Summary
Offences under Sections 25 and 29 of the NDPS Act are independent offences that attract separate punishment, borrowed by reference from the principal offence, so a separate sentence alongside Section 20(b)(ii)(C) was lawful; but where the sentences run concurrently the fine, being part of the sentence, cannot be exacted twice. The appellant, having served about 11 years including default imprisonment, was ordered to be released.
Issues
- Whether a convict can be separately sentenced for an offence under Section 20(b)(ii)(C) and for offences under Sections 25 and 29 of the NDPS Act, given that Sections 25 and 29 prescribe only 'the punishment provided for' the principal offence.
- Whether the appellant, who was an occupant but not the owner of the car, could be convicted under Section 25.
- Whether, where the sentences run concurrently, the fine imposed separately for each offence is payable twice.
Provisions considered
- Section 20(b)(ii)(C), Narcotic Drugs and Psychotropic Substances Act, 1985Quoted: possession or transport of a commercial quantity of cannabis is punishable with rigorous imprisonment of 10 to 20 years and fine of Rs. 1 lakh to 2 lakh. The appellant's conviction for 4.1 kg of charas under it was not challenged; the High Court reduced the sentence to 10 years. (¶¶ 2.1, 5.2, 7)
- Section 25, Narcotic Drugs and Psychotropic Substances Act, 1985Quoted: an owner or occupier, or person having control or use of a conveyance, who knowingly permits it to be used for an NDPS offence is punishable with the punishment for that offence. The appellant was an 'occupier' of the car; the provision creates a distinct offence attracting separate punishment. (¶¶ 5.2.1, 5.3, 5.5, 5.5.1, 5.6, 5.6.1, 6, 7)
- Section 29, Narcotic Drugs and Psychotropic Substances Act, 1985Quoted: abetment of, or conspiracy to commit, a Chapter IV offence is punishable with the punishment provided for the offence, notwithstanding Section 116 IPC. Abetment and conspiracy are independent offences, and the Section 116 limit on term is displaced. (¶¶ 5.2.2, 5.3, 5.7, 5.7.2, 5.8, 5.8.2, 6, 7)
- Section 116, Indian Penal Code, 1860Quoted: limits the term for abetment of an offence not committed to a fraction of the longest term; Section 29 of the NDPS Act removes this fetter for NDPS abetment. (¶¶ 5.7, 5.7.1, 5.7.2)
- Section 53, Indian Penal Code, 1860Lists fine as one of the punishments; hence fine is part of the sentence, and when sentences run concurrently the fine cannot be made payable twice. (¶¶ 9.1, 9.3)
Held
- Section 25 (allowing premises or conveyance to be used for an offence) creates a separate and independent offence, and abetment and criminal conspiracy under Section 29 are likewise independent offences; once established, they attract separate punishment and sentence. (¶¶ 5.6, 5.6.1, 5.7, 5.8.1, 5.8.2, 6)
- The phrase 'punishment provided for that offence' in Sections 25 and 29 is legislation by reference (and in effect incorporation): the punishment for the principal offence, such as under Section 20, is read into those sections. It does not mean that no separate punishment is contemplated. (¶¶ 6.1, 7, 7.1, 7.2)
- Section 25 covers an 'occupier' of a conveyance, not only its owner; the appellant, an occupant of the car from which the contraband was recovered, could be convicted under it, and his conviction under Section 29 was in any event unchallenged. (¶¶ 5.5, 5.5.1)
- Offences under Sections 25 and 29 often arise in the same transaction as a substantive Chapter IV offence and may be parasitic and derivative; while separate punishment may be imposed, courts should as a rule of wisdom direct such sentences to run concurrently, to avoid double punishment for one set of facts. (¶¶ 8, 8.1, 8.2)
- Imprisonment in default of fine is a penalty for non-payment and not a sentence, but the fine itself is part of the sentence (Section 53 IPC); where sentences run concurrently, the convict cannot be made to pay the fine twice. (¶¶ 9.1, 9.2, 9.3)
Result
Appeal disposed of; separate sentences under Sections 20(b)(ii)(C) and 25/29 upheld, but the appellant held not liable to pay the fine twice; as he had undergone about 11 years of imprisonment including default imprisonment, he was directed to be released forthwith unless required in any other case.