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TMI Blog2019 (5) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... limited to the quantum of the sentence. 2. We have heard counsel for the appellant as well as learned counsel appearing for the State of West Bengal for the respondent. 3. Learned counsel for the appellant submits that appellant could not have been awarded sentence of more than ten years which is the minimum sentence provided for offence under Section 21(c), since the Court below did not advert to Section 32B of the Narcotic Drugs and Psychotropic Substances Act, 1985 and has not returned any finding that any of the factors for imposing the punishment higher than the minimum term of imprisonment as enumerated in clauses (a) to (f) are present in the facts of the present case. He submits that punishment higher than the minimum term of imprisonment can be awarded as per Section 32B only when any of the factors enumerated in 32B from (a) to (f) are present. There being no aggravating factors as enumerated in clauses (a) to (f) present in the facts of the present case, appellant could have been awarded only sentence of ten years, which is a minimum sentence for punishment under Section 21(c). 4. Learned counsel for the appellant has relied on judgment of Allahabad High Court whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n thousand rupees, or with both; (b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees." 9. Section 32 with which we are concerned in the present case was inserted by Act 9 of 2001 in the Narcotic Drugs and Psychotropic Substances Act, 1985 w.e.f 02.10.2001, which is to the following effect:- "32B. Factors to be taken into account for imposing higher than the minimum punishment.- Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act, the court may, in addition to such factors as it may deem fit, take into account the following factors for impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment Act 9 of 2001:- The Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment for various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. Most of the offences invite uniform punishment of minimum ten years' rigorous imprisonment which may extend up to twenty years. While the Act envisages severe punishments for drug traffickers, it envisages reformative approach towards addicts. In view of the general delay in trial it has been found that the addicts prefer not to invoke the provisions of the Act. The strict bail provisions under the Act add to their misery. Therefore, it is proposed to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment. This requires rationalisation of the sentence structure provided under the Act. It is also proposed to restrict the application of strict bail provisions to those offenders who indulge in serious offences." 12. The Statement of Objects and Reasons reveals that the Amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant factor, which can be taken into consideration while fixing quantum of the punishment. Clauses (a) to (f) as enumerated in Section 32B do not enumerate any factor regarding quantity of substance as a factor for determining the punishment. In the event the Court takes into consideration the magnitude of quantity with regard to which an accused is convicted the said factor is relevant factor and the Court cannot be said to have committed an error when taking into consideration any such factor, higher than the minimum term of punishment is awarded. 16. This Court in Sakshi vs. Union of India and others, (2004)5 SCC 518, held that it is a well settled principle that the intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. A construction which requires for its support addition or substitution of words has to be avoided. In paragraph 19 of the judgment following was laid down: "19. It is well-settled principle that the intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment and order to 10 years R.I. and a fine of Rs. 1 lakh and in default of payment of fine the appellants shall be liable to undergo further simple imprisonment to one month. The impugned judgment stands modified accordingly." 19. Although in the above judgment it has not been categorically held that punishment higher than the minimum cannot be awarded unless any of the factors spelt out in Section 32B are present but the Court proceeded to set aside the award of higher punishment on the above ground. There are two other judgments of learned Single Judges of Allahabad High Court which have been brought to our notice. First is judgment of Single Judge in Criminal Appeal No.4301 of 2008, Krishna Murari Pal vs. State of U.P., where learned Single Judge in paragraph 13 has considered Section 32B in the following words: "13. The trial court has awarded the sentence of 12 years' rigorous imprisonment and fine of Rs. 1 lac to the accused appellant under Section 8/20(b)(ii)(c) of the NDPS Act on the ground that huge quantity of the said contraband (Ganja) has been recovered from the possession of the accused appellant. There is nothing on record to show that the accused appellant had co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be faulted even though the Court had not adverted to the factors mentioned in clauses (a) to (b) as enumerated under Section 32B. However, when taking any factor into consideration other than the factors enumerated in Section 32B, (a) to (f), the Court imposes a punishment higher than the minimum sentence, it can be examined by higher Courts as to whether factor taken into consideration by the Court is a relevant factor or not. Thus in a case where Court imposes a punishment higher than minimum relying on a irrelevant factor and no other factor as enumerated in Section 32B(a to f) are present award of sentence higher than minimum can be interfered with. 23. In the present case The High Court held that although gross quantity of 8.175 Kg. of Heroin was alleged to have been recovered from the appellant but actual quantity of Heroine which was found to be in possession was only 609.6 gm. The High Court held that since the appellant was found in possession of Narcotic Drugs as per the analysis report to 609.6 gm. which is much higher than the commercial quantity, punishment higher than the minimum is justified. The High Court reduced the punishment from 18 years to 16 years. We, thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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