Point of Law: though an amount of payment of fine of rupees one lakh which is minimum as specified in Section 18 of the Act cannot be reduced in view of the legislative mandate, ends of justice would be met if we retain that part of the direction, but order that in default of payment of fine of rupees one lakh, the appellant shall undergo rigorous imprisonment for six months instead of three years as ordered by the trial court and confirmed by the High Court.”

JUDGMENT :

AJIT SINGH, J.

1. The instant appeal has been preferred against the impugned judgment and order dated 19.06.2008 passed by the Additional Sessions Judge/Fast Track Court, Court No. 2, Siddharth Nagar in Special Sessions Trial No. 11 of 2008 (State Versus Ram Teerth) arising out of Case Crime No. 11 of 2008, Police Station Dhebrua, District Siddharth Nagar whereby the appellant has been convicted under Section 20(b)(ii)(c) of N.D.P.S. Act and has been sentenced to undergo 12 years rigorous imprisonment with a fine of Rs. 1,20,000/-. In default of payment of fine, he has to undergo three years additional rigorous imprisonment.

2. Heard Sri. Ravindra Balkrishna Kanhere, learned counsel for the appellant as Amicus Curiae as well as learned A.G.A. for the State.

3. Learned counsel for the appellant has argued on merits but later on confined his arguments on the quantum of sentence as the appellant has already served the sentence awarded to him by the trial court and at present he is in jail in default of fine. According to the prosecution itself, he was arrested by the police on 11.01.2008 and is continuously in jail since the date of his arrest i.e. 11.01.2008. It is further stated that since the appellant has already undergone substantive period of sentence imposed upon him by the trial court, now his prayer is confined only for reduction of remaining period of imprisonment and the period which he has to undergo in default of payment of fine for a period of three years' additional rigorous imprisonment. In this behalf, it has been submitted that since higher than minimum punishment prescribed under N.D.P.S. Act upon the conviction under Section 20(b)(ii)(c) of N.D.P.S. Act has been awarded by the trial court to the appellant without assigning special reason and without even adverting Section 32(B) of N.D.P.C. Act, the sentence imposed by the trial court of 12 years rigorous imprisonment cannot be sustained.

4. Learned counsel for the appellant has submitted that the appellant is a very poor person and even during trial there was none to do proper pairvi on his behalf on account of financial constraint. Therefore, he is unable to deposit the heavy amount of fine imposed upon him by the trial court. It is stated that only on account of poverty, he has to undergo three years additional rigorous imprisonment in default of payment of fine.

5. Learned A.G.A. has opposed the aforesaid prayer of the learned counsel for the appellant.

6. I have considered the rival submissions made by learned counsel for the parties and perused the impugned judgment and order.

7. The issue which next arises for consideration is that whether the sentence awarded to the appellants which is higher than the minimum sentence prescribed under the Act for a person convicted under Sections 20(b)(ii)(c) of N.D.P.S. Act of the NDPS Act is unduly harsh, excessive disproportionate and arbitrary and the same has been imposed, without assigning any reasons and without taking into consideration of provisions of Section 32(B) of the NDPS Act and hence liable to be modified. The minimum punishment prescribed for conviction under Section 20(b)(ii)(c) of N.D.P.S. Act is 10 years R.I. And a fine of Rs. 1 lakh. Section 32(B) of the NDPS Act enumerates the factors to be taken into account for imposing higher than the minimum punishment. It will be useful to reproduce Section 32(B) of the NDPS Act herein-below:

“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 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 committi