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Madhya Pradesh High Court · body

2014 DIGILAW 19 (MP)

Ansar Khan Sherani v. State of M. P.

2014-01-06

J.K.MAHESHWARI, P.K.JAISWAL

body2014
JUDGMENT : J.K. MAHESHWARI, J. 1. Being aggrieved by the judgment dated 22-9-2007 passed by the Special Judge (NDPS), Ratlam, in Special Sessions Trial No. 12/2004 convicting the appellant for the charges under section 8/18(b) of the NDPS Act (hereinafter it be referred to as the Act) and sentenced to undergo 15 years' RI and fine of Rs. 1,00,000/- in default of fine RI for six months; this appeal has been preferred by the appellant under section 374 of Criminal Procedure Code. 2. The prosecution story in brief is that, on 13-2-2004, Superintendent of Police, Ratlam received information to the effect that at Nagra Route near Village Sanawad in a house situated in the field of Dr. Ansar and his brother Ashiq Sherani, illegal extraction of Opium is going on. After recording such intimation, a Panchnama was prepared thereafter permission under section 42 of the Act was sought from the DIG, Ujjain. Immediately SHO, Ratlam was directed to act upon the said information. On receiving the information by the SHO and after completing the formalities, raid was conducted. On the spot when the accused persons found them, surrounded by police, the appellant caught hold on the spot, but the co-accused Ashiq Sherani escaped. In a personal search, nothing was found but in the search of the house situated in a field, three bags of the Opium were recovered. After completion of investigation, challan was filed in the Court. The appellant is in custody since beginning. The accused, in his defence, pleaded false implication on account of having quarrel with one police personnel i.e. Upadhyaya, Town Inspector against whom a complaint was made by him. After framing the charge, the evidence was recorded and the trial Court convicted the appellant for the charge under section 8/18(b) of the Act and directed to undergo the sentence of 15 years' RI with fine of Rs. 1,00,000/- and in default, to further undergo RI for six months. 3. Learned Counsel Shri A.K. Saraswat and Smt. Sudha Shrivastava appearing on behalf of the appellant have made an attempt to satisfy the Court that the provisions of sections 42, 50, 55 and 57 of the Act are mandatory which have not been complied with. However, the conviction of the appellant is based on the wrong interpretation of law, therefore, such finding may be set aside. However, the conviction of the appellant is based on the wrong interpretation of law, therefore, such finding may be set aside. After arguing for some time, it is contended by them that the appellant has already underwent the sentence of 9 years and 7 months for the said charge to which minimum sentence of 10 years has been prescribed, however, maintaining the minimum sentence of 10 years and reducing the sentence in lieu of fine i.e. six months to four months, the sentence may be modified maintaining the conviction. In support of such contention, reliance has been placed on a judgment of Hon'ble the Apex Court in the case of Balwinder Singh vs. Commissioner of Customs and Central Excise, 2005 (4) SCC 146. The reliance has also been placed on a judgment of Shahjad Khan Mahebub Khan Pathan vs. State of Gujarat, (2013) 1 SCC 570 . It is submitted that on completion of minimum sentence by reducing the sentence to 10 years and sentence in lieu of fine after completion of the said period, the appellant may be set at liberty. 4. Per contra, learned Government Advocate submits that though the appellant is a first offender, but looking to the bulk quantity of the Opium, the sentence as awarded of 15 years' RI should not be reduced to the minimum sentence of 10 years and in addition thereto looking to the quantity of the contraband, the sentence in lieu of fine amount should not be reduced and appeal may be dismissed. 5. After hearing learned counsel appearing on behalf of the parties, as learned counsel appearing on behalf of the appellant has opted only to argue on the point of sentence, however, looking to the finding as recorded by the trial Court, the conviction of appellant for the said charge is hereby maintained. On the point of reducing the sentence, the judgment of Balvinder Singh (supra) is relevant wherein, Hon'ble the Apex Court has reduced the sentence from 14 years to 10 years because the accused was the first offender. In the said case, quantity was more than the quantity seized in this case. Simultaneously, in the case of Shahjad Khan (supra) relying upon the judgment of Balvinder Singh (supra) while confirming the conviction for the charge under NDPS Act, the sentence of 14 years was reduced to 10 years. In the said case, quantity was more than the quantity seized in this case. Simultaneously, in the case of Shahjad Khan (supra) relying upon the judgment of Balvinder Singh (supra) while confirming the conviction for the charge under NDPS Act, the sentence of 14 years was reduced to 10 years. Considering the law laid down by Hon'ble the Apex Court in the said two judgments, in the facts of this case as the appellant is a first offender, the sentence of 15 years is hereby reduced to the minimum sentence of 10 years. 6. Now coming to the next argument of the appellant regarding default sentence in lieu of fine, it is seen that the trial Court has imposed the fine of Rs. 1,00,000/- which is minimum prescribed and in default, six months' sentence has been directed. 7. The general principle regarding imposition of the fine has been specified from sections 63 to 70 of Indian Penal Code whereby, it is clear that the amount of fine should not be harsh or excessive but it should be rational to the pecuniary position looking to the magnitude and its character. The Author Ratanlal and Dhirajlal in Law of Crimes 26th Edition observed as under:- “Death, imprisonment, transportation, banishment, solitude, compelled labour, are not, indeed, equally disagreeable to all men. But they are so disagreeable to all men that the legislature, in assigning these punishments to offences, may safely neglect the differences produced by temper and situation. With fine, the case is different. In imposing a fine, it is always necessary to have character and regard to the pecuniary circumstances of the offender as to the character and magnitude of the offence.' The mulct which is ruinous to a labourer is easily borne by a tradesman, and is absolutely unfelt by a rich Zamindar. It is impossible to fix any limit to the amount of a fine which will not either be so high as to be ruinous to the poor, or so low as to be no object of terror to the rich.” The Author while describing the measures to be adopted in non-payment of fine has observed as under:- “The authors of the Code observe: “The next question which it became our duty to consider was this: when a fine has been imposed, what measures shall be adopted in default of payment ? And here two modes of proceeding, with both of which we were familiar, naturally occurred to us. The offender may be imprisoned till the fine is paid, or he may be imprisoned for a certain term, such imprisonment being considered as standing in place of the fine. In the former case, the imprisonment is used in order to compel him to part with his money; in the latter case, the imprisonment is a punishment substituted for another punishment. Both modes of proceeding appear to us to be open to strong objections. To keep an offender in imprisonment till his fine is paid is, if the fine be beyond his means, to keep him in imprisonment all his life; and it is impossible for the best Judge to be certain that he may not sometimes impose a fine which shall be beyond the means of an offender. Nothing could make such a system tolerable except the constant interference of some authority empowered to remit sentences; and such constant interference we should consider as in itself an evil. On the other hand, to sentence an offender to fine and to a certain fixed term of imprisonment in default of payment, and then to leave it to himself to determine whether he will part with his money or lie in goal, appears to us to be a very objectionable course.” “We are far from thinking that the course which we propose is unexceptionable; but it appears to us to be less open to exception than any other which has occurred to us. We propose that, at the time of imposing a fine, the Court shall also fix a certain term of imprisonment which the offender shall undergo in default of payment. In fixing this term, the Court will in no case be suffered to exceed a certain maximum, which will vary according to the nature of the offence. If the offence be done which is punishable with imprisonment as well as fine, the term of imprisonment in default of payment will not exceed one-fourth of the longest term of imprisonment fixed by the Code for the offence. If the offence be one which by the Code is punishable only with fine, the term of imprisonment for default of payment will in no case exceed seven days.” 8. If the offence be one which by the Code is punishable only with fine, the term of imprisonment for default of payment will in no case exceed seven days.” 8. The said issue regarding imposition of sentence in lieu of fine came up for consideration in some of the cases. In the case of Emperor vs. Mendi Ali, AIR 1941 All. 310 , it was found that the accused was charged for an offence of murder of his wife. The facts were that the husband has seen his wife by his own eyes committing adultery, however, in a grave and sudden provocation he has killed his wife losing the power of self control. The Sessions Court imposed the maximum imprisonment of 10 years found him guilty under section 304 part 1 and also imposed fine of Rs. 100/- and in default directed to undergo RI for one year. The High Court in a suo-motu revision observed that the Sessions Court awarded maximum terms of sentence to the accused for the offence for he was found guilty and added to it a fine (which there could surely have been little prospect of his paying). The result was that he was, in effect, sentenced to eleven years' rigorous imprisonment. Justice Braund J. in this respect observed as under:- “So far as the fine is concerned, I cannot think it is proper, in the case of a poor peasant, to add to a very long term of substantive imprisonment a fine which there is no reasonable prospect of the accused man paying and for default in paying which he will have to undergo a yet further term of imprisonment. And, in my judgment, without venturing to say whether it is a course which is strictly in accordance with the law or not, I cannot help thinking that it becomes all the more undesirable to impose such a fine where the term of imprisonment to be undergone in default will bring the aggregate sentence of imprisonment to more than the maximum term of imprisonment sanctioned by the particular section under which he is convicted. I venture to think that Judges should exercise a careful discretion in the matter of superimposing fines upon long substantive terms of imprisonment. For these reasons I shall, in any case in revision, relieve the accused of his sentence to a fine.” 9. I venture to think that Judges should exercise a careful discretion in the matter of superimposing fines upon long substantive terms of imprisonment. For these reasons I shall, in any case in revision, relieve the accused of his sentence to a fine.” 9. In the case of Adamji Umar Dalal vs. State of Bombay, AIR 1952 (39) SC 14, Mahajan J. speaking for the Bench in Para 5 observed as under:- “The determination of the right measure of punishment is often a point of great difficulty and no hard and fast rule can be laid down, it being a matter of discretion which is to be guided by a variety of considerations, but the Court has always to bear in mind the necessity of proportion between an offence and the penalty. In imposing a fine it is necessary to have as much regard to the pecuniary circumstances of the accused persons as to the character and magnitude of the offence, and where a substantial term of imprisonment is inflicted, an excessive fine should not accompany it except in exceptional cases. It seems to us that due regard has not been paid to these considerations in these cases and the zeal to crush the evil of black-marketing and free the common man from this plague has perturbed the judicial mind in the determination of the measure of punishment.” Though, the said case relates to the economic offence but Hon'ble the Apex Court has reduced the amount of fine to 10% applying the principle of governing the imposition of a sentence of fine. 10. The Bombay High Court relying upon the said judgment in the case of State vs. Pandurang Tatyasaheb Shinde, AIR 1956 Bom. 711 observed that before imposing the sentence of fine, particularly a heavy fine, along with the sentence of death or life imprisonment, one must pause to consider whether the sentence of fine is at all called for and if so, what is a proper or adequate fine to impose in the circumstances of the case. 11. Hon'ble the Supreme Court in the case of Palaniappa Gounder vs. State of Tamil Nadu, (1977) 2 SCC 634 in Para 9 relying upon the said judgment held as under:- “But legitimacy is not to be confused with propriety and the fact that the Court possesses a certain power does not mean that it must always exercise it. 11. Hon'ble the Supreme Court in the case of Palaniappa Gounder vs. State of Tamil Nadu, (1977) 2 SCC 634 in Para 9 relying upon the said judgment held as under:- “But legitimacy is not to be confused with propriety and the fact that the Court possesses a certain power does not mean that it must always exercise it. Though, therefore, the High Court had, the power to impose on the appellant a sentence of fine along with the sentence of life imprisonment the question still arises whether a sentence of fine of Rs. 20,000/- is justified in the circumstances of the case. Economic offences are generally visited with heavy fines because an offender who has enriched himself unconscionably or unjustifiably by violating economic laws can be assumed legitimately to possess the means to pay that fine. He must disgorge his ill-gotten wealth. But quite different considerations would, in the generality of cases, apply to matters of the present kind. Thought there is power to combine a sentence of death with a sentence of fine that power in sparingly exercised because the sentence of death is an extreme penalty to impose and adding to that grave penalty a sentence of fine is hardly calculated to serve any social purpose. In fact the common trend of sentencing is that even a sentence of life imprisonment is seldom combined with a heavy sentence of fine. We cannot, of course, go so far as to express approval of the unqualified view taken in some of the cases that a sentence of fine for an offence of murder is wholly “inapposite” (See, for example, State vs. Pandurang Shinde, but before imposing the sentence of fine, particularly a heavy fine, along with the sentence of death or life imprisonment, one must pause to consider whether the sentence of fine is at all called for and if so, what is a proper or adequate fine to impose in the circumstances of the case. As observed by this Court in Adamji Umar Dalal vs. State of Bombay, determination of the right measure of punishment is often a point of great difficulty and no hard and fast rule can be laid down, it being a matter of discretion which is to be guided by a variety of considerations but the Court must always bear in mind the necessity of maintaining a proportion between the offence and the penalty proposed for it. Speaking for the Court Mahajan J. observed in that case that: “In imposing a fine it is necessary to have as much regard to the pecuniary circumstances of the accused persons as to the character and magnitude of the offence and where a substantial term of imprisonment is inflicted, an excessive fine should not accompany it except in exceptional cases” (p. 177). Though that case related to an economic offence, this Court reduced the sentence of fine from Rs. 42,300/- to Rs. 4,000/- on the ground that due regard was not paid by the lower Court to the principles governing the imposition of a sentence of fine.” 12. Thereafter in the case of Shantilal vs. State of M.P. (2007) 11 SCC 243 while dealing with the issue under N.D.P.S. Act, Justice C.K. Thakkar, after considering the provisions of sections 63 to 70 of Indian Penal Code, section 30 of Criminal Procedure Code and relying upon various precedents of Hon'ble the Apex Court and High Courts and also referring the commentary of Ratanlal and Dhirajlal observed in Para 39 as under:- “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, Criminal Procedure Code authorises 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, Criminal Procedure Code authorises 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.” 13. The time again Supreme Court in the recent pronouncement of Shahjad Khan (supra) reiterated the same view, relying upon the aforesaid judgment, Justice Sathasivam speaking for the Bench held as under:- “12. It is clear and reiterated that the term of imprisonment in default of payment of fine is not a sentence. To put it clear, it is a penalty which a person incurs on account of non-payment of fine. On the other hand, if sentence is imposed, undoubtedly, an offender must undergo unless it is modified or varied in part or whole in the judicial proceedings. However, the imprisonment ordered in default of payment of fine stands on a different footing. When such default sentence is imposed, a person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. Accordingly, he can always avoid to undergo imprisonment in default of payment of fine by paying such an amount. When such default sentence is imposed, a person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. Accordingly, he can always avoid to undergo imprisonment in default of payment of fine by paying such an amount. In such circumstance, we are of the view that it is the duty of the Court to keep in view the nature of offence, circumstances in which it was committed, the position of the offender and other relevant considerations such as pecuniary circumstances of the accused person as to character and magnitude of the offence before ordering the offender to suffer imprisonment in default of payment of fine. The provisions of sections 63 to 70, Indian Penal Code make it clear that an amount of fine should not be harsh or excessive. We also reiterate that where a substantial term of imprisonment is inflicted, an excessive fine should not be imposed except in exceptional cases. 13. While taking note of the above principles, we are conscious of the fact that the present case is under the NDPS Act and for certain offences, the statute has provided minimum sentence as well as minimum fine amount. In the earlier part of our judgment, taking note of the fact that the appellants being the first time offenders, we imposed the minimum sentence i.e. 10 years instead of 15 years as ordered by the trial Court. In other words, the appellants have been ordered to undergo substantive sentence of RI for 10 years which is minimum. 15. It is clear that clause (b) of sub-section (1) of section 30 of the Code authorises the Court to award imprisonment in default of fine up to one-fourth of the term of imprisonment which the Court is competent to inflict as punishment for the offence. However, considering the circumstances placed before us on behalf of the appellant-accused viz. 15. It is clear that clause (b) of sub-section (1) of section 30 of the Code authorises the Court to award imprisonment in default of fine up to one-fourth of the term of imprisonment which the Court is competent to inflict as punishment for the offence. However, considering the circumstances placed before us on behalf of the appellant-accused viz. they are very poor and have to maintain their family, it was their first offence and if they fail to pay the amount of fine as per the order of the Additional Sessions Judge, they have to remain in jail for a period of 3 years in addition to the period of substantive sentence because of their inability to pay the fine, we are of the view that serious prejudice will be caused not only to them but also to their family members who are innocent. We are, therefore, of the view that ends of justice would be met if we order that in default of payment of fine of Rs. 1.5 lakhs, the appellants shall undergo RI for 6 months instead of 3 years as ordered by the Additional Sessions Judge and confirmed by the High Court.” 14. Learned counsel appearing on behalf of the appellant has placed reliance on a three Judges' Bench judgment in the case of Abbas Khan vs. Central Bureau of Narcotics, 2009 (1) EFR 570 and submits that in the said case, the amount of fine has been waived of by Hon'ble the Apex Court on serving the substantive part of sentence of 10 years. But in the considered opinion of this Court, looking to the language of section 18-b of the Act, it is clear that where the contraband involves commercial quantity then accused may be punished with RI for a term which shall not be less than 10 years but may be extended to 20 years and shall also be liable to fine which shall not be less than Rs. 1,00,000/- and may be extended to Rs. 2,00,000/-. In the said case Hon'ble the Apex Court has not considered the observations made in the case of Shantilal (supra) with respect to amount of fine which is specified as minimum by legislative mandate. 1,00,000/- and may be extended to Rs. 2,00,000/-. In the said case Hon'ble the Apex Court has not considered the observations made in the case of Shantilal (supra) with respect to amount of fine which is specified as minimum by legislative mandate. In any case, the waiving of the fine by the Supreme Court in the case of Abbas Khan (supra) appears to be in exercise of the powers under Article 141 of the Constitution of India, for the reason that while waiving the amount of fine, the Court observed that sentence already undergone by the appellant is sufficient to meet the ends of justice and directed to release the accused forthwith. But, this Court do not confer such powers to waive the legislative mandate however, we are unable to accept the said contention, hence, it is repelled. 15. In view of the aforesaid principles of the law laid down by Hon'ble the Apex Court even in the cases of N.D.P.S. Act the sentence in default of payment of fine is not similar to main sentence. It is a penalty which a person incurs on account of non-payment of fine. If the sentence is imposed against an offender he 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. Thus, imprisonment ordered in default of payment of fine stands on a different footing. When such default sentence is imposed, a person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. Accordingly, he can always avoid to undergo imprisonment in default of payment of fine by paying such amount. Therefore, it is the duty of the Court to keep in view the nature of offence, circumstances under which the offence was committed, the financial status of the offender and other relevant considerations such as pecuniary circumstances before ordering the offender to suffer imprisonment in default of payment of fine. The provisions of the Indian Penal Code makes it clear that the amount of fine should not be harsh or excessive. The Court has also observed that where a substantial term of imprisonment is inflicted, an excessive fine should not be imposed except in exceptional cases. 16. In view of the foregoing, appeal filed by the appellant is hereby allowed in part. The Court has also observed that where a substantial term of imprisonment is inflicted, an excessive fine should not be imposed except in exceptional cases. 16. In view of the foregoing, appeal filed by the appellant is hereby allowed in part. The conviction recorded by the trial Court is hereby confirmed. The sentence imposed upon the appellant to undergo RI of 15 years is reduced to 10 years. The order of payment of fine of Rs. 1,00,000/- and in default, the appellant shall undergo RI of 6 months is hereby upheld. Meaning thereby, the appellant has to serve 10 years' RI and to pay fine of Rs. 1,00,000/- otherwise he has to serve 6 months' RI more. Thereafter, he shall be set at liberty forthwith, if not required in any other case.