TMI Blog2019 (5) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding sentencing especially when there is minimum and maximum punishment is prescribed, how to peg 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. The punishment awarded by the trial court of a sentence higher than the minimum relying on the quantity of substance cannot 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 highe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erated 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 where the Allahabad High Court has taken the view that without adverting to factors as mentioned in Section 32B, the Trial Court could not impose higher than the minimum punishment. He has relied on judgment of the Allahabad High Court reported in Raj Kumar Vajpayee versus State of U.P. reported in (2016) 95 ACRC 896. 5. Learned counsel for the respondent refuting the submissions, has relied on another judgment of Allahabad High Court in Ram Asre Vs. State of U.P. in Jail Appeal No. 894 of 2015 decided on 14.12.2017 where another single Judge of the Allahabad High Court has taken the view that there is no compulsion for the court to take into the consideration the factors which are enumerated in clauses (a) to (f) of Section 32B while awarding the punishment higher to the minimum which was prescribed. 6. We have considered submissions of the learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned 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 imposing a punishment higher than the minimum term of imprisonment or amount of fine, namely: - (a) the use or threat of use of violence or arms by the offender; (b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence; (c) the fact that the minors are affected by the offence or the minors are used for the commission of an offence; (d) the fact that the offence is committed in an educational institution or social service facility or in the immediate vicinity of such institution or faculty or in other place to which school children and students resort for edu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Amendment Act has inserted provisions for rationalisation of the sentencing structure. Section 32B is a provision which is brought in the statute to rationalise the sentencing structure. Section 32B from clauses (a) to (f) enumerates various factors for imposing a punishment higher than the minimum term of imprisonment. 13. The submission made by the counsel for the appellant is that unless in the facts of a case, any of the factors mentioned in clauses (a) to (f) are not present, the Court cannot impose punishment higher than the minimum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 been said as also to what has not been said. As a consequence a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. Similarly it is wrong and dangerous to proceed by substituting some other words for words of the statute. It is equally well sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ₹ 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 committed any act which may lie under any of the clauses of Section 32B of the NDPS Act hereinabove mentioned. But that does not mean that the Court cannot award the sentence more than the minimum sentence in the absence of any of the above conditions mentioned in clauses (a) to (f) because these conditions are in addition to the factors as the Court may deem fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, uphold the judgment of the trial court and the High Court awarding the punishment higher than the minimum, however, looking to all the facts and circumstances of the present case including the fact that it was found by the High Court that the appellant was only a carrier, we find that the ends of jus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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