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2019 (5) TMI

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..... tencing 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 higher than minimum .....

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..... d 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 for the parties and perused the record. 7. The main issues which have arisen in the present appeal pertain to interpretation of Section 32B of the Narco .....

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..... ence 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 educational, sports and social activities.; (e) the fact that the offender belongs to organised international or any other criminal group which is involved in the commission of the offences; and (f) the fact that the offender is involved in other illegal activities facilitated by commission of the offence. 10. A perusal of different provisions of Act, 1985 indicates that various sections provide for different punishments. In Sec .....

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..... ose 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 term of the imprisonment. It is submitted that the factors have been brought in the statute for the purpose of imposing the punishment higher than the minimum, hence, in absence of any such factor only minimum punishment should be awarded. 14. We have to first see the actual words used in the statute to find out object and purpose of inserting Section 32B. The Court after conviction of an accused hears the accused and take into consideration different circumstances of the accused and offence for awarding the appropriate sentence. Section 32B us .....

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..... ily 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 settled that a statute enacting an offence or imposing a penalty is strictly construed. The fact that an enactment is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broader than that they would ordinarily bear. (Justice G.P. Singh: Principles of Statutory Interpretation, pp. 58 and 751, 9th Edn.) 17. The specific words used in Section 32B that Court may, in addition to such factors as it may deem fit clearly indicates that Court s discretion to take such factor as it may deem fit is not fettered by factors which are enumerated in clauses (a) to (f) of Section 32B. 18. Learned counsel f .....

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..... 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 fit in awarding higher punishment to the accused. In the case at hand, there is nothing on record to show that the accused appellant and previous criminal history or he is a previous convict and that the appellant is now advanced in years s and is aged about 56 years as mentioned in the supplementary affidavit filed on behalf of the accused appellant. Undisputedly the accused appellant had licence of the retailer shop of Bhang. Thus, regard being had to all the facts and circumstances of the case I think that reduction of sentence of 12 years rigorous imprisonment awarded to the appellant to the period of imprisonment already undergone by him and in default of payment of fine, reduction of sentence of one year imprisonment to six months s .....

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