M. Zothankhuma, J.

1. Heard Mr. R.K.D. Choudhury, learned DSGI, appearing for the appellant. Also heard Mr. B. Prasad, learned counsel for the respondents.

2. The instant appeal under Section 21(1) of the National Investigation Agency Act, 2008 read with Section 377, Code of Criminal Procedure, 1973 is preferred challenging the Final Order dated 26.07.2023 passed by the learned Special Court, NIA, Assam at Guwahati in Special NIA Case no. 02/2022 on the point of sentence. The two respondents herein were accused persons, who were chargesheeted in Special NIA Case no. 02/2022. Charges were framed against the two respondents as A-4 and A-5 by the learned Special Court under Section 120B, IPC and Section 38, Unlawful Activities (Prevention) Act, 1967. Before the learned Special Court, both the respondents by filing petitions, pleaded guilty to the charges and the learned Special Court after hearing the parties, has considered it appropriate to convict them and to pass sentences equal to the period of detention they have undergone as UTPs. The respondent no. 1 had spent about one year two months and twenty-four days and the respondent no. 2 had spent about one year three months and one day in incarceration on the date of the impugned Order dated 26.07.2023.

3. The appellant’s counsel submits that the learned Trial Court had sentenced the respondents to simple imprisonment for 6(six) months with a fine of Rs. 500/- each, in default, simple imprisonment for 14 (fourteen) days under section 120B IPC and rigorous imprisonment for the period already undergone under section 38 of the UA(P) Act, 1967, which were to run concurrently. He submits that the period of detention spent as Under Trial Prisoners (UTP) could not be considered to be rigorous imprisonment. The period of imprisonment as a UTP not being rigorous in nature, the said sentence of rigorous imprisonment cannot be set off against his detention period as a UTP.

4. The learned counsel for the appellant further submits that when it is not denied by the respondents that they were members of a terrorist organization, the sentence imposed upon the respondents by the learned Trial Court was too lenient and inadequate. The learned Trial Court should have sentenced the respondents to a more severe sentence, to serve as a deterrent and an example to others, not to join a terrorist organization. He submits that as the respondents are members of a terrorist organization, the learned Special Court, NIA, should have considered the gravity and seriousness of the offence, by imposing a more severe sentence. He also submits that in the case of Surjit Singh Vs. Nahara Ram & Anr. reported in (2004) 6 SCC 513, the Supreme Court had held that the protection of society and stamping out criminal proclivity must be the object of law, which must be achieved by imposing appropriate sentences. It further held that undue sympathy to impose inadequate sentence would do more harm to the justice system and undermine the public confidence in the efficacy of law and justice. Thus it held that it was the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.

5. He submits that in the present case, though no act has been done by the respondents, except for being a member of a terrorist organization, proper reasons should have been provided by the learned trial Court, before awarding such lenient sentences to the respondents. He submits that the decision of the Supreme Court in the above case of Surjit Singh (Supra) has also been reflected in the case of State of Madhya Pradesh Vs. Santosh Kumar reported in (2006) 6 SCC 1. In this case the High Court had reduced the sentence imposed by the learned Trial Court. The High Court imposed a sentence below the prescribed minimum sentence. The Supreme Court set aside the High Court sentence and restored the sentence of the learned Trial Court. The case relates to sexual abuse of a 6 year old child.

6. The learned counsel thus submits that when the offence/charge has been proved, the learned Trial Court should have imposed a punishment befitting the crime, so that Courts reflect public abhorrence of the crime. He thus submits that appropriate punishment is to be awarded depending upon the gravity of the crime committed by an accused. He accordingly prays that the sentence awarded to the respondents should be enhanced, which should be commensurate with the gravity of the offence admitted by them.

7. On the other hand, Mr. B. Prasad, learned counsel for the respondents submits that the sentence of rigorous imprisonment awarded by the learned Trial Court can be set off against the period of incarceration undergone by a UTP under section 428 Cr.P.C. He also submits that the sentence imposed upon by the learned Trial Court is within its competence and within the limits of the provisions of section 38 of the UA(P) Act, 1967. The sentence to be awarded being a matter of discretion, this Court should not interfere with the same, unless the same had been imposed in violation of the concerned provision of law. He submits that when the sentence has been awarded in terms of the concerned provision of law, this Court should not interfere with the same.

8. We have heard the learned counsels for the parties.

9. Two issues have to be considered in this case. Firstly, whether the sentence of rigorous imprisonment can be set off against the period of incarceration undergone as a UTP. Secondly, whether this Court should enhance the sentence imposed upon the respondents by the learned Trial Court, on the ground that the sentence imposed was too lenient, though there is no illegality in the sentence imposed.

10. With regard to the first issue, we would have to see the provision of section 428 Cr.P.C., which is as follows :-

                   “428. Period of detention undergone by the accused to be set off against the sentence of imprisonment - Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him:

                   (Provided that in cases referred to in section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section.)

11. A reading of section 428 Cr.P.C. shows that the same provides for “setting off” the sentence imposed for imprisonment at the conclusion of the trial against the period of detention undergone by an UTP. We do not find any bar in section 428 Cr.P.C. for “setting off” the sentence imposed for rigorous imprisonment against the period of detention undergone by a UTP in jail. Section 428 Cr.P.C. does not say that “set off” of the detention period of a UTP will only be in relation to a sentence of simple imprisonment. The provision provides for “set off” against the term of imprisonment imposed on an accused on his conviction. This “setting off” the imprisonment imposed, is not limited to only simple or rigorous imprisonment. There is nothing stated in the said provision that it would apply only to sentence involving simple imprisonment or sentence involving rigorous imprisonment only. It is applicable to all types of imprisonment imposed. When the Cr.P.C. does not bar the sentence of rigorous imprisonment from being set off, there is no justification for coming to a different interpretation. As such, we are of the view that the sentence of rigorous imprisonment awarded to a convicted accused, can be “set off” against the period of detention already undergone by an UTP.

12. The next issue to be considered is whether the appellate Court can/should enhance the sentence imposed upon a convict, on the ground that the sentence awarded by the learned Trial Court was too lenient, even-though the sentence awarded was not in violation of the provisions under which it had been awarded.

13. In the case of Surjit Singh (Supra), the Supreme Court held that appropriate sentence should be imposed, having regard to the nature of the offence and the manner in which it was executed or committed. It further held that the criminal law adheres in general to the principle of proportionality, in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. It held that Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. In the said case, the Supreme Court held that the High Court was not justified in reducing the custodial sentence. The above case pertains to the High Court reducing the sentence imposed by the learned Trial Court under section 326 IPC and section 27 of the Arms Act. The High Court order was set aside and the sentence imposed by the learned Trial Court was restored by the Hon’ble Supreme Court.

14. In the case of Santosh Kumar (Supra), the Supreme Court held that in order to exercise the discretion of reducing the sentence, the statutory requirement is that the Court has to record "adequate and special reasons" in the judgment and not fanciful reasons, which would permit the Court to impose a sentence less than the prescribed minimum. The reason has not only to be adequate but also special. However, in the present case, the question is with regard to whether this Court should enhance the sentence imposed by the learned Trial Court, even though the sentence imposed by the learned Trial Court was a permissible sentence under the charge framed against the respondents.

15. In the case of Santosh Kumar (Supra),, it was further held that undue sympathy to impose inadequate sentence would do more harm to the justice system, to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The Supreme Court in the above case thus held that the High Court had reduced the sentence below the minimum sentence prescribed for conviction in a case of rape of a girl of 6 years. It was in that context that the Supreme Court had upheld the sentence given by the learned Trial Court and set aside the sentence imposed by the High Court.

16. In the case of Dhananjoy Chatterjee vs. State of W.B. reported in (1994) 2 SCC 220, the Supreme Court held that the imposition of appropriate punishment is a manner in which the Court responds to the Society’s cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime, so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal, but also the rights of the victim of the crime and the society at large, while considering the imposition of appropriate punishment. This case pertains to a rape and murder of a girl of 18 years by a security guard of the building where she lived with her parents.

17. In the case of Ravji v. State of Rajasthan, reported in (1996) 2 SCC 175, the Supreme Court held that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed, not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated. The above case was with regard to the appellant murdering five persons, including his wife and three minor sons.

18. In the present case, the respondents have been convicted under section 120B IPC and section 38 of UA(P) Act, 1967. The challenge made to the sentence imposed by the learned Trial Court is with regard to section 38 of the UA(P) Act, which is as follows :-

                   “38. Offence relating to membership of a terrorist organisation.-(1) A person, who associates himself, or professes to be associated, with a terrorist organisation with intention to further its activities, commits an offence relating to membership of a terrorist organisation:

                   Provided that this sub-section shall not apply where the person charged is able to prove-

                   (a) that the organisation was not declared as a terrorist organisation at the time when he became a member or began to profess to be a member; and

                   (b) that he has not taken part in the activities of the organisation at any time during its inclusion in the '[First Schedule] as a terrorist organisation.

                   (2) A person, who commits the offence relating to membership of a terrorist organisation under sub-section (1), shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both.”

19. As can be seen from section 38 of UA(P) Act, which is the statutory law made by the Parliament, the sentence that can be imposed under section 38 is for imprisonment for a term not exceeding 10 years, or with fine, or with both. As such, the learned Trial Court could have given a sentence of 1(one) day to 10(ten) years. It could also pass a sentence of “fine only” or imprisonment with fine. In the present case, the learned Trial Court has sentenced the respondents with imposition of rigorous imprisonment under section 38 of UA(P) Act for the period already undergone by the respondents as UTPs, besides imposing a fine of Rs. 500/- each. The sentence imposed by the learned Trial Court is clearly within the competence of the learned Trial Court and the reasons for imposition of the sentences is reflected in para 14,15 and 16 of the impugned order dated 26/07/2023 passed by the Special (NIA) Court, which are as follows :-

                   “14) From the above, it can be seen that neither of the two convicts are accused of being involved in any violent act. Their involvement is limited to being members of a proscribed organization and it appears that they were involved in spreading some activities of the organization i.e. CPI (Maoist) and were also involved in protest, rallies etc. and other logistical tasks and also publishing of magazines for a limited period of time.

                   15) The convict A-4 has been under incarceration for about one year, 2 months and 24 days.

                   16) The convict A-5 has been under incarceration for about one year, 3 months and 1 day.”

20. When the learned Trial Court has given it’s reasons for imposing the sentence, which is within it’s competence and within the four corners of section 38 of the UA(P) Act, we do not find any reason to substitute our views, even if we are to assume that the sentence imposed was either too lenient or severe. Just because two views are possible, there is no reason for us to substitute our views vis-à-vis the view of the learned Trial Court, with regard to the proper sentence to be imposed upon the respondents.

21. The above being said, the Supreme Court in the case of Bed Raj Vs. State of U.P. reported in 1955 AIR(SC) 778 held that a question of a sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person, except for very strong reasons which must be disclosed on the face of the judgment. It further held that in the matter of enhancement there should not be interference when the sentence passed imposes substantial punishment. Interference is only called for when it is manifestly inadequate.

22. In the present case, the sentence has been imposed by the learned Trial Court, after exercising it’s discretion. When the law makers have provided the parameters under which a sentence is to be imposed and the learned Trial Court has exercised it’s discretion within the said parameters, there is no valid justification for the appellate Court to enhance the sentence, just because the Appellate Court may have a view that the sentence imposed was too lenient or too severe. To substitute our discretion over the discretion of the learned Trial Court, though both views/discretion are valid and possible, regarding the inadequacy of a sentence or otherwise, would be tantamount to trampling over the discretionary power given to the learned Trial Court, to award a sentence as it thinks fit and proper under section 38 of the UA(P) Act, 1967

23. This is not a case where a sentence has been imposed below the minimum period of imprisonment required to be given under the relevant statutory provision. The learned Trial Court has imposed the sentence by exercising it’s discretion and in terms of the statutory provision. The question of whether a sentence is too lenient or severe will depend on how an individual Judge exercises it’s discretion and the determination of the same can be on consideration of a myriad of reasons. So long as the discretion applied is not shown to be for extraneous or totally irrelevant or unjustifiable/arbitrary reasons and the sentence imposed is permissible to be imposed, as per the statute, we are unable to convince ourselves that a sentence should be altered, only because we are the appellate Court and our view on the adequacy of sentence may be different from the learned Trial Court. We do not find any reason to enhance the sentence imposed upon the respondents by the learned Trial Court just because a difference view on the adequacy of the sentence may be made by the Appellate Court, so long as the discretion applied by the learned Trial Court is on accepted judicial lines and in terms of the statute. There is also nothing to show that the sentence imposed is manifestly inadequate.

24. On considering the facts of this case and in view of the reasons stated above, we do not find any justifiable reason to enhance the sentence, just because a different view on the sentence is possible.

25. The appeal is accordingly dismissed.