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2011 DIGILAW 546 (ALL)

Sone Lal v. State of U. P.

2011-03-04

SHRI NARAYAN SHUKLA

body2011
Shri Narayan Shukla, J.;- Appellant Sone Lal has filed this appeal against the judgment and order dated 28.4.2006, passed by Additional Sessions Judge (Court No. 4), Barabanki in criminal trial No. 12 of 2001 relating to the Police Station Kotwali,District Barabanki; whereby the appellant was convicted for the offence punishable under Section 8/21(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 (Hereinafter referred to as Act) and was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rupee one lac and in default of payment of fine to further undergo imprisonment for a period of two years. 2. I have heard Mr. Anil Kumar Pandey, learned counsel for the appellant as well as Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate for the State and perused the record of the case. 3. Learned counsel for the appellant has not challenged the merit of his conviction and sentence passed by the court below. He only contended that the appellant is a poor person and it was his first offence and there is no previous conviction on his credit and he has undergone substantive sentence of imprisonment awarded to him and now he is in jail because he is not in a position to pay the fine imposed on him which is excessive and it should either be reduced or the sentence of imprisonment in default of payment of fine be reduced. 4. In support of his contention he cited a decision of Hon'ble Supreme Court rendered in the case of Shanti Lal Vs. State of M.P. reported in 2008 (60 ) ACC 34, in which Hon'ble the Supreme Court has reduced the term of imprisonment that was awarded in default of payment of fine of Rupee one lakh from three years to six months and in the present case the sentence awarded in default of payment of fine is only two years so it must be reduced to the period of three months as has been done in Criminal Appeal No. 1486 of 2009 Asharfi Lal Vs. State of U.P. decided by this Court by Hon'ble Mr Justice Y.K.Sangal. 5. In the case of Shanti Lal (supra) the Hon'ble Supreme Court has held as follows:- "The next submission of the learned counsel for the appellant that however, has substance. The term of imprisonment in default of payment of fine is not a sentence. State of U.P. decided by this Court by Hon'ble Mr Justice Y.K.Sangal. 5. In the case of Shanti Lal (supra) the Hon'ble Supreme Court has held as follows:- "The next submission of the learned counsel for the appellant that 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 nonpayment 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." 6. The Hon'ble Supreme Court in the aforesaid case further held as follows; " 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 imposable 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, CrPC 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, CrPC 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." 7. Learned AGA contended that the appellant was found guilty for the offence punishable under Section 8/21 of the Act and he has been awarded ten years rigorous imprisonment to pay a fine of Rupee one lakh and in default of payment of fine to further undergo imprisonment for a period of two years and, thus, the minimum sentence prescribed for the offence has been awarded to the appellant and as such the amount of fine of Rupee one lac imposed on the appellant cannot be reduced. He further contended that even on merit the appellant has no leg to stand and rightly he has not pressed this appeal on the merit of the conviction. 8. In the present case for the offence under Section 8/21 of the Act the minimum sentence provided is ten years rigorous imprisonment and a fine of Rupee one lac. The minimum sentence has already been awarded by the trial court. 8. In the present case for the offence under Section 8/21 of the Act the minimum sentence provided is ten years rigorous imprisonment and a fine of Rupee one lac. The minimum sentence has already been awarded by the trial court. Hon'ble the Supreme Court in Shanti Lal (supra) had held that the term of imprisonment in default of payment of fine is not a sentence and it is a penalty which a person incurs on account of non payment of fine. 9. Further more Section 421 Cr.P.C. provides that if an accused has undergone sentence in default of payment of fine, even then his liability to pay the fine does not come to an end. The court after recording special reasons may order for recovery of fine despite of the fact that accused has undergone imprisonment in default of payment of fine. In the case before Hon'ble the Supreme Court the appellant was convicted in default of payment of fine to undergo imprisonment for a period of three years while in the present case the appellant has been awarded two years imprisonment in default of payment of fine. Hon'ble the Supreme Court reduced the sentence in default of payment of fine to six months. 10. On the same proportion in the instant case if the imprisonment in default of payment of fine is reduced to the period already undergone, it will serve the ends of justice. 11. In view of above, the appeal should be allowed in part accordingly. 12. The appeal is, therefore, partly allowed. 13. The conviction recorded and the sentence imposed on the appellant to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rupee one lac is hereby confirmed, but the order that in default of payment of fine the appellant shall undergo imprisonment for two years is modified to the extent that in default of payment of fine the sentence awarded in lieu of fine is limited to the period already undergone. Since appellant is in jail, he shall be released forthwith, if not wanted in any other criminal cases.