RAFIQ QURESHIversusNARCOTIC CONTROL BUREAU EASTERN ZONAL UNIT

248                       [2019]
               SUPREME COURT     7 S.C.R. 248
                              REPORTS                      [2019] 7 S.C.R.


A                             RAFIQ QURESHI
                                       v.
        NARCOTIC CONTROL BUREAU EASTERN ZONAL UNIT
                       (Criminal Appeal No. 567 of 2019)
B                                MAY 07, 2019
              [ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
             Narcotic Drugs and Psychotropic Substances Act, 1985 –
      ss.15(a), 16, 21(c), 31, 32B – Interpretation of s.32B – Appellant
      convicted and sentenced u/s.21(c) to suffer rigorous imprisonment
C
      for a term of 18 years – High Court while maintaining the conviction,
      reduced the sentence to 16 years rigorous imprisonment – In appeal
      by the appellant, Supreme Court issued notice limited to the quantum
      of the sentence – Held: 1985 Act enumerates different offences and
      provides for punishment – Various sections provide for different
D     punishments – There are few provisions in which minimum and
      maximum punishment have been provided for, however, they do not
      indicate any legislative policy regarding sentencing – In the present
      case, conviction has been recorded u/s.21(c)– s.21(c) 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” – s.32B
E
      is brought in the statute to rationalise the sentencing structure –
      Clauses (a) to (f) in s.32B enumerate various factors for imposing
      a punishment higher than the minimum term of imprisonment –
      Statutory scheme indicates that the decision to impose a punishment
      higher than the minimum is not confined or limited to the factors
F     enumerated in clauses (a) to (f) – Court’s discretion to consider
      such factors as it may deem fit is not taken away or tinkered – High
      Court held that since the actual quantity of Heroine which the
      appellant was found in possession of was 609.6gm, as against the
      alleged quantity of 8.175 Kg of Heroin, which is much higher than
      the commercial quantity, thus punishment higher than the minimum
G
      is justified – Judgment of the trial court and the High Court
      awarding the punishment higher than the minimum, upheld –
      However, in the facts and circumstances of the case including the
      fact that it was found by the High Court that the appellant was only
      a carrier, the ends of justice will be sub-served in reducing the
H
                                      248
     RAFIQ QURESHI v. NARCOTIC CONTROL BUREAU                           249
                EASTERN ZONAL UNIT

sentence from 16 years to 12 years – Conviction of the appellant        A
maintained – Sentenced to undergo 12 years rigorous imprisonment,
with Rs. 2 lakh fine, in default of payment of which the appellant to
further undergo simple imprisonment for six months – Sentencing –
Narcotic Drugs and Psychotropic Substances (Amendment) Act,
2001.
                                                                        B
      Partly allowing the appeal, the Court
      HELD: 1.1 The Narcotic Drugs and Psychotropic
Substances Act, 1985 enumerates different offences and provides
for punishment. In the present case, conviction was recorded
under Section 21(c). Section 32 was inserted by Act 9 of 2001 in        C
the 1985 Act w.e.f 02.10.2001. A perusal of different provisions
of Act, 1985 indicates that various sections provide for different
punishments. Section 21(c) 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          D
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            E
and maximum punishment is 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          F
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. [Paras 8-10]
[254-C; 255-A; G-H; 256-A-B]
      1.2 The Statement of Objects and Reasons reveals that the         G
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. The            H
250            SUPREME COURT REPORTS                      [2019] 7 S.C.R.


A     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 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”.
B
      The above statutory scheme clearly indicates the following: (a)
      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; (b) in addition, take into account the factors
C     for imposing a punishment higher than the minimum as
      enumerated in clause (a) to (f). [Paras 12, 14] [256-G-H; 257-A;
      C-F]
            1.3 The statutory scheme indicates that the decision to
      impose a punishment higher than the minimum is not confined or
D     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 supposing
E     the quantity of manufactured drug is 20 time 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
F     (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
G     any such factor, higher than the minimum term of punishment is
      awarded. 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
H     Section 32B.[Paras 15, 17] [257-F-H; 258-A-B; G]
     RAFIQ QURESHI v. NARCOTIC CONTROL BUREAU                         251
                EASTERN ZONAL UNIT

       1.4 Punishment awarded by the trial court of a sentence        A
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
                                                                      B
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      C
higher than minimum can be interfered with. 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
                                                                      D
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.
The judgment of the trial court and the High Court awarding the
punishment higher than the minimum is upheld, however, looking        E
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, the ends of justice will be sub-served in reducing
the sentence from 16 years to 12 years. Thus, while maintaining
the conviction of the appellant, the appellant is sentenced to
                                                                      F
undergo 12 years rigorous imprisonment with fine of Rs. 2 lakh
and in default of payment of such fine the appellant
shall further undergo for a simple imprisonment for six months.
[Paras 22, 23] [261-A-F]
      Sakshi v. Union of India and others (2004) 5 SCC
      518 : [2004] 2 Suppl. SCR 723 – relied on.                      G

      Ram Asre v. State of U.P Decision of Allahabad High
      Court on 14.12.2017 in Jail Appeal No. 894 of 2015 ;
      Krishna Murari Pal v. State of U.P Decision of
      Allahabad High Court in Criminal Appeal No.4301 of
      2008 – approved.                                                H
252             SUPREME COURT REPORTS                           [2019] 7 S.C.R.


A           Raj Kumar Vajpayee v. State of U.P. (2016) 95 ACRC
            896 (Allahabad High Court) – referred to.
                               Case Law Reference
      [2004] 2 Suppl. SCR 723            relied on                 Para 16
B     (2016) 95 ACRC 896                 referred to               Para 18
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 567 of 2019.
            From the Judgment and Order dated 17.04.2018 of the High Court
      at Calcutta in CRA No. 661 of 2014.
C
           Vikramjit Banerjee, ASG, Ms. Praveena Gautam, Ms. Seema
      Bengani, Anas Zaidi, Arvind Kumar Sharma, Advs. for the Appellant.
            P. S. Narasimha, Sr. Adv., M. Srinivas R. Rao, Sarath S. Janaradan,
      K. Narsimbha Murthy, Rahul T., V. C. Shukla, Sundoora VNL., Abid Ali
      Beeran P, Advs. for the Respondent.
D
            The Judgment of the Court was delivered by
            ASHOK BHUSHAN, J.
             1. This appeal has been filed against the judgment dated 17.04.2018
      of High Court of Calcutta, partly allowing the appeal filed by the appellant
E     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 fine of Rs.2 lakh, and in default to suffer
F     imprisonment for twelve months. High Court while maintaining the
      conviction has reduced the sentence to sixteen years rigorous
      imprisonment with fine of Rs. 2 lakh and in default of payment of such
      fine, 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 limited to the quantum of
G     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.


H
     RAFIQ QURESHI v. NARCOTIC CONTROL BUREAU                                   253
      EASTERN ZONAL UNIT [ASHOK BHUSHAN, J.]

        3. Learned counsel for the appellant submits that appellant could       A
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
                                                                                B
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    C
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         D
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,          E
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                   F
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       G
to interpretation of Section 32B of the Narcotic Drugs and Psychotropic
Substances Act, 1985. The issues are as to: -
      i)   whether in absence of any of the factors enumerated in
           Section 32B from clauses (a) to (f) whether the trial court
                                                                                H
254               SUPREME COURT REPORTS                       [2019] 7 S.C.R.


A                  could have awarded punishment higher than the minimum
                   term of imprisonment.
            ii)    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
B                  of imprisonment?
            Both the issues being related, we proceed to consider the issues
      together.
             8. The Narcotic Drugs and Psychotropic Substances Act, 1985
      enumerates different offences and provides for punishment. In the present
C     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
D           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
E                 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
F                 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
G                 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
H
     RAFIQ QURESHI v. NARCOTIC CONTROL BUREAU                                255
      EASTERN ZONAL UNIT [ASHOK BHUSHAN, J.]

was inserted by Act 9 of 2001 in the Narcotic Drugs and Psychotropic         A
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           B
      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;                                                          C
           (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
           (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
           (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
                                                                             F
          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 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     G
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
                                                                             H
256            SUPREME COURT REPORTS                            [2019] 7 S.C.R.


A     any legislative policy regarding sentencing especially when there is
      minimum and maximum punishment is 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
B
      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.
             11. Section 32B is also inserted by Act 9 of 2001. It is useful to
      refer to Statement of Objects and Reasons of Amendment Act 9 of
C     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
D           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
E           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
F           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
G           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
H
     RAFIQ QURESHI v. NARCOTIC CONTROL BUREAU                                  257
      EASTERN ZONAL UNIT [ASHOK BHUSHAN, J.]

(a) to (f) enumerates various factors for imposing a punishment higher         A
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         B
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          C
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 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                      D
clearly indicates the following:
      (a) 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;                                        E

      (b) in addition, take into account the factors for imposing a
          punishment higher than the minimum as enumerated in clause
          (a) to (f).
       15. The statutory scheme indicates that the decision to impose a        F
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 a 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        G
suppose the quantity of manufactured drug is 20 time 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

                                                                               H
258            SUPREME COURT REPORTS                               [2019] 7 S.C.R.


A     is a relevant 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
B
      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
C     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
D           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
E           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
F           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
G     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 for the appellant has relied on a judgment of
      Allahabad High Court reported in Raj Kumar Bajpaee vs. State of
      U.P., (2016) 95 ACrC 896. A Single Judge of the Allahabad High
H
     RAFIQ QURESHI v. NARCOTIC CONTROL BUREAU                                 259
      EASTERN ZONAL UNIT [ASHOK BHUSHAN, J.]

Court referring to Section 32B of the Act stated following in paragraphs      A
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 Section 8/20 of the NDPS Act, upon the                 B
      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.
                                                                              C
      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     D
      Section 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 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          E
      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            F
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:
                                                                              G
      “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
                                                                              H
260            SUPREME COURT REPORTS                           [2019] 7 S.C.R.


A           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
B
            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
C           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
D
            of fine, reduction of sentence of one year imprisonment to six
            months’ simple imprisonment would meet the ends of justice.”
            20. Another case which has been relied by the counsel is in Jail
      Appeal No.894 of 2015, Ram Asre vs. State of U.P., where a learned
      Single Judge of Allahabad High Court after referring to Section 32B
E     made following observation:
                “59………………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
F           into consideration which are mentioned in sub-section (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
G           keeping in view that the lower court did not take into consideration
            the above factors.”
            21. The views expressed by the learned Single Judges in Krishna
      Murari Pal and Ram Asre (supra)correctly notices the ambit and
      scope of Section 32B.
H
     RAFIQ QURESHI v. NARCOTIC CONTROL BUREAU                                     261
      EASTERN ZONAL UNIT [ASHOK BHUSHAN, J.]

        22. In view of the foregoing discussion, we are of the view that          A
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
                                                                                  B
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                    C
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               D
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             E
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 sub-served 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               F
Rs. 2 lakh and in default of payment of such fine the appellant shall
further undergo for a simple imprisonment for six months. The appeal is
partly allowed to the extent as indicated above.

Divya Pandey                                             Appeal partly allowed.
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