IMPORTANT POINT
Quantum of sentence – Factors mentioned in Section 32-B of NDPS Act are in addition to other relevant facts, and it cannot be said that minimum sentence under NDPS Act is to be considered as a maximum sentence.

ORDER :

1. Delay condoned.

2. The petitioner was put to trial in the Court of Special Judge (NDPS Act), Surguja, Ambikapur, District-Surguja (C.G.) in Special Criminal (NDPS) Case No.04/2019 for the offence punishable under Section 21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”).

3. It is the case of the prosecution that on 20th September, 2018, the Investigating Officer attached with the Ambikapur, police station received information that two individuals namely Ambika Vishwakarma and Narayan Das (petitioner herein) were standing on the side of the main road of Parsa and were in possession of psychotropic substance in a bag.

4. A search was undertaken of the two individuals and the same resulted in seizure of R.C. Kuff cough syrup in all 143 vials each containing 100ml, Codectus cough Syrup 70 vials each containing 100ml and Elderqurex cough syrup 23 vials each containing 100ml with labels containing a substance Codeine Phosphate. In all 236 vials were recovered from the possession of the petitioner herein along with the co-accused.

5. At the end of the trial the petitioner herein stood convicted and was sentenced to undergo 12 years of rigorous imprisonment with fine of Rs.1,00,000/-. The petitioner went in appeal before the High Court. The High Court dismissed the appeal. However, while dismissing the appeal, the High Court reduced the sentence of 12 years as imposed by the trial court to 10 years i.e. the minimum as provided under the NDPS Act.

6. We heard Mr. Ashish Pandey, the learned counsel appearing for the petitioner.

7. This is a legal aid matter.

8. Manifold contentions were raised by the learned counsel to persuade us to take the view that the entire seizure was vitiated as the same suffered from serious infirmities.

9. There is no good reason for us to disturb the impugned judgment of the High Court dismissing the appeal. However, there is something which we have noticed and must not be ignored. The High Court seems to be labouring under a serious misconception of law so far as the interpretation of Section 32 -B of the NDPS Act is concerned.

10. The High Court from paragraph 25 onwards has observed thus:-

“25. The last contention that has been raised on behalf of the appellants is that without assigning any special reason, the learned trial Court has awarded sentence for a period of 12 years to the appellants, which is more than the minimum sentence prescribed for offence under Section 21(c) of the NDPS Act.

26. Section 32B of the NDPS Act states about the facts to be taken into account for imposing higher than the minimum punishment, which reads as under:

“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