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Rafiq Qureshi v. Narcotic Control Bureau, Eastern Zonal Unit .
Factual and Procedural Background
The appellant was convicted by the Additional District & Sessions Judge under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possession of a commercial quantity of heroin. He was sentenced to eighteen years’ rigorous imprisonment and fined Rs 2 lakhs, with twelve months’ imprisonment in default. On appeal, the High Court of Calcutta upheld the conviction but reduced the sentence to sixteen years’ rigorous imprisonment while keeping the fine intact (default six months). Aggrieved, the appellant approached the Supreme Court, which issued notice limited to the quantum of sentence. The present judgment decides that limited question.
Legal Issues Presented
- Whether, in the absence of any of the aggravating factors listed in Section 32-B(a)-(f) of the NDPS Act, a court can lawfully impose a sentence higher than the statutory minimum for an offence under Section 21(c).
- Whether factors other than those enumerated in Section 32-B(a)-(f) may be considered while awarding punishment above the minimum term of imprisonment.
Arguments of the Parties
Appellant's Arguments
- The minimum punishment for Section 21(c) is ten years; a higher sentence can be imposed only if one or more factors in Section 32-B(a)-(f) are present.
- No such aggravating factor was found by either the trial court or the High Court; therefore, the sentence could not exceed ten years.
- Relied on Raj Kumar Bajpaee v. Union of India, (2016) 95 ACC 896, in which the Allahabad High Court set aside a sentence above the minimum because Section 32-B factors were not considered.
Respondent's Arguments
- The court’s power to award more than the minimum sentence is discretionary; Section 32-B factors are illustrative, not exhaustive.
- Relied on Ram Asre v. State of U.P., 2017 SCC OnLine All 2891, which held that courts are not compelled to refer to clauses (a)-(f) before imposing a higher sentence.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Raj Kumar Bajpaee v. Union of India, (2016) 95 ACC 896 (Allahabad HC) | Trial court erred in imposing a sentence above the minimum without discussing Section 32-B factors. | Cited by appellant; Supreme Court distinguished the reasoning, noting it was not a categorical statutory interpretation. |
| Krishna Murari Pal v. State of U.P., 2015 SCC OnLine All 4909 | Section 32-B factors are additional; absence of those factors does not bar a higher sentence. | Approved as correctly stating the scope of Section 32-B. |
| Ram Asre v. State of U.P., 2017 SCC OnLine All 2891 | Use of the word “may” in Section 32-B indicates discretion; factors (a)-(f) are not mandatory pre-conditions. | Approved as correctly interpreting statutory discretion. |
| Sakshi v. Union of India, (2004) 5 SCC 518 | Statutory interpretation principle: courts must rely on the language of the statute and avoid adding words. | Relied upon to emphasise that Section 32-B does not restrict the court to the listed factors only. |
Court's Reasoning and Analysis
The Supreme Court examined Sections 21(c) and 32-B of the NDPS Act. Section 21(c) prescribes a minimum of ten years’ imprisonment extendable to twenty years. Section 32-B, inserted in 2001 to rationalise sentencing, states that the court “may, in addition to such factors as it may deem fit, take into account” the factors in clauses (a)-(f) when deciding to exceed the minimum sentence.
Key analytical steps:
- The phrase “in addition to such factors as it may deem fit” preserves judicial discretion; the factors in clauses (a)-(f) are illustrative, not exhaustive.
- The quantity of the contraband—though not listed in clauses (a)-(f)—is a relevant circumstance; possession of 609.6 grams of heroin far exceeds the “commercial quantity” threshold.
- Precedents favouring mandatory reliance on Section 32-B factors were distinguished; decisions recognising judicial discretion were endorsed.
- The Court held that a higher sentence based on the large quantity of narcotics is permissible and not erroneous, but the sentence must still be proportionate and subject to appellate review for relevance of factors.
Holding and Implications
The appeal is partly allowed. Conviction under Section 21(c) is affirmed, but the sentence is reduced from sixteen years’ rigorous imprisonment to twelve years’ rigorous imprisonment while maintaining the fine of Rs 2 lakhs (default: six months’ simple imprisonment).
Implications: The judgment clarifies that Section 32-B does not confine courts to the six enumerated factors when deciding to impose a sentence above the statutory minimum. Quantity of the seized contraband is a valid independent factor. The ruling provides guidance for sentencing under the NDPS Act but stops short of laying down a rigid formula, preserving judicial discretion subject to reasonableness and relevance.
Ashok Bhushan, J.— This appeal has been filed against the judgment dated 17-4-2018 2018 SCC OnLine Cal 1057 of the High Court of Calcutta, partly allowing the appeal filed by the appellant challenging his conviction and sentence under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The Additional District & Sessions Judge had convicted the appellant and sentenced him under Section 21(c) to suffer rigorous imprisonment for a term of eighteen years and to pay a fine of Rs 2 lakhs, and in default to suffer imprisonment for twelve months. The High Court while maintaining the conviction has reduced the sentence to sixteen years' rigorous imprisonment with fine of Rs 2 lakhs and in default of payment of such fine, the appellant was to undergo simple imprisonment for six months. Aggrieved against the judgment of the High Court this appeal has been filed. This Court issued notice on 26-11-2018 2018 SCC OnLine SC 3297 limited to the quantum of the sentence.
2. We have heard the counsel for the appellant as well as the learned counsel appearing for the State of West Bengal for the respondent.
3. The learned counsel for the appellant submits that the appellant could not have been awarded sentence of more than ten years which is the minimum sentence provided for the offence under Section 21(c), since the court below did not advert to Section 32-B 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 32-B only when any of the factors enumerated in Section 32-B 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, the appellant could have been awarded only sentence of ten years, which is a minimum sentence for punishment under Section 21(c).
4. The learned counsel for the appellant has relied on the judgment (2016) 95 ACC 896 of the Allahabad High Court where the Allahabad High Court has taken the view that without adverting to factors as mentioned in Section 32-B, the trial court could not impose higher than the minimum punishment. He has relied on the judgment of the Allahabad High Court in Raj Kumar Bajpaee v. Union of India (2016) 95 ACC 896.
5. The learned counsel for the respondent refuting the submissions, has relied on another judgment of the Allahabad High Court in Ram Asre v. State of U.P. 2017 SCC OnLine All 2891 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 consideration the factors which are enumerated in clauses (a) to (f) of Section 32-B while awarding the punishment higher then the minimum which was prescribed.
6. We have considered the 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 32-B of the Narcotic Drugs and Psychotropic Substances Act, 1985. The issues are as to:
7.1. Whether in the absence of any of the factors enumerated in Section 32-B from clauses (a) to (f) whether the trial court could have awarded punishment higher than the minimum term of imprisonment?
7.2. Whether the trial court could not take any other factor into consideration apart from factors mentioned in clauses (a) to (f) while imposing punishment higher than the minimum term of imprisonment?
8. Both the issues being related, we proceed to consider the issues together.
9. The Narcotic Drugs and Psychotropic Substances Act, 1985 enumerates different offences and provides for punishment. In the present case, conviction has been recorded under Section 21(c). Section 21 which is relevant for the case is as follows:
“21. Punishment for contravention in relation to manufactured drugs and preparations.— Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable—
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten 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.”
10. 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. 2-10-2001, which is to the following effect:
“32-B. 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 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.”
11. A perusal of different provisions of the 1985 Act indicates that various sections provide for different punishments. In Section 21(c) noticed above the provision provides that rigorous imprisonment shall not be “less than ten years but which may extend to twenty years and shall also be liable to fine”. In various other sections the punishments are like Section 15(a) which may extend to one year or with fine as in Section 16 which may extend to ten years or with fine. Thus, there are few provisions in which minimum punishment and maximum punishment have been provided for. The different provisions, however, do not indicate any legislative policy regarding sentencing especially when there is minimum and maximum punishment prescribed, how to peg the punishment. By Act 9 of 2001, Section 31 was substituted which provides that any person who has been convicted of the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit, any of the offences punishable under this Act is subsequently convicted of the offence shall be punished for the second and every subsequent offence with rigorous imprisonment for a term which may extend to one and one-half times of the maximum term of imprisonment.
12. Section 32-B is also inserted by Act 9 of 2001. It is useful to refer to the Statement of Objects and Reasons of Amendment Act 9 of 2001 which is to the following effect:
“Statement of Objects and Reasons.— Amendment 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.”
13. The Statement of Objects and Reasons reveals that the Amendment Act has inserted provisions for rationalisation of the sentencing structure. Section 32-B is a provision which is brought in the statute to rationalise the sentencing structure. Section 32-B from clauses (a) to (f) enumerates various factors for imposing a punishment higher than the minimum term of imprisonment.
14. 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 the absence of any such factor only minimum punishment should be awarded.
15. We have to first see the actual words used in the statute to find out the object and purpose of inserting Section 32-B. The court after conviction of an accused hears the accused and takes into consideration different circumstances of the accused and the offence for awarding the appropriate sentence. Section 32-B uses the phrase
“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”.
The above statutory scheme clearly indicates the following:
15.1. The court may where minimum term of punishment is prescribed take into consideration “such factors as it may deem fit” for imposing a punishment higher than the minimum term of imprisonment or fine.
15.2. In addition, take into account the factors for imposing a punishment higher than the minimum as enumerated in clauses (a) to (f).
16. The statutory scheme indicates that the decision to impose a punishment higher than the minimum is not confined or limited to the factors enumerated in clauses (a) to (f). The Court's discretion to consider such factors as it may deem fit is not taken away or tinkered. In case a person is found in possession of a manufactured drug whose quantity is equivalent to commercial quantity, the punishment as per Section 21(c) has to be not less than ten years which may extend to twenty years. But suppose the quantity of manufactured drug is 20 times of the commercial quantity, it may be a relevant factor to impose punishment higher than minimum. Thus, quantity of substance with which an accused is charged is a relevant factor, which can be taken into consideration while fixing quantum of the punishment. Clauses (a) to (f) as enumerated in Section 32-B 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.
17. This Court in Sakshi v. Union of India (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 para 19 of the judgment the 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 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.)”
18. The specific words used in Section 32-B 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 32-B.
19. The learned counsel for the appellant has relied on a judgment of the Allahabad High Court in Raj Kumar Bajpaee v. Union of India (2016) 95 ACC 896. A Single Judge of the Allahabad High Court referring to Section 32-B of the Act stated the following in paras 39 and 40:
“39. After going through the impugned judgment and order very carefully, I find that the trial court while imposing higher than the minimum punishment prescribed under the NDPS Act on conviction under Sections 8/20 of the NDPS Act, upon the appellants has failed even to advert to the factors enumerated in Section 32-B of the NDPS Act. In fact, no reason whatsoever is forthcoming in the impugned judgment which lead the trial court to impose higher than the minimum punishment prescribed under the Act upon the appellants.
40. After going through the evidence on record, I am satisfied that in the present case none of the factors as spelt out in Section 32-B of the Act exist which could have prompted the trial court to award higher than the minimum punishment prescribed under the Act. The sentence awarded to the appellants thus cannot be sustained. While maintaining the conviction of the appellants under Sections 8/20, I allow this appeal in part and modify the sentence awarded to them by the trial court by the impugned judgment and order to 10 years' RI and a fine of Rs 1 lakh and in default of payment of fine the appellants shall be liable to undergo further simple imprisonment for one month. The impugned judgment stands modified accordingly.”
20. 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 32-B are present but the Court proceeded to set aside the award of higher punishment on the above ground. There are two other judgments of the learned Single Judges of the Allahabad High Court which have been brought to our notice. First is the judgment of the Single Judge in Krishna Murari Pal v. State of U.P. 2015 SCC OnLine All 4909, where the learned Single Judge in para 13 has considered Section 32-B in the following words: (SCC OnLine All)
“13. The trial court has awarded the sentence of 12 years' rigorous imprisonment and fine of Rs 1 lakh to the appellant-accused under Sections 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 appellant-accused. There is nothing on record to show that the appellant-accused had committed any act which may lie under any of the clauses of Section 32-B 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 appellant-accused and previous criminal history or he is a previous convict and that the appellant is now advanced in years and is aged about 56 years as mentioned in the supplementary affidavit filed on behalf of the appellant-accused. Undisputedly the appellant-accused 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' simple imprisonment would meet the ends of justice.”
21. Another case which has been relied by the counsel is in Ram Asre v. State of U.P. 2017 SCC OnLine All 2891, where a learned Single Judge of the Allahabad High Court after referring to Section 32-B made the following observation: (SCC OnLine All para 61)
“61. … In opinion of this Court, if the said section be read with greater attention, it would reveal that the words used in it are “it may deem fit”, therefore word “may” would indicate that it would be discretionary for the Court to take the grounds into consideration which are mentioned in sub-sections (a) to (f) of the said section, while awarding punishment higher than the minimum prescribed. Therefore there is no force found in the argument in this regard made by the learned amicus curiae that in the case at hand the punishment awarded needs to be curtailed keeping in view that the lower court did not take into consideration the above factors.”
22. The views expressed by the learned Single Judges in Krishna Murari Pal 2015 SCC OnLine All 4909 and Ram Asre 2017 SCC OnLine All 2891 correctly notice the ambit and scope of Section 32-B.
23. In view of the foregoing discussion, we are of the view that 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 (f) as enumerated under Section 32-B. However, when taking any factor into consideration other than the factors enumerated in Sections 32-B(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 the court imposes a punishment higher than minimum relying on an irrelevant factor and no other factor as enumerated in Sections 32-B(a) to (f) is present, award of sentence higher than minimum can be interfered with.
24. 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 heroin which was found to be in possession was only 609.6 gm. The High Court held that since the appellant was found to be 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 justice will be subserved in reducing the sentence from 16 years to 12 years. Thus, while maintaining the conviction of the appellant, the appellant is sentenced to undergo 12 years' rigorous imprisonment with fine of Rs 2 lakhs and in default of payment of such fine the appellant shall further undergo simple imprisonment for six months. The appeal is partly allowed to the extent as indicated above.
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