S.32B NDPS Act | Trial Court Must Assign Specific Reasons For Imposing Higher Than Minimum Sentence Prescribed: Orissa High Court

The Orissa High Court has held that the trial Courts must avoid giving generic reasons and must provide specific factors while imposing higher than the minimum sentences prescribed under the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’).

While clarifying the mandate under Section 32B of the Act, which provides for factors to be taken into account for imposing higher than the minimum punishment, the Single Judge Bench of Justice Sangam Kumar Sahoo held,

“It is not at all advisable for the trial Court to provide general reasons without being specific as to which particular factor appealed to its judicial mind for which it was compelled to resort to the exceptions provided under section 32-B rather than following the main provision. Failure on the part of the concerned Court to pass a reasoned order of sentence leads to unwanted and blatant infringement of the precious right to liberty of a convict.”

The appellants were held for carrying 316 KGs and 150 Grams of contraband ganja in two vehicles. After completion of investigation, charge-sheet was filed against them. The Sessions Judge-cum-Special Judge, Ganjam found the present appellants guilty for commission of offence under Section 20(b)(ii)(C), which deals with transportation of commercial quantity of contraband.

Accordingly, they were convicted under the aforesaid provision and the trial Court sentenced them to undergo rigorous imprisonment for eleven years and to pay a fine of Rs. 1,00,000/- (Rupees One Lakh) each. Being aggrieved by such order, they approached the High Court filing appeals.

The counsel appearing for the appellants did not dispute the order of conviction, rather merely challenged the imposition of rigorous sentence of eleven years on the appellants. He argued that though the minimum sentence prescribed under section 20(b)(ii)(C) is ten years, the trial Court erred in not considering the mandate under Section 32B of the Act and imposing higher than the minimum sentence.

Court’s Observations

Section 32B provides that where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under the Act, the court may, in addition to such factors as it may deem fit, take into account the factors prescribed under the Section for imposing a punishment higher than the minimum term of imprisonment or amount of fine.

The Court relied upon its earlier decision in Sambhulal Tibrewal v. State of Odisha, 2017 Supp. (II) OLR 358 and Rajesh K.R. & Anr. v. State of Odisha, (2021) 84 OCR 309 wherein it had held that trial Court must have due regard for the stipulation provided under Section 32B before it imposes a sentence higher than the minimum period prescribed.

After having a cautious glance on the reasons assigned by the trial Court while imposing eleven years of rigorous imprisonment on the appellants, the Court held,

“…the factors taken into account by it are generic and mechanical in nature and hardly any reason has been indicated for which it can be said that the learned Court was justified in flouting the mandate under section 32-B of the N.D.P.S. Act for imposing higher than the minimum sentence.”

The Court referred to the judgment of the Supreme Court in Gurdev Singh v. State of Punjab, wherein it was held that while imposing the punishment higher than the minimum term of imprisonment or amount of fine, the Court may take into account such factors “as it may deem fit” and also the factors enumerated/mentioned in Section 32B of the Act.

Considering the point of law enunciated and elaborated in the aforesaid precedent, the Court observed,

“…this is clarified that even though no doubt the factors stipulated under section 32-B are not exhaustive and learned trial Court has the authority to take into account some additional factors beyond the ones prescribed under the said provision, but it has to be particular as to why it deems apposite to impose a higher punishment. In other words, it must specify reasons which made it to opine that a specific factor is grave enough to attract higher punishment than the minimum prescribed sentence.”

In the case in hand, the Court was of the view, the trial Court did not take into consideration the aforesaid position of law and without assigning specific reasons, simply proceeded on to pass the order of sentence, which was higher than the minimum prescribed sentence. Accordingly, the sentence was modified from rigorous imprisonment for eleven years to rigorous imprisonment for ten years.

Case Title: Kamal Franklin Patra @ Raja v. State of Odisha and other connected cases

Case No.: CRLA No. 36 of 2014 & other connected appeals

Date of Judgment: September 14, 2023

Counsel for the Appellants: Mr. Rajib Bihari Mishra, Advocate

Counsel for the State: Mr. Arupananda Das, Additional Government Advocate

Citation: 2023 LiveLaw (Ori) 99

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