The Supreme Court held that distinct NDPS offences can attract separate punishments. However, when sentences run concurrently, fines must also be concurrent, preventing multiple fines for the same transaction and avoiding cumulative penalties.
NEW DELHI: The Supreme Court, in Hem Raj v. State of Himachal Pradesh, clarified that separate punishments can be awarded for offences under Section 20(b)(ii)(C) on one side and Sections 25 and 29 of the NDPS Act on the other, since these are distinct offences created by the statute. Sections 25 and 29 are not merely “add‑ons” without independent penal consequences but are offences that attract the same punishment as the principal offence, by way of legislative reference. However, when the two sets of punishments are ordered to run concurrently, the fine component must also be concurrent.
The Court held that the appellant cannot be made to pay two separate fines for two offences arising from the same transaction where the sentences of imprisonment are already directed to run concurrently.
The decision thus reinforces the principle that where sentences are concurrent, the award of fine should not be treated as cumulative, and that any default‑imprisonment arising from non‑payment of that single fine is to be viewed as a penalty, not a separate sentence.
Facts of the Case
At around 3:50 a.m. on 22 December 2014, a police squad was performing Nakabandi (check‑post) duty at Tunnuhatti Police Barrier when a grey Maruti Esteem car bearing registration number PB‑65A‑9377 was noticed coming from the Banikhet side. The vehicle was stopped and checked. The driver, Kulwant Singh, disclosed that he was also the registered owner of the car, while the appellant Hem Raj was seated on the front passenger seat. On opening the window, the police noticed the smell of cannabis.
A search of the two occupants and the vehicle revealed a blue‑coloured carry bag placed below the leg space of the front seat, which contained eight transparent polythene packets holding black hard substance. A narcotic‑detection kit test confirmed the substance to be charas weighing 4 kg 100 g, which fell under the category of “commercial quantity” under the NDPS Act.
A criminal case was registered under Sections 20(b)(ii)(C), 25 and 29 of the NDPS Act, and a chargesheet was filed on 14 August 2015 before the Special Judge, Chamba Division. After trial, both Kulwant Singh and Hem Raj were convicted for possessing and transporting the commercial quantity of charas, and were sentenced to 12 years’ rigorous imprisonment with a fine of Rs 1,20,000 each for the offence under Section 20(b)(ii)(C), and to a further 12 years’ rigorous imprisonment with an identical fine for the offence under Sections 25 and 29, with the two terms ordered to run concurrently.
The High Court, while upholding the conviction, reduced the substantive sentence from 12 to 10 years for both offences, but retained separate fines of Rs 1,20,000 for each offence. Aggrieved by the separate imposition of fine, Hem Raj approached the Supreme Court in a special leave petition.
Arguments of the Parties
The learned counsel for the appellant, Mr. Ajay Marwah, did not challenge the conviction itself but focused on the sentencing structure. It was argued that Sections 25 and 29 of the NDPS Act are not independent offences but rather “extensions” of the main offence under Section 20(b)(ii)(C), and therefore do not warrant separate punishment. The appellant was not the owner of the vehicle; Kulwant Singh was, and the appellant was merely a passenger. Hence, it was contended that the appellant could not be said to have “knowingly permitted” the car to be used for the commission of an offence, and the applicability of Section 25 to him was misconceived.
Even assuming that Sections 25 and 29 applied, counsel argued that these provisions do not create an independent punishment; they merely refer to the penalty attached to the principal offence. Treating the same act as the basis for two separate punishments, even though the sentences of imprisonment were made concurrent, would amount to double punishment, which is prohibited by Section 71 of the Indian Penal Code, 1860. It was further submitted that since Section 53 IPC treats both imprisonment and fine as “punishments”, when the sentences of imprisonment are directed to run concurrently, the fine must also run concurrently. Imposing two separate fines for offences arising from the same transaction would be illogical and contrary to the principle of avoiding double jeopardy.
The learned counsel for the State, Mr. Bimlesh Kumar Singh, opposed these submissions. It was pointed out that the FIR was registered under Sections 20, 25 and 29 of the NDPS Act, invoking the offences of possession, transportation and conspiracy in respect of 4 kg 100 g of charas. The appellant had himself not challenged the conviction, and the High Court had already reduced the substantive sentence from 12 to 10 years in view of the fact that he had already served about nine years in prison and had a reportedly satisfactory conduct in jail.
It was submitted that Section 20(b)(ii)(C) prescribes a minimum of 10 years’ rigorous imprisonment and a fine of at least ₹1 lakh, extending up to 20 years’ imprisonment and a fine of ₹2 lakh when the quantity involved is commercial. The vehicle was used to transport narcotics, and both the appellant and Kulwant Singh acted in criminal conspiracy. Under Section 25, the “owner or occupier” of a conveyance who knowingly permits it to be used for committing an offence is punishable with the same punishment as is provided for that offence. Similarly, Section 29 provides that abetment or criminal conspiracy to commit an offence under Chapter IV of the NDPS Act is punishable with the punishment prescribed for that offence, overriding the limitations in Section 116 IPC.
The State also relied on Shahejadkhan Mahebubkhan Pathan v. State of Gujarat and Shantilal v. State of Madhya Pradesh, which hold that the term of imprisonment in default of payment of fine is not itself a sentence but a penalty arising from non‑payment of fine. It was further argued that the High Court had correctly imposed separate fines, and that the minimum statutory sentence of 10 years was rightly imposed, having regard to the serious social harms flowing from drug trafficking.
Issues before the Court
The Supreme Court crystallised the dispute around three main issues:
- Whether separate sentence for the offence under Section 20(b)(ii)(C) of the NDPS Act on the one hand, and for the offences under Sections 25 and 29 on the other, is permissible when both convictions arise from the same transaction?
- Whether offences under Sections 25 and 29 should be treated as part of the principal offence under Section 20 and therefore not attract an independent punishment?
- Whether the fines imposed separately for the two offences should be treated as concurrent along with the concurrent sentences of imprisonment, so that the convict is not made to pay double fine for a single course of conduct?
Court’s Analysis
The Court began by examining Sections 20, 25 and 29 of the NDPS Act read with Sections 53 and 116 of the IPC. Section 20(b)(ii)(C) prescribes a minimum of 10 years’ rigorous imprisonment and a fine of not less than Rs 1 lakh where the contravention relates to cannabis and involves commercial quantity. The Court noted that the conviction under Section 20(b)(ii)(C) was amply supported by the fact that the car was carrying 4 kg 100 g of charas, clearly within the commercial‑quantity threshold.
The Court next turned to Sections 25 and 29. Section 25 applies where a person who is the owner, occupier or in control of premises or conveyance knowingly permits that space or conveyance to be used for committing an offence under the NDPS Act. The Court observed that the appellant was an “occupier” of the car, sitting on the front seat from where the charas was recovered, and that this fact was sufficient to lay the foundation for Section 25. Even if the registered owner was Kulwant Singh, the appellant’s presence and occupation of the vehicle was enough to bring Section 25 into play.
Section 29, dealing with abetment and criminal conspiracy, provides that the punishment shall be the same as that prescribed for the principal offence, and that the provisions of Section 116 IPC do not apply. The Court recalled that criminal conspiracy is an independent offence in itself, and that the NDPS Act consciously overrides the IPC‑based limitations on punishment for abetment and conspiracy. In this case, the trial and appellate courts had recorded findings of criminal conspiracy between the appellant and Kulwant Singh, and the conviction on that count was not challenged.
The Court then addressed the contention that Sections 25 and 29 are not independent offences but “supplementary” to Section 20. Relying on the doctrine of “legislation by reference” or “incorporation by reference”, the Court held that the fact that Sections 25 and 29 refer to the punishment provided for the principal offence does not mean that no separate punishment is contemplated.
When the legislature provides that the person committing an offence under Section 25 or 29 “shall be punishable with the punishment provided for that offence”, it means that the full range of punishment for the principal offence is to be read into those sections. Thus, offences under Sections 25 and 29 are distinct and independent offences, even though they are parasitic in nature and usually arise alongside the principal offence.
However, the Court observed that where two offences, though distinct, arise from the same transaction and are sentenced to run concurrently, the objective is to avoid double punishment. Section 53 IPC enumerates death, imprisonment (rigorous or simple), forfeiture of property and fine as “punishments”. The Court reiterated that both imprisonment and fine are forms of punishment.
The default‑imprisonment clause, i.e., the additional short term in default of payment of fine, is not itself a sentence but a penalty that arises from non‑payment of a fine that is part of the sentence. In Shahejadkhan Mahebubkhan Pathan v. State of Gujarat, this Court had already held that the term of imprisonment in default of payment of fine is a penalty, not a separate sentence, but the fine itself is an integral part of the sentence.
Bringing this principle to the present case, the Court held that when the sentences of imprisonment for two offences are directed to run concurrently, the fine cannot be imposed twice. If the two offences arise from the same transaction and the substantive sentences are to be concurrent, imposing separate fines for each offence would amount to making the appellant pay double for the same conduct and would be inconsistent with the salutary rule that concurrent sentences are meant to avoid double jeopardy. The Court therefore agreed with the appellant’s contention that, although separate punishments are permissible for distinct offences under Sections 20, 25 and 29, once the sentences are ordered to run concurrently, the fine must also be treated as concurrent and not cumulative.
Case Title: Hem Raj v. State of Himachal Pradesh
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