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REPORTABLE   

IN THE SUPREME COURT OF INDIA  

 CRIMINAL APPELLATE JURISDICTION  

 CRIMINAL APPEAL NO.567 OF 2019  

(arising out of SLP(CRL.) No.10246 of 2018)  

RAFIQ QURESHI           .... APPELLANT(S)  

VERSUS  

NARCOTIC CONTROL BUREAU   

EASTERN ZONAL UNIT            .... RESPONDENT(S)  

J U D G M E N T  

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

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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

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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

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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

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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 contravention  

of any provision of this Act or any rule  

or order made or condition 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 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 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

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commercial quantity, with rigorous  

imprisonment for a term which shall  

not be less than ten years but which  

may extend to twenty years 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 was inserted by Act 9 of 2001 in the  

Narcotic Drugs and Psychotropic 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 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

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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 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 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 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

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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 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 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 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

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relating to illicit trafficking 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 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  

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 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 (a) to (f) enumerates various factors for  

imposing a punishment higher 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

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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 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 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 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

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punishment higher than the minimum term of  

imprisonment or fine;  

(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 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 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 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

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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 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  

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 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

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or which results in rejection of words as  

meaningless has to be avoided. It is contrary  

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 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 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 Court referring to Section  

32B of the Act stated following in paragraphs 39 and  

40:  

“39. After going through the impugned judgment  

and order very carefully, I find that the trial

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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 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.  

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 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 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 ground. There are two other judgments of  

learned Single Judges of Allahabad High Court which

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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:  

“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 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 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 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 of fine,

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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 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 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 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.   

22.  In view of the foregoing discussion, we are of  

the view that punishment awarded by the trial court of

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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 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 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 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

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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 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  

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.  

...............................J.  

   ( ASHOK BHUSHAN )  

...............................J.  

   ( K.M.JOSEPH)  

NEW DELHI,  

May 07, 2019.