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Accused’s financial condition alone cannot be a mitigating factor while deciding sentence.

In the recent case of Gurdev Singh v. State of Punjab, the Supreme Court stated that merely because the accused is poor man or the sole bread winner of the family cannot be a mitigating circumstance in his/ her favor while awarding the punishment under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

According to the facts of the case, Appellant is the first-time convict and is a poor person and was only a carrier and 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.

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.

While imposing a punishment higher than the minimum term of the imprisonment or an amount of fine, the Court may take into account the factors enumerated in Section 32B of the Act referred to hereinabove. However, it is required to be noted that Section 32B of the Act itself further provides that the Court may, in addition to such factors as it may deem fit, take into account the factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine as mentioned in Section 32B of the Act.

Therefore, merely because the accused is a poor man and/or a carrier and/or is a sole bread earner cannot be such mitigating circumstances in favor of the accused while awarding the sentence/punishment in the case of NDPS Act. Even otherwise, in the present case, the Special Court, as observed hereinabove has taken into consideration the submission on behalf of the accused that he is a poor person; that he is sole bread earner, that it’s his first offence, while not imposing the maximum punishment of 20 years R.I and imposing the punishment of 15 years R.I. only.

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