JUDGMENT : 1. Heard further argument and the judgment is as follows : 2. Both the Appellants faced the trial in T.R. Case No. 225 of 2001 in the Court of Sessions Judge-cum-Special Judge, Koraput camp at Malkangiri. The offence alleged is u/s 20(b)(ii) of the N.D.P.S. Act on the allegation of carrying 22 Kgs and 600 grams of ganja in a scooter bearing Registration No. OSP-4994. They were intercepted and searched at about 8.30 p.m. on 09.12.2001. 3. Accused denied to the charge and claimed for trial. To substantiate the charge, prosecution examined nine witnesses and relied on documents vide Exts.1 to 14. Amongst them, Ext.14 is the chemical examination report confirming to the fact that the seizure article was ganja. M.Os. 1 and 2 are the two bags in which seized ganja was being carried. No defence evidence was adduced by the accused persons. 4. On assessment of evidence, learned Sessions Judge found that fact of recovery of ganja from the possession of the accused persons in transit was proved and accordingly held them guilty u/s 20(b)(ii) (C) of the N.D.P.S. Act and sentenced each of them to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lakh each and in default to undergo rigorous imprisonment for two years by each of them. 5. Learned counsel for the Appellant referring to the evidence of witnesses states that the witnesses to the search and seizure are contradictory in their evidencl relating to the time when accused persons were intercepted and the manner in which recovery was made. Learned counsel for the State, on the other hand, relying on the self-same evidence of the prosecution states that there is no contradiction on material particulars and therefore the findings recorded by the trial Court should be upheld. In that respect, the trial Court has dealt with the aforesaid contention raised by the accused Appellants and held that notwithstanding the minor contradictions, evidence of those witnesses relating to search and seizure is reliable and acceptable. On perusal of such evidence, this Court finds that the findings of the trial Court to be correct. 6. Learned counsel for the Appellants also argues that at the time of search precaution as provided u/s 50 of the N.D.P:S. Act was not followed by securing attendance of Magistrate or Gazetted Officer. On perusal of such evidence, this Court finds that the findings of the trial Court to be correct. 6. Learned counsel for the Appellants also argues that at the time of search precaution as provided u/s 50 of the N.D.P:S. Act was not followed by securing attendance of Magistrate or Gazetted Officer. In that respect, the evidence of searching officer and the concerned seizure list clearly stipulates that the accused persons did not opt for being produced before a Gazetted Officer or a Magistrate. Therefore, this belated plea in the appellate forum bears no merit. 7. Learned counsel for the Appellants, alternatively, argues that since the Appellants have already detained in the jail custody from the date oftheir arrest on 11.12.2001, therefore, they have already suffered imprisonment for about eight years. He also states that there is nothing on record to indicate that the Appellants are habitual offenders, thus, keeping in view the aforesaid facts and circumstances, at least the default sentence on payment of fine may be reduced from two years to six months. In furtherance of that submission, he relies on the case of Shanti Lal v. State of Madhya Pradesh 2007 8 supreme Court 263. Learned counsel for the State submits that the circumstance, as it appeared in the cited case, has not been substantiated by the accused in the present case and therefore there should not be reduced default sentence. 8. While dealing with a similar matter, Hon'ble Apex Court held in paragraph-36 of that judgment: We are mindful and conscious that the present case is under the NDPS Act. Section 18 quoted above provides penalty for certain offences in relation to opium poppy and opium. Minimum fine contemplated by the said provision is rupees one lakh [fine which shall not be less than one lakh rupees]. It is also true that the Appellant has been ordered to undergo substantive sentence of rigorous imprisonment for ten years which is minimum. It is equally true that maximum sentence impossible on the Appellant is twenty years. The learned Counsel for the State again is right in submitting that clause (b) of Sub-Section (1) of Section 30, Code of Criminal Procedure authorizes the Court to award imprisonment in default of payment of fine up to one-fourth term of imprisonment which the Court is competent to inflict as punishment for the offence. The learned Counsel for the State again is right in submitting that clause (b) of Sub-Section (1) of Section 30, Code of Criminal Procedure authorizes the Court to award imprisonment in default of payment of fine up to one-fourth term of imprisonment which the Court is competent to inflict as punishment for the offence. 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 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. 9. In this case admittedly there is no evidence from the side of the prosecution about any criminal antecedence of the accused persons or they being habitually dealing with drug trafficking. Considering that aspect, this Court adopts above quoted ratio and reduce the default sentence to a period of six months of rigorous imprisonment in default of payment of fine of Rs. 1 lakh by each of the Appellants. In the result, the Criminal Appeal is allowed in part, inasmuch as, the order of conviction and sentence for the offence u/s 20(b)(ii)(c) is maintained so also the substantive sentence imposed on them but the default is reduced from two years to six months. Final Result : Allowed