Research › Search › Judgment

Madhya Pradesh High Court · body

2018 DIGILAW 967 (MP)

Kailash v. State of M. P.

2018-11-19

PRAKASH SHRIVASTAVA, VIVEK RUSIA

body2018
JUDGMENT 1. By this appeal under section 374 of the CrPC, appellant has challenged the judgment dated 7.9.2009 passed in Sessions Special Trial No. 7/2005 by the Special Judge (NDPS) Act, Indore convicting the appellant for offence under section 8 read with section 22(C) of the NDPS Act and sentencing him to 14 years RI with fine of Rupees One Lakh Fifty Thousand and default imprisonment of three years in case of non-payment of fine. 2. The prosecution story is that an intimation was received on 11.12.2004 that one person in grey scooter No. MP.09.Y.2940 was standing near Lal gate with the contraband in a bag for sale, on which the rojnamcha sanha entry was made and the panch witnesses were called and the appellant was intercepted on the spot. After his consent search of his person was made and no contraband item was found, but on the search of his scooter, a bag near the foot rest with 20 kg of Methaqualone psychotropic substance was found. Two samples of 50 gm each were taken and after sealing it, they were sent to the FSL and in the forensic examination the chemical was found to be Methaqualone. After completing the investigation, challan was filed. 3. Appellant had abjured the guilt, hence the trial took place and the appellant has been convicted and sentenced in the matter indicated above. 4. Having heard the learned counsel for appellant and on perusal of the record, it is noticed that the trial Court has duly examined the oral as well as the documentary evidence while reaching to the conclusion that the 20 kg of Methaqualone was seÁed from the conscious possession of the appellant. The statement of senior scientist Dr. N.S.Parmar (PW17) and his report Ex.P-1 have been considered while reaching to the conclusion that the material seÁed from the appellant was Methaqualone. The seÁed quantity has been found to be more than the commercial quantity. The trial Court has also found that the provisions of the NDPS Act were duly complied with in the matter. In the aforesaid background the trial Court has convicted the appellant for offence under section 8/22(c) of the NDPS Act. 5. The appellant has not challenged the conviction under the Act but has raised a limited plea that the default sentence awarded to the appellant is on the much higher side and the same be reduced. 6. In the aforesaid background the trial Court has convicted the appellant for offence under section 8/22(c) of the NDPS Act. 5. The appellant has not challenged the conviction under the Act but has raised a limited plea that the default sentence awarded to the appellant is on the much higher side and the same be reduced. 6. The prayer has been opposed by the learned counsel for State. 7. The Supreme Court in the matter of Shahejadkhan Mahebubkhan Pathan v. State of Gujrat (2013) 1 SCC 570 in a case where the sentence of 15 years RI with fine of Rs.1.5 Lakh was awarded while convicting the accused under section 8(c), 21 and 29 of the NDPS Act, by taking not of the fact that the accused/appellants was first time offenders, having no past antecedents of involvement in offence of like nature, has held that the sentence deserves to be reduced to minimum prescribed period of 10 years RI. The Hon’ble Supreme Court, further finding the appellants to be first time offenders, very poor and and maintaining their family has held that the default sentence of 3 years RI would cause serious prejudice to the appellants as well as their family members, hence, reduced it to 6 months RI. While holding so, the Supreme Court has held that the default sentence is not in a nature of sentence but only a penalty, therefore, it should not be harsh or excessive save in exceptional cases, where substantial terms of imprisonment is imposed. It has further been held that the Courts are required to take into consideration relevant circumstances regarding offence and offender and imposition of a long default sentence on penurious offenders may be harsh and excessive. 8. In the matter of Shanti Lal v. State of M.P. [ 2008 (1) JLJ 362 (SC)=2008 (1) MPHT 1], Hon’ble Supreme Court has considered the legal position and has held that; even in the absence of specific provision in NDPS Act empowering a Court to order imprisonment in default of payment of fine, such power is implicit and is possessed by a Court adminstering criminal justice but in that case, considering the circumstances of that case, the default sentence of 3 years was reduced to 6 months. In the matter of Shanti Lal (supra), it has further been held that the term of imprisonment in default of payment of fine is not a sentence, therefore, it stands on a different footing and that since the convict can always avoid undergoing imprisonment on payment of fine, therefore, the Court has the duty to keep in view the nature of offence, circumstances under which it was committed and the position of the offender as also the other relevant consideration before ordering the offender to suffer imprisonment in default of payment of fine. 9. Similarly, this Court also in Criminal Appeal No. 1046/2011 in the case of Manish Maan v. Union of India vide order dated 21.10.2013 following the judgment of the Supreme Court in the case of Shanti Lal (supra), partly allowed the appeal, reducing the sentence as also the default sentence. 10. Considering the present case in the aforesaid back ground, it is noticed that the appellant is a handicapped person who is presently aged about 70 years and is only the bread earner of the family. The offence was committed almost 14 years back and nothing has been pointed out to show that the appellant has any criminal antecedence. 11. Having regard to these circumstances and considering the judgment which are noted above, though the substantive sentence of 14 years awarded to the appellant is maintained, but the default sentence of three years is reduced to six months which the appellant will undergo in addition to the substantive sentence in case if he fails to deposit the fine amount. 12. The appeal is partly allowed to the extent indicated above.