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2011 DIGILAW 237 (CHH)

AJAY KUMAR VERMA v. STATE OF C. G.

2011-07-18

PRASHANT KUMAR MISHRA

body2011
JUDGMENT 1. In this appeal filed by the prisoner, challenge has been made to the conviction imposed upon him for offence under Section 20 (b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') and award of sentence of R.I. for 5 years and fine of Rs.20,000/-, in default of payment fine, additional R.I. for 1 1/2 years. 2. The appellant was found to be in possession of 15 kg of contraband (Ganja) when a search was made of his motorcycle on 20th June, 2006 on receiving secret information that the appellant is traveling along with contraband. 3. At the outset, learned counsel for the. appellant, who has been engaged by the High Court Legal Aid Committee, would submit that the appellant is not pressing this appeal on merits, as he has already undergone the entire substantive jail sentence of 5 years and is presently undergoing the jail sentence imposed upon him in default of payment of fine of Rs.20,000/-. He would submit that the appellant is a very poor person and was not able to furnish bail bonds in spite of the fact that he was released on bail by an order of this Court passed on 28th April, 2009. 4. Learned counsel would submit that default sentence deserves to be reduced in the interest of justice and looking to the fact that he has already undergone the substantive jail sentence and is presently in jail on account of non-payment of fine of Rs.20,000/-. He would rely on the judgment of the Supreme Court in the matter of Shanti Lai Vs. State of M.p.1. 5. On the other hand, learned counsel for the State would submit that looking to the quantity of the contraband, the appellant is not entitled for any leniency and the appeal on this ground deserves to be dismissed. 6. In para-20 of the impugned judgment, it has been mentioned by the learned trial Court that the appellant is in continuous incarceration w.e.f. 20th June, 2006. 7. In the matter of Shanti Lal1 (supra), the Hon'ble Supreme Court, in para-27 of the judgment, has held thus:- "The next submission of the learned counsel for the appellant, however, has substance. The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. In the matter of Shanti Lal1 (supra), the Hon'ble Supreme Court, in para-27 of the judgment, has held thus:- "The next submission of the learned counsel for the appellant, however, has substance. The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or 'otherwise'. A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount. It is, therefore, not only the power, but the duty of the court to keep in view the nature of offence, circumstances under which it was committed, the position, of the offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment of fine." 8. While prescribing the term of imprisonment in default of payment of fine, it was held by the Hon'ble Supreme Court that it is the duty of the Court to keep in view the nature of offence, circumstances under which it was committed, the position of the offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment of fine. 9. In the above referred case of Shanti Lall, the accused was convicted under Section 18 of the Act and on consideration, amongst other things, that the accused was very poor, the Hon'ble Supreme Court reduced the term of imprisonment in default of payment of fine from 3 years to 6 months. 10. In the present case also, the trial Court has directed the appellant to pay a fine of Rs.20,000/- and in default of payment of fine to further undergo additional R.I. for 1 1/2 years. 11. 10. In the present case also, the trial Court has directed the appellant to pay a fine of Rs.20,000/- and in default of payment of fine to further undergo additional R.I. for 1 1/2 years. 11. Relying on the judgment of the Supreme Court, particularly, in view of the fact that in this appeal, the appellant is very poor and has not been able to furnish bail bonds and sureties in spite of there being an order of release in his favour and that he has already completed substantive jail sentence, this Court, in exercise of its judicial discretion, reduces the term of imprisonment in default of payment of fine from 1 1/2 years, as imposed by the trial Court, to 2 months. 12. In the result, the appeal is allowed in part. While maintaining conviction and substantive jail sentence, the impugned judgment is modified to the extent of imposition of term of imprisonment in default of payment of fine and the same is reduced from 1 1/2 years to 2 months. If the appellant has undergone substantive sentence of rigorous imprisonment for 5 years as also rigorous imprisonment for 2 months as modified by me in default of payment of fine, the appellant shall be set at liberty forthwith unless he is required in any other offence. If the appellant has not completed the said period, he will be released after the period indicated hereinabove is over. Appeal Partly Allowed.