Hem Rajv.State of Himachal Pradesh

Legal Analysis: Hem Raj vs. State of Himachal Pradesh

Citation: 2026 INSC 332

Court: Supreme Court of India

Coram: Justice N.V. Anjaria

Judgment Author: Justice N.V. Anjaria

Date of Decision: April 8, 2026

Nature of Judgment: This is a judgment by a Single Judge Bench of the Supreme Court in its criminal appellate jurisdiction, arising from a Special Leave Petition against a common judgment of the High Court of Himachal Pradesh. The Court addressed the issue of whether separate punishment and fine could be imposed for offences under Section 20(b)(ii)(C) of the NDPS Act on one hand and under Sections 25 and 29 of the same Act on the other, when the convictions arose from the same transaction. The Court held that Sections 25 and 29 create independent offences and separate punishment is permissible, but clarified that when sentences are ordered to run concurrently, fine being part of the sentence cannot be imposed twice. The appellant, who had already undergone 11 years of imprisonment, was ordered to be released forthwith.

2. Basic Information of the Judgment

Case Title: Hem Raj vs. State of Himachal Pradesh

Criminal Appeal No.: Arising out of SLP (Crl.) No. 19691 of 2025

Bench: Justice N.V. Anjaria

Date of Decision: April 8, 2026

Citation: 2026 INSC 332

Appeal From: Common judgment and order dated 05.12.2023 of the High Court of Himachal Pradesh in Criminal Appeal No. 93 of 2020 and Criminal Appeal No. 230 of 2020

3. Legal Framework

This judgment involves the interpretation of sentencing provisions under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), particularly the interplay between the principal offence under Section 20 and the ancillary offences under Sections 25 and 29, as well as the principles of concurrent sentencing and double punishment under Section 71 of the Indian Penal Code, 1860.

A. Key Provisions of Law:

Narcotic Drugs and Psychotropic Substances Act, 1985:

• Section 20(b)(ii)(C): Punishment for contravention involving commercial quantity of cannabis – rigorous imprisonment not less than 10 years extendable to 20 years and fine not less than Rs. 1 lakh extendable to Rs. 2 lakhs.

• Section 25: Punishment for allowing premises, conveyance, etc., to be used for commission of an offence – punishable with the punishment provided for that offence.

• Section 29: Punishment for abetment and criminal conspiracy – punishable with the punishment provided for the offence (notwithstanding Section 116 IPC).

Indian Penal Code, 1860:

• Section 53: Punishments – death, imprisonment (rigorous or simple), forfeiture of property, fine.

• Section 71: Limit of punishment for offence made up of several offences – where an act constitutes several offences, the offender shall not be punished with a more severe punishment than the court could award for any one of such offences.

• Section 116: Abetment of offence punishable with imprisonment – if offence not committed, punishment is lesser; if offence committed, punishment as for the offence.

• Section 120B: Punishment for criminal conspiracy.

B. Related Precedents (Discussed in the Judgment):

• Shahejdakhan Mahebubkhan Pathan v. State of Gujarat (Citation not fully provided): Held that the term of imprisonment in default of payment of fine is not a sentence but a penalty incurred on account of non‑payment of fine.

• Shantilal v. State of M.P. (Citation not fully provided): Reiterated the same principle regarding default imprisonment.

• Gurdev Singh v. State of Punjab (Citation not fully provided): Discussed the deleterious impact of narcotic drugs on society.

• Gurdeep Singh v. State of Punjab (Citation not fully provided): Referred to earlier decisions to underline that conspiracy is an independent offence.

• State (NCT of Delhi) v. Navjot Sandhu (Citation not fully provided): Cited for the proposition that conspiracy is an independent offence.

• Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra (Citation not fully provided): Held that Section 120B IPC makes criminal conspiracy a substantive offence.

4. Relevant Facts of the Case

• Incident (22.12.2014): A police squad on Nakabandi duty at Tunnuhatti Police Barrier stopped a grey Esteem car (PB-65A-9377) at around 3:50 a.m. The driver was Kulwant Singh (owner), and the appellant Hem Raj was sitting on the front seat.

• Recovery of Contraband: Upon search, a blue carry bag containing eight transparent polythene packets with black hard substance (charas) was found below the leg space of the front seat occupied by the appellant. The total quantity was 4 kgs 100 gms, which is a commercial quantity.

• Trial and Conviction: The Special Judge, Chamba, convicted both accused under Sections 20(b)(ii)(C) and 25 read with Section 29 of the NDPS Act. On 16.11.2019, the appellant was sentenced to 12 years rigorous imprisonment and fine of Rs. 1,20,000/- (with default imprisonment of one year) for each offence, sentences to run concurrently.

• High Court Appeal: The High Court partly allowed the appeal, reducing the substantive sentence from 12 years to 10 years rigorous imprisonment, while confirming the remainder.

• Supreme Court Appeal: The appellant challenged the judgment on two grounds: (i) separate conviction and sentence under Sections 20, 25 and 29 was impermissible as they arose from the same transaction; (ii) fine could not be imposed separately for both offences when sentences were directed to run concurrently. The appellant did not challenge the conviction itself.

5. Issues Identified by the Supreme Court

• Whether separate punishment and sentence can be imposed for offences under Section 20(b)(ii)(C) on one hand and under Sections 25 and 29 of the NDPS Act on the other, when the convictions arise from the same transaction.

• Whether Sections 25 and 29 create independent offences or are merely parasitic/derivative of the principal offence under Section 20, thus not attracting separate punishment.

• Whether the fine imposed separately for the offences under Section 20 and under Sections 25/29 should be treated as cumulative or concurrent, given that the sentences of imprisonment were directed to run concurrently.

6. Ratio Decidendi (The Reasoning and Decision of the Court)

A. Sections 25 and 29 Create Independent Offences – Separate Punishment Permissible

The Court examined the scheme of Chapter IV of the NDPS Act. Sections 15 to 19, 21 to 24, and 20 each prescribe specific punishments for contraventions relating to different kinds of narcotic drugs and psychotropic substances. Section 25 deals with the offence of allowing premises, conveyance, etc., to be used for commission of an offence. Section 29 deals with abetment and criminal conspiracy. (Paras 5-5.3)

The Court held that the phraseology in Sections 25 and 29 – “punishable with the punishment provided for that offence” – does not mean that separate punishment is not contemplated. It is a case of “legislation by reference” (or incorporation) where the punishment prescribed for the principal offence is adopted for the ancillary offences. However, the offences themselves are distinct and independent. (Paras 6, 7, 7.2)

• Section 25: An offender may permit another person to use a house, conveyance, etc., to facilitate commission of an offence under the Act. This conduct is a distinct and independent offence. The appellant, being an “occupier” of the car (even if not the owner), could be convicted under Section 25. (Paras 5.5, 5.5.1, 6)

• Section 29: Abetment and criminal conspiracy are independent offences under the IPC as well. Section 29 of the NDPS Act overrides Section 116 IPC, removing the limitation on punishment. Criminal conspiracy is a substantive offence that can be punished even if the substantive offence does not materialise. (Paras 5.7-5.8.2)

Therefore, the appellant was rightly convicted and separately punished for offences under Sections 20, 25 and 29. The contention that separate punishment is impermissible was rejected. (Para 6.1)

B. Concurrent Running of Sentences – But Fine is Also Punishment, Cannot Be Doubled

While separate punishment is permissible, the Court noted that in most cases, offences under Sections 25 and 29 have a “connect and interaction” with the principal offence and may arise from the same transaction. They are “parasitic and derivative” in nature. Hence, even while imposing separate punishment, it is the “rule of wisdom” to order the sentences to run concurrently to avoid double jeopardy. In the present case, the High Court had already directed the sentences to run concurrently. (Paras 8, 8.1, 8.2)

However, the Court held that fine is a part of “punishment” under Section 53 IPC. When the sentences of imprisonment are directed to run concurrently, the appellant cannot be made to pay fine twice. The default imprisonment clause (imprisonment in default of payment of fine) is not a sentence but a penalty – as held in Shahejdakhan Pathan. But the fine amount itself is a sentence. Therefore, imposing fine separately for both offences would amount to double punishment. (Paras 9-9.3)

C. Relief to the Appellant

The appellant had already undergone 11 years of imprisonment (including default imprisonment) till January 2026, which exceeded the reduced sentence of 10 years. Since he was not required to pay double fine, and had already suffered the default imprisonment, the Court directed his immediate release from jail, unless required in any other case. (Paras 10, 10.1)

7. New Legal Principles Established / Reiterated

• Offences under Sections 25 and 29 of the NDPS Act are independent and separately punishable: Even though the punishment prescribed is by reference to the principal offence, the offences themselves are distinct. A person can be convicted and sentenced separately under Section 20 and under Sections 25/29 for the same transaction.

• “Occupier” under Section 25 includes a person sitting in a car (not necessarily the owner): The term “occupier” or “having the control or use” of a conveyance is broad enough to include a passenger who is present in the vehicle and from whose possession the contraband is recovered.

• Legislation by reference/incorporation within the same statute: When one section refers to the punishment provided in another section, it does not merge the offences; it merely adopts the quantum of punishment.

• Fine being part of punishment cannot be imposed cumulatively when sentences run concurrently: If a court orders sentences of imprisonment to run concurrently, and imposes separate fines for each offence, the total fine must be treated as a single punishment. The convict cannot be made to pay fine twice.

• Default imprisonment is not a sentence but a penalty: This principle from Shahejdakhan Pathan was reiterated. However, the fine amount itself remains a sentence.

8. The Court’s Analysis and Examination of Concepts

A. Distinction Between “Principal Offence” and “Ancillary Offences” under NDPS Act

The Court analysed the scheme of Chapter IV, noting that Sections 15-20, 21-24 create offences related to specific contrabands (poppy straw, coca, cannabis, manufactured drugs, psychotropic substances, etc.). Section 25 and 29 are “supplemental” provisions that criminalise acts that facilitate or enable the principal offences. However, the legislature has chosen to treat them as separate offences, as evidenced by their placement in separate sections and the use of the phrase “punishable with the punishment provided for that offence” rather than stating “no separate punishment shall be awarded.”

B. Doctrine of Legislation by Reference vs. Incorporation

The Court explained that Section 25 and 29 employ legislation by reference (or incorporation) – they refer to the punishment clause of the principal offence (e.g., Section 20) to determine the quantum of punishment. This is a common legislative technique to avoid repetition. It does not imply that the offence under Section 25 or 29 is not an independent offence. If the legislature had intended that no separate punishment should be awarded, it would have said so explicitly. (Para 7-7.2)

C. Conspiracy as an Independent Offence – Reiteration

The Court relied on Noor Mohammad and Navjot Sandhu to reiterate that criminal conspiracy under Section 120B IPC is a substantive offence. Section 29 of the NDPS Act makes the position even stricter by overriding Section 116 IPC, ensuring that abetment and conspiracy under the NDPS Act are punished with the same severity as the principal offence, regardless of whether the principal offence was actually committed. (Paras 5.8-5.8.2)

D. Concurrent Sentencing and Double Punishment – Application of Section 71 IPC

The Court held that when two offences arise from the same transaction and are interconnected, the sentences should be directed to run concurrently. However, the direction for concurrent running of imprisonment does not automatically apply to fine, because fine is a separate component of punishment. Nevertheless, to avoid double punishment (prohibited by Section 71 IPC), the court must ensure that the convict is not made to pay fine twice for essentially the same act. In this case, the appellant had already suffered the default imprisonment as well, and the total fine of Rs. 2,40,000/- (Rs. 1,20,000 x 2) would be oppressive. Hence, the Court directed that the fine should also be treated as concurrent, effectively requiring payment of only one fine amount (though the judgment does not explicitly reduce the fine, it orders release after noting that the appellant has already suffered default imprisonment). (Paras 9.3, 10)

9. Critical Analysis of the Judgment

Strengths

• Clarity on independent nature of Sections 25 and 29: The judgment provides a clear and authoritative interpretation that these sections create separate offences. This resolves a common contention raised by NDPS convicts that they cannot be punished twice for the same transaction.

• Practical guidance on concurrent sentencing of fine: By holding that fine, being part of punishment, should also be treated as concurrent when sentences run concurrently, the Court prevents unjust enrichment of the State and protects convicts from double financial burden.

• Humanistic approach: The appellant had already served 11 years (exceeding the 10-year reduced sentence). The Court’s direction for immediate release, without insisting on payment of the second fine, is a just outcome.

• Reiteration of the “occupier” concept: The Court correctly held that under Section 25, “occupier” includes a person who is physically present in the conveyance and has control over it, not just the registered owner. This prevents a loophole where passengers could claim they are not liable.

Potential Concerns / Critiques

• The judgment does not explicitly reduce the fine amount: The Court says “the appellant cannot be made to pay fine twice” and then directs release because he has already undergone default imprisonment. It does not explicitly state that the second fine of Rs. 1,20,000 is waived. This creates some ambiguity for the jail authorities. However, the direction to release forthwith implies that no further fine is required.

• Lack of discussion on whether the trial court’s separate fine for each offence was legal in the first place: The Court held that separate punishment is permissible, but did not discuss whether the trial court’s imposition of separate fine amounts (total Rs. 2.4 lakhs) exceeded the maximum fine prescribed for a single offence (Rs. 2 lakhs under Section 20(b)(ii)(C)). Since the total fine (Rs. 2.4 lakhs) exceeded Rs. 2 lakhs, there could be an argument that it violated Section 29(1) which says “punishable with the punishment provided for that offence” – meaning the total punishment (including fine) should not exceed the maximum prescribed for the principal offence. The Court did not address this nuance.

• The bench composition: The judgment is delivered by a Single Judge of the Supreme Court. Normally, criminal appeals from the High Court are heard by Division Benches. The absence of a second judge may raise questions about the binding precedent value, though a Single Judge order is still binding on lower courts.

• No discussion on Section 71 IPC explicitly: The Court mentioned Section 71 IPC in the submissions (para 4.1.2) but did not explicitly apply it in the reasoning. The conclusion on concurrent fine is consistent with Section 71, but a direct citation would have strengthened the judgment.

Impact

• NDPS prosecutions: Prosecutors can rely on this judgment to argue for separate convictions under Sections 25 and 29 in addition to the principal offence. Defence lawyers can no longer claim that these are not independent offences.

• Sentencing in NDPS cases: Courts must now ensure that when separate sentences are imposed for offences under Sections 20, 25 and 29 arising from the same transaction, the imprisonment terms are ordered to run concurrently. Moreover, the fine component should also be made concurrent to avoid double punishment.

• Release of long-serving convicts: Convicts who have served more than the minimum sentence and have paid one fine (or suffered default imprisonment) may seek release under this judgment, arguing that the second fine cannot be enforced.

10. Final Outcome

The Supreme Court disposed of the appeal with the following directions:

1. The conviction of the appellant under Sections 20(b)(ii)(C), 25 and 29 of the NDPS Act was upheld.

2. The separate punishment imposed for these offences was held to be permissible.

3. However, since the appellant had already undergone 11 years of imprisonment (including default imprisonment) as of January 2026, which exceeded the reduced sentence of 10 years, and since he could not be made to pay fine twice, he was ordered to be set at liberty forthwith unless required in any other offence.

4. The appeal was disposed of in the above terms.

11. Practical Application, Court Lines, and Legal Strategy

Use in Court (Practical Application)

• For an NDPS convict (defence): If you have been convicted under both the principal offence (e.g., Section 20) and under Sections 25 or 29 for the same transaction, argue that while separate conviction is permissible, the sentences of imprisonment must be directed to run concurrently. Further, argue that the fine should also be concurrent – you should not be required to pay separate fines for each offence. If you have already served the default imprisonment for non‑payment of one fine, you cannot be forced to pay the second fine. Cite this judgment.

• For the prosecution (State): When chargesheeting NDPS cases, include charges under Sections 25 and 29 along with the principal offence. This judgment confirms that separate conviction under these sections is valid and does not violate double jeopardy. However, ensure that the total punishment (including fine) does not exceed the maximum prescribed for the principal offence, or be prepared to argue that concurrent running of sentences will be ordered.

• For the trial court: When sentencing a convict for offences under Sections 20 and 25/29 arising from the same transaction, explicitly order that the sentences of imprisonment shall run concurrently. Also, state whether the fine amounts are to be cumulative or concurrent. To avoid ambiguity, impose a single fine amount (up to the maximum prescribed for the principal offence) and apportion it between the offences, rather than imposing separate fines.

• For the High Court (in appeal): If a convict challenges separate punishment under Sections 25/29, dismiss that ground following this judgment. However, if the convict has already served a long period (exceeding the minimum sentence) and has paid one fine or suffered default imprisonment, consider reducing the sentence to the period already undergone and waive the second fine.

Court Lines

“Section 25 and Section 29 insofar as they provide that the punishment for the respective offences mentioned therein is same which would be for the principal offence, is an instance of legislation by reference. … Given this legislative mandate, the contention has to be negotiated that no separate punishment and sentence is contemplated in respect of Section 25 and Section 29 of the Act.” (Para 7, 7.2)

“In a given case, an offender may have permitted the other person to use the house, room, space, place, animal or conveyance etc. to facilitate the commission of any offence under the Act. This conduct would fall squarely within Section 25 to become a distinct and independent offence by that person who so permits the use of house, conveyance etc. for the purpose of committing an offence by the other person.” (Para 6)

“It is well settled that conspiracy is an independent offence. … Section 120B, IPC makes criminal conspiracy a substantive offence which postulates an agreement between two or more persons to do or cause to be done an act by illegal means.” (Paras 5.8.1, 5.8.2)

“However, a riding clarification may be necessary. Even though punishment for the offences under Section 25 and Section 29 of the Act is separately contemplated and could be imposed independently and additionally, in a given case and in most of the cases these offences have a connect and an interaction with any of the main offences … it would be the rule of wisdom to be followed by the court that in such cases, the sentence is made to run concurrently.” (Para 8, 8.1)

“In the present case, the appellant is sentenced … to pay fine of ₹1,20,000/- and in default to undergo further rigorous imprisonment for one year. … In Shahejaddhan Mahebubkhan Pathan v. State of Gujarat, this Court observed that the term of imprisonment in default of payment of fine is not a sentence it is a penalty which a person incurs on account of non‑payment of fine. … What it implies is that … the amount of fine imposed required to be paid by the convict is a sentence and has to be treated as part of sentence. … In that view when the sentence is directed to run concurrently, the appellant cannot be made to pay fine twice.” (Para 9.2, 9.3)

Legal Strategy Insight

For the Defence (NDPS Convict):

• Step 1 – Identify whether you were convicted under both Section 20 (or similar principal offence) and Sections 25/29. If yes, check the sentencing order: were the sentences ordered to run concurrently or cumulatively? If cumulative, file an appeal arguing for concurrent running.

• Step 2 – Check the fine component. If separate fines were imposed, argue that total fine exceeds the maximum prescribed for the principal offence (e.g., Rs. 2 lakhs under Section 20(b)(ii)(C)). Cite Section 29(1) – “punishable with the punishment provided for that offence” – to argue that the total punishment (including fine) cannot exceed the maximum for the principal offence.

• Step 3 – If you have already served the default imprisonment for non‑payment of one fine, argue that you cannot be made to pay the second fine, as that would amount to double punishment. The default imprisonment served should be treated as satisfying the fine obligation for both offences.

• Step 4 – If you have already undergone imprisonment exceeding the minimum sentence (e.g., 10 years), file a petition for premature release or for setting off the excess period against the fine/default imprisonment. This judgment supports such relief.

For the Prosecution (State):

• When arguing for separate conviction under Sections 25/29, emphasise that these are independent offences. Use the “occupier” interpretation: any person who is in control of the conveyance (even as a passenger) and knowingly permits its use for drug trafficking can be convicted under Section 25.

• When arguing for separate fines, be cautious. The judgment suggests that separate fines may not be sustainable if the total exceeds the maximum for the principal offence. Instead, request the court to impose a single fine (up to the maximum) and apportion it between the offences, or argue that the convict should pay the total fine but the imprisonment sentences run concurrently.

• If the convict has served default imprisonment for one fine, do not insist on payment of the second fine if the total fine amount does not exceed the statutory maximum. The court may release the convict.

For the Trial Court (Sentencing):

• When convicting an accused under Sections 20 and 25/29 for the same transaction, pass a single composite sentence for all offences, with a single fine amount not exceeding the maximum prescribed for the principal offence. For example, under Section 20(b)(ii)(C), the maximum fine is Rs. 2 lakhs. Impose a fine of, say, Rs. 1.5 lakhs for all offences collectively, rather than Rs. 1 lakh for each offence.

• Explicitly order that the sentences of imprisonment shall run concurrently. Also state that the fine is a single amount payable once.

• If the convict is indigent, consider waiving the fine or allowing payment in instalments, but record reasons.

For the High Court (Appellate):

• When an NDPS convict appeals against separate punishment under Sections 25/29, dismiss that ground following this judgment.

• However, examine the total fine imposed. If it exceeds the maximum for the principal offence, reduce it to the maximum. If the convict has already served default imprisonment for part of the fine, set off that period against the fine amount.

• If the convict has served imprisonment exceeding the minimum sentence, consider reducing the sentence to the period already undergone (as the High Court did in this case from 12 to 10 years) and order immediate release.