Rajul Bhargava, J. - The instant appeal has been preferred against the impugned judgement and order dated 5.3.2009 passed by Additional Sessions Judge, Court No. 15, Kanpur Nagar in Sessions Trial No. 868 of 1999 (State v. Safil Ahmad) arising out of Case Crime No. 64 of 1999, Police Station Bazariya, District Kanpur 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 15 years rigorous imprisonment with a fine of Rs. 1,50,000/. In default of payment of fine, he has to undergo two years additional imprisonment.

2. Heard Sri Mahesh Chandra Joshi, learned counsel for the appellant as well as learned A.G.A. for the State.

3. At the very outset, learned counsel for the appellant has fairly stated that he does not propose to challenge the impugned judgement and order on its merits as instructed by his client inasmuch as the appellant has remained in incarceration for about 11 years in jail. According to the prosecution itself, he was arrested by the police on 19.5.1999 and released on bail in the year 2001. The appellant is continuously in jail since the date of his conviction i.e. 05.03.2009. 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 two years additional 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 15 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 two years additional imprisonment in default of payment of fine. Learned counsel for the appellant has submitted that since appellant has undergone 11 years of sentence imposed upon him by the trial court, he has prayed that period of sentence of 15 years rigorous imprisonment may be reduced to the period of 11 years which he has already undergone and period of imprisonment for two years in default of payment of fine may also be reduced to the period of three months imprisonment.

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 judgement 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 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 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 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.]"

8. After going through the impugned judgement and order very carefully, I find that the trial court while imposing higher than the minimum punishment prescribed under the NDPS Act on conviction under Section 20(b)(ii)(c)of N.D.P.S. Act 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 judgement which lead the trial court to impose higher than the minimum punishment prescribed under the upon the appellant.

9. The learned counsel has placed reliance on the law laid down by the Honble Apex in (2008) 1 SCC (Cri) 1, Shanti Lal v. State of M.P., in which the Honble Apex Court, almost under the similar circumstances, has reduced the sentence awarded to the accused-appellant in default of payment of fine from three years to six month by observing as under:

"But considering the circumstances placed before us on behalf of the appellant-accused that he is very poor; he is merely a carrier; he has to maintain his family; it was his first offence; because of his poverty, he could not pay the heavy amount of fine (rupees one lakh) and if he is ordered to remain in jail even after the period of substantive sentence is over only because of his inability to pay fine, serious prejudice will be caused not only to him, but also to his family members who are innocent. We are, therefore, of the view that though an amount of payment of fine of rupees one lakh which is minimum as specified in Section 18 of thecannot 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."

10. A perusal of the record shows that the appellant was arrested by the police on 19.5.1999. During trial he was released on bail and since his conviction, he is continuously in jail because no order has been passed on his bail application filed before this court along with this appeal.

11. Thus, it is clear that the appellant has undergone 11 years of his sentence and he has prayed that period of sentence of 15 years rigorous imprisonment may be reduced to the period of 11 years which he has already undergone and period of imprisonment for two years in default of payment of fine may be reduced to the period of three months imprisonment.

12. Taking into account the totality of the facts and circumstances of the case and relying on the law laid down by Honble Apex Court in the above cited Shanti Lals case, period of sentence of 15 years rigorous imprisonment is reduced to the period of 11 years rigorous imprisonment as already undergone by him and the period of imprisonment for two years in default of payment of fine is reduced to the period of three months imprisonment.

13. Accordingly, the appeal is partly allowed. The appellant shall be released after the period of sentence as indicated herein above, is over.

14. The seized contraband shall be destroyed by the officer concerned in accordance with the notifications issued under Section 52A of The Narcotic Drugs and Psychotropic Substances Act.

15. Let a copy of this judgement and order be sent to the court below within a week for ensuring its compliance.