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2019 DIGILAW 182 (RAJ)

Raja @ Rajendra v. State of Rajasthan

2019-01-15

MANOJ KUMAR GARG

body2019
JUDGMENT 1. The instant criminal Jail Appeal has been filed by the appellant-Raja @ Rajendra against the judgment dated 21.04.2009 passed by learned Special Judge, NDPS Act Cases, Hanumangarh in Sessions Case No. 33/2007, by which the trial court convicted the present appellant for the offence under Section 8/18(b) of Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to 12 years of rigorous imprisonment and a fine of Rs. 1,20,000/-; in default of payment of fine to further undergo 3 years rigorous imprisonment. 2. Shri Ripudaman Singh, learned Amicus Curiae at the threshold argued that he does not challenge the order of the conviction, however, he submitted that the appellant is behind the bars since 03.04.2007 and he has already served the total sentence of 11 years 9 months out of the total sentence of 12 years. So he prayed that a lenient view should be taken and the sentence awarded to the appellant should be reduced to that of already undergone by him. Learned counsel further submitted that the fine imposed by the trial court, which is to the tune of Rs. 1,20,000/-, is excessive; and towards the default of payment of the fine also, a very harsh punishment of 3 years R.I. has been imposed upon the appellant. While placing reliance on the judgment of Honble Supreme Court in the case of Shahfjad Khan Maebub Khan Pathan v. State of Gujarat, reported in (2013) 1 SCC 570 , it was prayed that the quantum of sentence in lieu of default in payment of fine may also be reduced appropriately. No other ground was argued by the learned counsel for the appellant. 3. Learned Public Prosecutor opposed the prayer made by the learned counsel for the appellant and submitted that there is neither any occasion to interfere with the sentence awarded to the accused appellant nor any compassion or sympathy is called for in the said case. 4. I have heard the rival contentions of the parties and have carefully gone through the record. 5. In view of the limited prayer made on behalf of the appellant, this Court need not go into the merits of the case and the conviction recorded by the learned trial court is hereby upheld. 6. 4. I have heard the rival contentions of the parties and have carefully gone through the record. 5. In view of the limited prayer made on behalf of the appellant, this Court need not go into the merits of the case and the conviction recorded by the learned trial court is hereby upheld. 6. As far as the sentence is concerned, the learned trial court has awarded a total punishment of 12 years RI and in default of payment of fine to undergo 3 years RI. 7. In the case of Shahfijad Khan Mahebub Khan Pathan (supra), Honble Supreme Court held as under: "(8) Coming to the question of sentence, it is not in dispute that the appellants were charged for possession of brown sugar in the quantity of 500 grams which falls under the head "commercial quantity". As per the notification of the Government being No. SO.1055(E) dated 19.10.2001, it is necessary to consider the same in terms of Section 21(c) of the NDPS Act. The trial Judge, taking note of the fact that the appellants were carrying such commercial quantity of brown sugar to the State of Gujarat from the State of Madhya Pradesh, awarded RI for 15 years and also directed them to pay a fine of Rs. 1.5 lakhs each, in default, to further undergo RI for 3 years. For offences punishable under Sections 8(c), 21 and 29 of the NDPS Act, undoubtedly, the minimum sentence prescribed is 10 years which may extend to 20 years with fine. In this regard, it is useful to refer a decision of this Court in Balwinder Singh v. Asstt. Commr., Customs & Central Excise, (2005) 4 SCC 146. The appellant therein was convicted for offences punishable under Sections 18, 22, 23, 25, 28, 29 and 30 of the NDPS Act and Section 120-B of the Indian Penal Code, 1860 (in short the IPC). This Court, having regard to the facts and circumstances and taking note of the fact that the appellant therein was convicted for the said offences for the first time (emphasis supplied), while confirming the conviction, reduced the sentence from 14 years to 10 years for the offences under the NDPS Act and the IPC. (9) It is projected before us that both the appellants are first time offenders and there is no past antecedent about their involvement in offence of like nature on earlier occasions. (9) It is projected before us that both the appellants are first time offenders and there is no past antecedent about their involvement in offence of like nature on earlier occasions. It is further brought to our notice, which is also not disputed by the learned counsel for the State that as on date, the appellants had served nearly 12 years in jail. In view of the same and in the light of the decision of this Court, in Balwinder Singh (supra), while confirming the conviction, we reduce the sentence to 10 years which is the minimum prescribed sentence under the relevant provisions of the NDPS Act." 8. Honble Supreme Court while confirming the conviction of appellant therein reduced the sentence of 15 years to 10 years. Applying the law laid down by Honble Supreme Court in the case of Shahfjad Khan Mahebub Khan Pathan (supra) in the facts of this case, as the appellant is a first time offender, the sentence of 12 year as imposed by the learned trial court upon the appellant is hereby reduced to 11 years because in the instant case, the recovery effected from the possession of the appellant was 2 kg. 900 gms. of opium, which is just above the commercial quantity. 9. Now, coming to the next argument of the appellant regarding the default sentence in lieu of fine, it is evident that the learned trial court has imposed a fine of Rs. 1,20,000/-, which is excessive of the minimum prescribed fine and in default of which, the learned trial court has imposed 3 year R.I. The general principle regarding imposing of fine has been specified from Section 63 to 70 of the IPC 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 at the magnitude and its character. 10. Honble Supreme Court in the case of Shahfijad Khan Mahebub Khan Pathan (supra), has laid down the following law on the point of default of sentences:- "Default Sentence: (10) Coming to the next claim of the appellants, i.e., default sentence, the trial Judge, taking note of various aspects including the fact that the appellants were carrying commercial quantity of brown sugar from the State of Madhya Pradesh to the State of Gujarat for doing business, imposed a fine of Rs. 1.5 lakh each, in default, ordered to undergo RI for 3 years. (11) According to the learned counsel for the appellants, the default sentence, i.e., 3 years, is very harsh and the Additional Sessions Judge ought not to have imposed such sentence for non-payment of fine amount. In view of the same, he relied on a decision of this Court in Shantilal v. State of M.P. (2007) 11 SCC 243 wherein this Court considered the imprisonment in default of payment of fine with reference to various provisions of IPC andthe Code of Criminal Procedure, 1973 (in short the Code) and held as under: "31. 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. 32. A general principle of law reflected in Sections 63 to 70 IPC is that an amount of fine should not be harsh or excessive. The makers of IPC were conscious of this problem. The authors of the Code, therefore, observed: 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 as much regard to the pecuniary circumstances of the offender as to the character and magnitude of the offence." 11. With fine, the case is different. In imposing a fine, it is always necessary to have as much regard to the pecuniary circumstances of the offender as to the character and magnitude of the offence." 11. In para 12 of the said judgment, Honble Supreme Court observed 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. 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 of IPC 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." 12. In the case of Shantilal v. State of M.P. reported in (2007) 11 SCC 243 while dealing with the issue under N.D.P.S. Act, Honble Supreme Court after considering the provisions of Sections 63 to 70 of IPC, section 30 of Cr.P.C. and relying upon various precedents of Honble the Apex Court 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 CrPC 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. In view of the aforesaid principles of the law laid down by Honble the Apex Court, it emerges that even in the cases of N.D.P.S. Act, the sentence awarded in default of payment of fine is not akin to the main sentence. It is a penalty which a person incurs on account of non payment of fine. In view of the aforesaid principles of the law laid down by Honble the Apex Court, it emerges that even in the cases of N.D.P.S. Act, the sentence awarded in default of payment of fine is not akin to the 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 it; 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, 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. Therefore, it is the duty of the court to keep in view the nature of the offence, the 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. Honble Apex court has also observed that where a substantial term of imprisonment has been inflicted, an excessive fine should not be imposed except in exceptional cases. 14. In the light of aforesaid discussion, the present jail appeal is partly allowed. The conviction recorded by the learned trial court for offence under Section 8/18(b) of NDPS Act is hereby confirmed. The sentence imposed upon the present appellant to undergo 12 years rigorous imprisonment is hereby reduced to 11 years. The order of payment of fine in the sum of Rs. 1,20,000/- is hereby maintained, however, in the facts and circumstances of the case, the sentence awarded in default of payment of fine i.e. 3 years R.I. is hereby reduced to 6 months R.I. Since the appellant has completed the total period of 11 years and 9 months thus so he has already served the default sentence also. Hence, in these circumstances, the appellant shall be set at liberty forthwith if he is not required in any other case.