The Punjab and Haryana High Court has suspended the sentence of a Haryana man convicted under the NDPS Act, and held that cultivation of poppy plants cannot be mechanically treated as involving “commercial quantity” for imposing the Act’s harshest punishment provisions.
In a significant ruling on the distinction between “opium” and “poppy plants”, the high court asserted that the trial court had committed a “patent illegality” by sentencing the accused to 20 years’ rigorous imprisonment under Section 18(b) of the NDPS Act after treating 152 opium poppy plants weighing 11.560 kg as “commercial quantity”.
The division bench of Justice Anoop Chitkara and Justice Sukhvinder Kaur held that offences involving cultivation of opium poppy plants were covered under Section 18(c) of the NDPS Act, for which the maximum punishment could extend only up to 10 years.
“The judicial discretion is to prescribe a sentence less than the maximum if there is no mandatory minimum, but not even a day more than the maximum,” the bench asserted.
The ruling came on an appeal filed by accused against his conviction in an FIR registered at the Panipat Sadar police station in March 2019. According to the prosecution, the police had allegedly found 152 poppy plants growing on a plot belonging to the accused’s sister.
The trial court had convicted him under Section 18(b) of the NDPS Act and sentenced him in January this year to 20 years’ rigorous imprisonment along with a fine of Rs 2 lakh.
Taking exception to the approach adopted by the trial court, the high court noted that Section 18 of the NDPS Act dealt separately with “opium poppy” and “opium”. Referring to the Central Government notification dated October 19, 2001, the bench pointed out that the notification itself clarified that “small quantity” and “commercial quantity” were not separately specified for cultivation of opium poppy because such offences were covered under Section 18(c).
The bench observed that the trial court had relied upon the notified commercial quantity applicable to “opium” and wrongly applied it to poppy plants.
“A perusal of the judgment clearly indicates that the accused was convicted and sentenced under Section 18(b) of the NDPS Act, but no reasoning has been mentioned on how the offense would fall under the said sub-clause. Thus, there is a patent illegality that must be addressed initially,” the bench held.
The high court further invoked Article 20(1) of the Constitution protecting citizens against imposition of penalties beyond what the law prescribes.
“Whenever the statute prescribes an upper limit on the sentence, no one can award a sentence even for one extra day,” the bench observed.
Holding that continuation of incarceration under an apparently impermissible sentencing provision would be unjustified, the high court suspended the sentence and ordered the appellant’s release on bail on furnishing bonds.
The bench clarified that it was not interfering with the findings on guilt at the present appellate stage, but remanded the matter to the trial court for a limited reconsideration on the question of the applicable penal provision and sentence.
“We could have also taken the sentence for 10 years in the present appeal, but that would have been partly interfering with or tinkering with the judgment of conviction, which can only be done at the stage of final appeal,” the bench observed.
Allowing the appeal partly, the high court directed that the reasoning on conviction would continue, but the trial court would rehear the parties specifically on the question of sentencing and determine which clause of Section 18 was actually attracted in the case.
The bench also asked the trial court to expedite the proceedings.
