar view has also been expressed in Ravji v. State of  Rajasthan, (1996 (2) SCC 175). It has been held in the said case that it  is the nature and gravity of the crime but not the criminal, which are  germane for consideration of appropriate punishment in a criminal trial.   The Court will be failing in its duty if appropriate punishment is not  awarded for a crime which has been committed not only against the  individual victim but also against the society to which the criminal and  victim belong.  The punishment to be awarded for a crime must not be  irrelevant but it should conform to and be consistent with the atrocity  and brutality with which the crime has been perpetrated, the enormity of  the crime warranting public abhorrence and it should "respond to the  society’s cry for justice against the criminal".  

       An offence relating to narcotic drugs or psychotropic substances  is more heinous than a culpable homicide because the latter affects only  an individual while the former affects and leaves its deleterious impact  on the society, besides shattering the economy of the nation as well.   That the legislature intended to make the offences under the Act so  serious to be dealt with sternly and with an iron hand is made clear by  providing for enhanced penalties, including even death sentence, in  certain class of cases, when convicted for the second time.  

It is true as contended by learned counsel for the respondent- accused that no minimum sentence is prescribed, but the sentence imposed  should fit in with the gravity of offence committed but in the teeth of  the other indications in the enactment, mere absence of a provision for  minimum sentence is no reason or justification to treat the offences  under the Act as any less serious as assumed by the High Court. It was  highlighted by learned counsel for the respondent that the Court had a  discretion which according to him has been rightly exercised. The High  Court seems to wholly misdirected itself not only as to the seriousness  of the offences but also with reference to the relevant consideration  which should weigh with the Court in exercising its discretion.   

       Discretion is to know through law what is just. Where a Judge has  and exercises a judicial discretion his order is unappealable unless he  did so under a mistake of law or fact or in disregard of principle, or  after taking into account irrelevant matters. It will help to show this  if it can be shown that there were no materials on which he could  exercise his discretion in the way he did.  Not any one of the reasons  attempted to be enumerated by the High Court in this case could in law  be viewed as either relevant or reasonable reasons carrying even any  resemblance of nexus in adjudging the quantum of punishment in respect  of an offence punishable under the Act.            When any thing is left to any person, Judge or magistrate to be  done according to his discretion, the law intends it must be done with  sound discretion, and according to law. (See Tomlin’s Law Dictionary) In  its ordinary meaning, the word "discretion" signifies unrestrained  exercise of choice or will; freedom to act according to one’s own  judgment; unrestrained exercise of will; the liberty of power of acting  without other control than one’s own judgment. But, when applied to  public functionaries, it means a power or right conferred upon them by  law, of acting officially in certain circumstances according to the  dictates of their own judgment and conscience, uncontrolled by the  judgment or conscience of others. Discretion is to discern between right  and wrong; and therefore whoever hath power to act at discretion, is  bound by the rule of reason and law. (See Tomlin’s Law Dictionary).

Discretion, in general, is the discernment of what is right and  proper.  It denotes knowledge and prudence, that discernment which  enables a person to judge critically of what is correct and proper

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united with caution; nice discernment, and judgment directed by  circumspection; deliberate judgment; soundness of judgment; a science or  understanding to discern between falsity and truth, between wrong and  right, between shadow and substance, between equity and colorable  glosses and pretences, and not to do according to the will and private  affections of persons. When it is said that something is to be done  within the discretion of the authorities, that something is to be done  according to the rules of reason and justice, not according to private  opinion; according to law and not humour. It is to be not arbitrary,  vague, and fanciful, but legal and regular.  And it must be exercised  within the limit, to which an honest man, competent to the discharge of  his office ought to confine himself (Per Lord Halsbury, L.C., in Sharp  v. Wakefield, (1891) Appeal Cases 173).  Also (See S.G. Jaisinghani v.  Union of India and Ors. (AIR 1967 SC 1427).   

       The word "discretion" standing single and unsupported by  circumstances signifies exercise of judgment, skill or wisdom as  distinguished from folly, unthinking or haste; evidently therefore a  discretion cannot be arbitrary but must be a result of judicial  thinking. The word in itself implies vigilant circumspection and care;  therefore where the legislature concedes discretion it also imposes a  heavy responsibility.

"The discretion of a Judge is the law of tyrants; it is always  unknown. It is different in different men. It is casual, and depends  upon constitution, temper, passion. In the best it is often times  caprice; in the worst it is every vice, folly, and passion to which  human nature is liable," said (Lord Camden, L.C.J., in Hindson and  Kersey (1680) 8 How, St. Tr.57.)

If a certain latitude or liberty accorded by statute or rules to a  judge as distinguished from a ministerial or administrative official, in  adjudicating on matters brought before him, it is judicial discretion.  It limits and regulates the exercise of the discretion, and prevents it  from being wholly absolute, capricious, or exempt from review.  

Such discretion is usually given on matters of procedure or  punishment, or costs of administration rather than with reference to  vested substantive rights. The matters which should regulate the  exercise of discretion have been stated by eminent judges in somewhat  different forms of words but with substantial identity.  When a statute  gives a judge a discretion, what is meant is a judicial discretion,  regulated according to the known rules of law, and not the mere whim or  caprice of the person to whom it is given on the assumption that he is  discreet (Per Willes J. in Lee v Budge Railway Co., (1871) LR 6 CP 576,  and in Morgan v. Morgan, 1869, LR 1 P & M 644).  

       As indicated supra, the discretion does not appear to have been  judiciously and judicially exercised by the High Court in this case.  When the volume of contraband articles is taken note of, it is  sufficient for a conclusion that the quantity of finished product out of  it which would have been extracted it would have been nearly 300  kilograms of heroine, and the accused would have got about forty  kilograms as admitted by him. The disastrous effect (of this quantity of  heroin) would be mind-boggling. The High Court seems to have been swayed  by the age of accused’s father, his family problems and more importantly  he being not a "habitual offender". Such considerations are really  meaningless when one considers the fact that the accused was in  possession of contrabands which would have destroyed the health and  mental equilibrium of thousands of people. The Court was not dealing  with an accused charged with commission of any minor offence where he  being not a habitual offender may have some relevance. But it is really  inconsequential for a drug trafficker and smuggler. The reasons given by  the High Court to reduce the sentence, according to us, have no

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foundation. The inevitable conclusion is that the appeal deserves to be  allowed which we direct. To put it differently, the sentence imposed by  the trial Court is restored. The respondent has been released pursuant  to the High Court’s judgment. He shall surrender to custody to suffer  remainder of the sentence as awarded by the trial Court. The appeal is  allowed.