IMPORTANT POINT
Higher punishment can be imposed on consideration of relevant factors.

JUDGMENT :

ASHOK BHUSHAN, J.

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 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 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 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.

3. Learned counsel for the appellant submits that appellant could 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 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 have been awarded only sentence of ten years, which is a minimum sentence for punishment under Section 21(c).

4. Learned counsel for the appellant has relied on judgment of Allahabad High Court where the Allahabad High Court has taken the view that without adverting to factors as mentioned in Section 32B, the Trial Court could not impose higher than the minimum punishment. He has relied on judgment of the Allahabad High Court reported in Raj Kumar Vajpayee versus State of U.P. reported in (2016) 95 ACRC 896.

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

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

7. The main issues which have arisen in the present appeal pertain to interpretation of Section 32B of the 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 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 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 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 contraventio