Cannabis has been a part of India since the era of the Atharvaveda, dating back to a few hundred BC. In fact, until 1985, ‘charas’ and ‘ganja’- forms of cannabis used for recreational purposes – were totally legal in India and were as common as alcohol. However, in 1985, the Rajiv Gandhi government succumbed to American pressure and declared narcotics to be an illegal entity. Approved by both the Houses and the then President Giani Zail Singh, the NDPS Act came into action in 1985. The Narcotic Drugs and Psychotropic Substances Acct, 1985, or the NDPS Act is an Act of the Parliament of India that was introduced to check a person from producing, manufacturing, selling, purchasing, dealing or consuming any narcotics.
When can the offender be punished?
The Act observes, at length, various punishments to be imposed in cases such as consumption of narcotics, trading of psychotropic substances, etc.
Section 32 under this act talks about punishments for offences not covered specifically. While the directives are simple enough, 32 B has often raised questions and significantly contributed to landmark cases in history. It majorly covers imposing punishment higher than the minimum punishment. If an offender is found to resort to violence, holds public office and has taken advantage of his position, affects minors, educational institutions or is involved in other illegal activities facilitated through this crime, he/she can be sentenced for longer terms than those defined as a minimum under the Act.
Does the quantity of narcotic substance qualify as a relevant factor to award punishments under 32B?
A simple answer to this can be found in the Supreme Court’s judgement in Rafiq Qureshi vs. Narcotic Control Bureau, Eastern Zonal Unit. Herein, while Rafiq Qureshi was awarded imprisonment of 16 years, he pleaded that the minimum sentence allowed according to the Act was 10 years. Also, he fulfilled none of the criterion under Section 32 B to be imposed with punishments greater than the minimum. However, his plea was only partially admitted. The Apex Bench consisting of Justice Ashok Bhushan and Justice K M Joseph observed that the quantity of narcotic substances above the commercial quantities was a very relevant factor in determining the imprisonment period. To quote the judgement, “Court may, in addition to such factors as it may deem fit…”.
This highlights the fact through the clauses in the Section are a directive, but the court is not limited to those six factors while awarding punishment higher than minimum punishment. The Court modified his punishment to 12 years of imprisonment along with 2 Lakh rupees he was to pay initially.
What is, and is not covered under section 32 B?
As per Section 32 B of the NDPS Act, the following six situations call for punishment exceeding maximum,
(a)the use or threat of use of violence or arms by the offender;
(b) the offender holds a public office and that he has taken advantage of that office;
(c) the fact that the minors are affected by the offence;
(d) the fact that the offence is committed in an educational institution;
(e) the fact that the offender belongs to organised international or any other criminal group; and
(f) the fact that the offender is involved in other illegal activities facilitated by the commission of the offence
This wording were exploited during the Ram Asre vs. the State of U.P. case. In the instant case while Ram Asre was sentenced to prison for over 10 years, he appealed on the basis of the observations made in Mukhtar Islam vs. State of U.P. Originally, Mukhtar Islam received an imprisonment period greater than 10 years based on the amount of heroin abdicated. However, later on, his appeal was accepted. On this front, S.C observed that this was because the original case was made on the total recovered contraband substance rather than the total amount of heroin present in the recovered contraband substance. A similar ruling made news in 2011 in the case of Harjit Singh vs. the State of Punjab.
To conclude with, one must remember this particular detail observed by the SC that goes as follows, “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 may consider only the amount of narcotics recovered in total and not the total amount of the impure substance. Though this can be used to fight against Section 32 B of the NDPS, there is not fixed rule to steer by. The judgement lies in the hands of the bench and it is the job of the defending counsel to convince the bench of innocence or lack of enormous offence. The bench, in no way, is limited by the clauses mentioned the section in consideration.