RAFIQ QURESHI versus NARCOTIC CONTROL BUREAU EASTERN ZONAL UNIT on 7 May 2019

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SUPREME COURT REPORTS

[2019] 7 S.C.R.

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RAFIQ QURESHI

v.

NARCOTIC CONTROL BUREAU EASTERN ZONAL UNIT

(Criminal Appeal No. 567 of 2019)

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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 – Appellantconvicted and sentenced u/s.21(c) to suffer rigorous imprisonmentCfor a term of 18 years – High Court while maintaining the conviction,reduced the sentence to 16 years rigorous imprisonment – In appealby the appellant, Supreme Court issued notice limited to the quantumof the sentence – Held: 1985 Act enumerates different offences andprovides for punishment – Various sections provide for differentDpunishments – There are few provisions in which minimum andmaximum punishment have been provided for, however, they do notindicate any legislative policy regarding sentencing – In the presentcase, conviction has been recorded u/s.21(c)– s.21(c) provides thatrigorous imprisonment shall not be “less than ten years but whichmay extend to twenty years and shall also be liable to fine” – s.32BEis brought in the statute to rationalise the sentencing structure –Clauses (a) to (f) in s.32B enumerate various factors for imposinga punishment higher than the minimum term of imprisonment –Statutory scheme indicates that the decision to impose a punishmenthigher than the minimum is not confined or limited to the factorsFenumerated in clauses (a) to (f) – Court’s discretion to considersuch factors as it may deem fitis not taken away or tinkered – HighCourt held that since the actual quantity of Heroine which theappellant was found in possession of was 609.6gm, as against thealleged quantity of 8.175 Kg of Heroin, which is much higher thanthe commercial quantity, thus punishment higher than the minimumGis justified – Judgment of the trial court and the High Courtawarding the punishment higher than the minimum, upheld –However, in the facts and circumstances of the case including thefact that it was found by the High Court that the appellant was onlya carrier, the ends of justice will be sub-served in reducing the H

sentence from 16 years to 12 years – Conviction of the appellantmaintained – Sentenced to undergo 12 years rigorous imprisonment,with Rs. 2 lakh fine, in default of payment of which the appellant tofurther undergo simple imprisonment for six months – Sentencing –Narcotic Drugs and Psychotropic Substances (Amendment) Act,2001.

Partly allowing the appeal, the Court

Conclusion

HELD: 1.1 The Narcotic Drugs and PsychotropicSubstances Act, 1985 enumerates different offences and providesfor punishment. In the present case, conviction was recordedunder Section 21(c). Section 32 was inserted by Act 9 of 2001 inthe 1985 Act w.e.f 02.10.2001. A perusal of different provisionsof Act, 1985 indicates that various sections provide for differentpunishments. Section 21(c) provides that rigorous imprisonmentshall not be “less than ten years but which may extend to twentyyears and shall also be liable to fine”. In various other sectionsthe punishments are like Section 15(a) which may extend to oneyear or with fine as in Section 16 which may extend to ten yearsor with fine. Thus, there are few provisions in which minimumpunishment and maximum punishment have been provided for.The different provisions, however, do not indicate any legislativepolicy regarding sentencing especially when there is minimumand maximum punishment is prescribed, how to peg thepunishment. By Act 9 of 2001, Section 31 was substituted whichprovides that any person who has been convicted of thecommission of, or attempt to commit, or abetment of, or criminalconspiracy to commit, any of the offences punishable under thisAct is subsequently convicted of the offence shall be punishedfor the second and every subsequent offence with rigorousimprisonment for a term which may extend to one and one-halftimes 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 theAmendment Act has inserted provisions for rationalisation of thesentencing structure. Section 32B is a provision which is broughtin the statute to rationalise the sentencing structure. Section 32Bfrom clauses (a) to (f) enumerates various factors for imposing apunishment higher than the minimum term of imprisonment. The A

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ACourt after conviction of an accused hears the accused and takeinto consideration different circumstances of the accused andoffence for awarding the appropriate sentence. Section 32B usesthe phrase “the court may, in addition to such factors as it maydeem fit, take into account the following factors for imposing apunishment higher than the minimum term of imprisonment”.BThe above statutory scheme clearly indicates the following: (a)the court may where minimum term of punishment is prescribedtake into consideration “such factors as it may deem fit” forimposing a punishment higher than the minimum term ofimprisonment or fine; (b) in addition, take into account the factorsCfor imposing a punishment higher than the minimum asenumerated in clause (a) to (f). [Paras 12, 14] [256-G-H; 257-A;C-F]

1.3 The statutory scheme indicates that the decision toimpose a punishment higher than the minimum is not confined orDlimited to the factors enumerated in clauses (a) to (f). The Court’sdiscretion to consider such factors as it may deem fitis not takenaway or tinkered. In case a person is found in possession of amanufactured drug whose quantity is equivalent to commercialquantity, the punishment as per Section 21(c) has to be not less

than ten years which may extend to twenty years. But supposingEthe quantity of manufactured drug is 20 time of the commercialquantity, it may be a relevant factor to impose punishment higherthan minimum. Thus, quantity of substance with which an accusedis charged is a relevant factor, which can be taken intoconsideration while fixing quantum of the punishment. ClausesF(a) to (f) as enumerated in Section 32B do not enumerate anyfactor regarding quantity of substance as a factor for determiningthe punishment. In the event the Court takes into considerationthe magnitude of quantity with regard to which an accused isconvicted the said factor is relevant factor and the Court cannot be said to have committed an error when taking into considerationGany such factor, higher than the minimum term of punishment isawarded. The specific words used in Section 32B that Court may,in addition to such factors as it may deem fit clearly indicates thatCourt’s discretion to take such factor as it may deem fit is notfettered by factors which are enumerated in clauses (a) to (f) ofHSection 32B.[Paras 15, 17] [257-F-H; 258-A-B; G]

1.4 Punishment awarded by the trial court of a sentencehigher than the minimum relying on the quantity of substancecannot be faulted even though the Court had not adverted to thefactors mentioned in clauses (a) to (b) as enumerated underSection 32B. However, when taking any factor into considerationother than the factors enumerated in Section 32B, (a) to (f), theCourt imposes a punishment higher than the minimum sentence,it can be examined by higher Courts as to whether factor takeninto consideration by the Court is a relevant factor or not. Thus,in a case where Court imposes a punishment higher thanminimum relying on a irrelevant factor and no other factor asenumerated in Section 32B(a to f) are present, award of sentencehigher than minimum can be interfered with. In the present casethe High Court held that although gross quantity of 8.175 Kg. ofHeroin was alleged to have been recovered from the appellantbut actual quantity of Heroine which was found to be in possessionwas only 609.6 gm. The High Court held that since the appellantwas found in possession of Narcotic Drugs as per the analysisreport to 609.6 gm. which is much higher than the commercialquantity, punishment higher than the minimum is justified. TheHigh Court reduced the punishment from 18 years to 16 years.The judgment of the trial court and the High Court awarding thepunishment higher than the minimum is upheld, however, lookingto all the facts and circumstances of the present case includingthe fact that it was found by the High Court that the appellant wasonly a carrier, the ends of justice will be sub-served in reducingthe sentence from 16 years to 12 years. Thus, while maintainingthe conviction of the appellant, the appellant is sentenced toundergo 12 years rigorous imprisonment with fine of Rs. 2 lakhand in default of payment of such fine the appellantshall further undergo for a simple imprisonment for six months.[Paras 22, 23] [261-A-F]

Sakshi v. Union of India and others (2004) 5 SCC518 : [2004] 2 Suppl. SCR 723 – relied on.

Ram Asre v. State of U.P Decision of Allahabad HighCourt on 14.12.2017 in Jail Appeal No. 894 of 2015 ;Krishna Murari Pal v. State of U.P Decision ofAllahabad High Court in Criminal Appeal No.4301 of2008 – approved.

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ARaj Kumar Vajpayee v. State of U.P. (2016) 95 ACRC896 (Allahabad High Court) – referred to.

Case Law Reference

[2004] 2 Suppl. SCR 723relied onPara 16B(2016) 95 ACRC 896referred toPara 18

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 567 of 2019.

From the Judgment and Order dated 17.04.2018 of the High Courtat Calcutta in CRA No. 661 of 2014.

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Vikramjit Banerjee, ASG, Ms. Praveena Gautam, Ms. SeemaBengani, 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 AliBeeran 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 17.04.2018of High Court of Calcutta, partly allowing the appeal filed by the appellantEchallenging his conviction and sentence under Section 21(C) of theNarcotic Drugs and Psychotropic Substances Act, 1985. The AdditionalDistrict & Sessions Judge had convicted the appellant and sentencedhim under Section 21(c) to suffer rigorous imprisonment for a term ofeighteen years and to pay fine of Rs.2 lakh, and in default to sufferFimprisonment for twelve months. High Court while maintaining theconviction has reduced the sentence to sixteen years rigorousimprisonment with fine of Rs. 2 lakh and in default of payment of suchfine, appellant was to undergo simple imprisonment for six months.Aggrieved against the judgment of the High Court this appeal has beenfiled. This Court issued notice on 26.11.2018 limited to the quantum ofGthe sentence.

2. We have heard counsel for the appellant as well as learnedcounsel appearing for the State of West Bengal for the respondent.

3. Learned counsel for the appellant submits that appellant couldnot have been awarded sentence of more than ten years which is theminimum sentence provided for offence under Section 21(c), since theCourt below did not advert to Section 32B of the Narcotic Drugs andPsychotropic Substances Act, 1985 and has not returned any findingthat any of the factors for imposing the punishment higher than theminimum term of imprisonment as enumerated in clauses (a) to (f) arepresent in the facts of the present case. He submits that punishmenthigher than the minimum term of imprisonment can be awarded as perSection 32B only when any of the factors enumerated in 32B from (a)to (f) are present. There being no aggravating factors as enumerated inclauses (a) to (f) present in the facts of the present case, appellant couldhave been awarded only sentence of ten years, which is a minimumsentence for punishment under Section 21(c).

4. Learned counsel for the appellant has relied on judgment ofAllahabad High Court where the Allahabad High Court has taken theview that without adverting to factors as mentioned in Section 32B, theTrial Court could not impose higher than the minimum punishment. Hehas relied on judgment of the Allahabad High Court reported in RajKumar Vajpayee versus State of U.P. reported in (2016) 95 ACRC896.

5. Learned counsel for the respondent refuting the submissions,has relied on another judgment of Allahabad High Court in Ram AsreVs. State of U.P. in Jail Appeal No. 894 of 2015 decided on 14.12.2017where another single Judge of the Allahabad High Court has taken theview that there is no compulsion for the court to take into the considerationthe factors which are enumerated in clauses (a) to (f) of Section 32Bwhile awarding the punishment higher to the minimum which wasprescribed.

6. We have considered submissions of the learned counsel for theparties and perused the record.

7. The main issues which have arisen in the present appeal pertainto interpretation of Section 32B of the Narcotic Drugs and PsychotropicSubstances Act, 1985. The issues are as to: -

i)whether in absence of any of the factors enumerated inSection 32B from clauses (a) to (f) whether the trial court A

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Acould have awarded punishment higher than the minimumterm of imprisonment.

ii)Whether the trial court could not take any other factor intoconsideration apart from factors mentioned in clauses (a) to(f) while imposing punishment higher than the minimum termBof imprisonment?

Both the issues being related, we proceed to consider the issuestogether.

8. The Narcotic Drugs and Psychotropic Substances Act, 1985enumerates different offences and provides for punishment. In the presentCcase, conviction has been recorded under Section 21(c). Section 21 whichis relevant for the case is as follows: - “21. Punishment for contravention in relation to manufactureddrugs and preparations.-Whoever, in contravention of anyprovision of this Act or any rule or order made or conditionof licence granted thereunder, manufactures, possesses, sells,purchases, transports, imports inter-State, exports inter-Stateor uses any manufactured drug or any preparation containingany manufactured drug shall be punishable, D

(a) where the contravention involves small quantity, withErigorous imprisonment for a term which may extend to oneyear, or with fine which may extend to ten thousand rupees,or with both; (b) where the contravention involves quantity, lesser thancommercial quantity but greater than small quantity, withrigorous imprisonment for a term which may extend to tenyears and with fine which may extend to one lakh rupees; F

(c) where the contravention involves commercial quantity,with rigorous imprisonment for a term which shall not beless than ten years but which may extend to twenty yearsand shall also be liable to fine which shall not be less thanone lakh rupees but which may extend to two lakh rupees:Provided that the court may, for reasons to be recorded in thejudgment, impose a fine exceeding two lakh rupees.”

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9. Section 32 with which we are concerned in the present case H

was inserted by Act 9 of 2001 in the Narcotic Drugs and PsychotropicSubstances Act, 1985 w.e.f 02.10.2001, which is to the following effect:- “32B. Factors to be taken into account for imposinghigher than the minimum punishment.- Where a minimum termof imprisonment or amount of fine is prescribed for any offencecommitted under this Act, the court may, in addition to suchfactors as it may deem fit, take into account the followingfactors for imposing a punishment higher than the minimumterm of imprisonment or amount of fine, namely: - (a) the use or threat of use of violence or arms by theoffender; (b) the fact that the offender holds a public office andthat he has taken advantage of that office in committingthe offence;

(c) the fact that the minors are affected by the offence orthe minors are used for the commission of an offence; (d) the fact that the offence is committed in an educationalinstitution or social service facility or in the immediatevicinity of such institution or faculty or in other place towhich school children and students resort for educational,sports and social activities.; (e) the fact that the offender belongs to organisedinternational or any other criminal group which is involvedin the commission of the offences; and (f) the fact that the offender is involved in other illegalactivities facilitated by commission of the offence.”

10. A perusal of different provisions of Act, 1985 indicates thatvarious sections provide for different punishments. In Section 21(c)noticed above the provision provides that rigorous imprisonment shallnot be “less than ten years but which may extend to twenty years andshall also be liable to fine”. In various other sections the punishmentsare like Section 15(a) which may extend to one year or with fine as inSection 16 which may extend to ten years or with fine. Thus, there arefew provisions in which minimum punishment and maximum punishmenthave been provided for. The different provisions, however, do not indicate A

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Aany legislative policy regarding sentencing especially when there isminimum and maximum punishment is prescribed, how to peg thepunishment. By Act 9 of 2001, Section 31 was substituted which providesthat any person who has been convicted of the commission of, or attemptto commit, or abetment of, or criminal conspiracy to commit, any of theoffences punishable under this Act is subsequently convicted of theBoffence shall be punished for the second and every subsequent offencewith rigorous imprisonment for a term which may extend to one andone-half times of the maximum term of imprisonment.

11. Section 32B is also inserted by Act 9 of 2001. It is useful torefer to Statement of Objects and Reasons of Amendment Act 9 ofC2001 which is to the following effect:

“STATEMENT OF OBJECTS AND REASONS:-

Amendment Act 9 of 2001:- The Narcotic Drugs andPsychotropic Substances Act, 1985 provides deterrentpunishment for various offences relating to illicit traffickingDin narcotic drugs and psychotropic substances. Most of theoffences invite uniform punishment of minimum ten years’rigorous imprisonment which may extend up to twenty years.While the Act envisages severe punishments for drugtraffickers, it envisages reformative approach towardsEaddicts. In view of the general delay in trial it has been foundthat 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 structureso as to ensure that while drug traffickers who traffic insignificant quantities of drugs are punished with deterrentFsentences, the addicts and those who commit less seriousoffences are sentenced to less severe punishment. Thisrequires rationalisation of the sentence structure providedunder the Act. It is also proposed to restrict the application ofstrict bail provisions to those offenders who indulge in seriousGoffences.”

12. The Statement of Objects and Reasons reveals that theAmendment Act has inserted provisions for rationalisation of thesentencing structure. Section 32B is a provision which is brought in thestatute to rationalise the sentencing structure. Section 32B from clauses H

(a) to (f) enumerates various factors for imposing a punishment higherthan the minimum term of imprisonment.

13. The submission made by the counsel for the appellant is thatunless 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 thanthe minimum term of the imprisonment. It is submitted that the factorshave been brought in the statute for the purpose of imposing thepunishment higher than the minimum, hence, in absence of any suchfactor only minimum punishment should be awarded.

14. We have to first see the actual words used in the statute tofind out object and purpose of inserting Section 32B. The Court afterconviction of an accused hears the accused and take into considerationdifferent circumstances of the accused and offence for awarding theappropriate sentence. Section 32B uses the phrase “the court may, inaddition to such factors as it may deem fit, take into account thefollowing factors for imposing a punishment higher than theminimum term of imprisonment”. The above statutory schemeclearly indicates the following:

(a) the court may where minimum term of punishment isprescribed take into consideration “such factors as it maydeem fit” for imposing a punishment higher than the minimumterm of imprisonment or fine; (b)in addition, take into account the factors for imposing apunishment higher than the minimum as enumerated in clause(a) to (f).

15. The statutory scheme indicates that the decision to impose apunishment higher than the minimum is not confined or limited to thefactors enumerated in clauses (a) to (f). The Court’s discretion to considersuch factors as it may deem fitis not taken away or tinkered. In a casea person is found in possession of a manufactured drug whose quantityis 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. Butsuppose the quantity of manufactured drug is 20 time of the commercialquantity, it may be a relevant factor to impose punishment higher thanminimum. Thus, quantity of substance with which an accused is charged A

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Ais a relevant factor, which can be taken into consideration while fixingquantum of the punishment. Clauses (a) to (f) as enumerated in Section32B do not enumerate any factor regarding quantity of substance as afactor for determining the punishment. In the event the Court takes intoconsideration the magnitude of quantity with regard to which an accusedis convicted the said factor is relevant factor and the Court cannot beBsaid to have committed an error when taking into consideration any suchfactor, higher than the minimum term of punishment is awarded.

16. This Court in Sakshi vs. Union of India and others, (2004)5SCC 518, held that it is a well settled principle that the intention of thelegislature is primarily to be gathered from the language used, whichCmeans that attention should be paid to what has been said as also towhat has not been said. A construction which requires for its supportaddition or substitution of words has to be avoided. In paragraph 19 ofthe judgment following was laid down:

“19. It is well-settled principle that the intention of the legislatureDis primarily to be gathered from the language used, which meansthat attention should be paid to what has been said as also to whathas not been said. As a consequence a construction which requiresfor its support addition or substitution of words or which results inrejection of words as meaningless has to be avoided. It is contraryEto all rules of construction to read words into an Act unless it isabsolutely necessary to do so. Similarly it is wrong and dangerousto proceed by substituting some other words for words of thestatute. It is equally well settled that a statute enacting an offenceor imposing a penalty is strictly construed. The fact that anenactment is a penal provision is in itself a reason for hesitatingFbefore ascribing to phrases used in it a meaning broader than thatthey would ordinarily bear. (Justice G.P. Singh: Principles ofStatutory Interpretation, pp. 58 and 751, 9th Edn.)”

17. The specific words used in Section 32B that Court may, inaddition to such factors as it may deem fit clearly indicates thatGCourt’s discretion to take such factor as it may deem fit is not fetteredby factors which are enumerated in clauses (a) to (f) of Section 32B.

18. Learned counsel for the appellant has relied on a judgment ofAllahabad High Court reported in Raj Kumar Bajpaee vs. State ofU.P., (2016) 95 ACrC 896. A Single Judge of the Allahabad HighH

Court referring to Section 32B of the Act stated following in paragraphs39 and 40:

“39. After going through the impugned judgment and order verycarefully, I find that the trial court while imposing higher than theminimum punishment prescribed under the NDPS Act onconviction under Section 8/20 of the NDPS Act, upon theappellants has failed even to advert to the factors enumerated inSection 32(B) of the NDPS Act. In fact, no reason whatsoever isforthcoming in the impugned judgment which lead the trial courtto impose higher than the minimum punishment prescribed underthe Act upon the appellants.

40. After going through the evidence on record, I am satisfiedthat in the present case none of the factors as spelt out in Section32(B) of the Act exist which could have prompted the trial courtto award higher than the minimum punishment prescribed underthe Act. The sentence awarded to the appellants thus cannot besustained. While maintaining the conviction of the appellants underSection 8/20, I allow this appeal in part and modify the sentenceawarded to them by the trial court by the impugned judgment andorder to 10 years R.I. and a fine of Rs.1 lakh and in default ofpayment of fine the appellants shall be liable to undergo furthersimple imprisonment to one month. The impugned judgment standsmodified accordingly.”

19. Although in the above judgment it has not been categoricallyheld that punishment higher than the minimum cannot be awarded unlessany of the factors spelt out in Section 32B are present but the Courtproceeded to set aside the award of higher punishment on the aboveground. There are two other judgments of learned Single Judges ofAllahabad High Court which have been brought to our notice. First isjudgment of Single Judge in Criminal Appeal No.4301 of 2008, KrishnaMurari Pal vs. State of U.P., where learned Single Judge in paragraph13 has considered Section 32B in the following words:

“13. The trial court has awarded the sentence of 12 years’ rigorousimprisonment and fine of Rs.1 lac to the accused appellant underSection 8/20(b)(ii)(c) of the NDPS Act on the ground that hugequantity of the said contraband (Ganja) has been recovered fromthe possession of the accused appellant. There is nothing on record A

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to show that the accused appellant had committed any act whichmay lie under any of the clauses of Section 32B of the NDPS Acthereinabove mentioned. But that does not mean that the Courtcannot award the sentence more than the minimum sentence inthe absence of any of the above conditions mentioned in clauses(a) to (f) because these conditions are in addition to the factors asthe Court may deem fit in awarding higher punishment to theaccused. In the case at hand, there is nothing on record to showthat the accused appellant and previous criminal history or he is aprevious convict and that the appellant is now advanced in yearss and is aged about 56 years as mentioned in the supplementaryaffidavit filed on behalf of the accused appellant. Undisputedlythe accused appellant had licence of the retailer shop of Bhang.Thus, regard being had to all the facts and circumstances of thecase I think that reduction of sentence of 12 years’ rigorousimprisonment awarded to the appellant to the period ofimprisonment already undergone by him and in default of paymentof fine, reduction of sentence of one year imprisonment to sixmonths’ simple imprisonment would meet the ends of justice.”

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20. Another case which has been relied by the counsel is in JailAppeal No.894 of 2015, Ram Asre vs. State of U.P., where a learnedSingle Judge of Allahabad High Court after referring to Section 32BEmade following observation:

“59………………In opinion of this Court, if the said sectionbe read with greater attention, it would reveal that the words usedin it are “it may deem fit”, therefore word ‘may’ would indicatethat it would be discretionary for the Court to take the groundsFinto consideration which are mentioned in sub-section (a) to (f) ofthe said section, while awarding punishment higher than theminimum prescribed. Therefore there is no force found in theargument in this regard made by the learned amicus curiae that inthe case at hand the punishment awarded needs to be curtailedGkeeping in view that the lower court did not take into considerationthe above factors.”

21. The views expressed by the learned Single Judges in KrishnaMurari Pal and Ram Asre (supra)correctly notices the ambit andscope of Section 32B.

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22. In view of the foregoing discussion, we are of the view thatpunishment awarded by the trial court of a sentence higher than theminimum relying on the quantity of substance cannot be faulted eventhough the Court had not adverted to the factors mentioned in clauses(a) to (b) as enumerated under Section 32B. However, when taking anyfactor into consideration other than the factors enumerated in Section32B, (a) to (f), the Court imposes a punishment higher than the minimumsentence, it can be examined by higher Courts as to whether factortaken into consideration by the Court is a relevant factor or not. Thus ina case where Court imposes a punishment higher than minimum relyingon a irrelevant factor and no other factor as enumerated in Section 32B(ato f) are present award of sentence higher than minimum can beinterfered with.

23. In the present case The High Court held that although grossquantity of 8.175 Kg. of Heroin was alleged to have been recoveredfrom the appellant but actual quantity of Heroine which was found to bein possession was only 609.6 gm. The High Court held that since theappellant was found in possession of Narcotic Drugs as per the analysisreport to 609.6 gm. which is much higher than the commercial quantity,punishment higher than the minimum is justified. The High Court reducedthe punishment from 18 years to 16 years. We, thus, uphold the judgmentof the trial court and the High Court awarding the punishment higherthan the minimum, however, looking to all the facts and circumstancesof the present case including the fact that it was found by the HighCourt that the appellant was only a carrier, we find that the ends ofjustice will be sub-served in reducing the sentence from 16 years to 12years. Thus, while maintaining the conviction of the appellant the appellantis sentenced to undergo 12 years rigorous imprisonment with fine ofRs. 2 lakh and in default of payment of such fine the appellant shallfurther undergo for a simple imprisonment for six months. The appeal ispartly allowed to the extent as indicated above.

Divya Pandey

Appeal partly allowed.

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