2018 (1) TMI 121 - HC - Indian Laws

Offence u/s 8/22 of N.D.P.S. Act - recovery of Contraband item - Heroin - Held that - Accused can avoid to undergo further imprisonment in default of payment by making payment of such fine, therefore, it is the duty of court to keep in view the nature of offence, circumstances under which it was committed, the position of the offender, the other relevant considerations before ordering the offender to suffer imprisonment. It is argued that the accused is very poor, whose family is unable to maintain itself, accused had not committed any offence earlier, in such circumstances such an accused may be given relief by directing him to undergo smaller punishment in default of payment of fine so that only because of his inability to pay fine, serious prejudice may not be caused to his family members who are innocent. This Court is of the view that the accused may be granted relief in terms of the reduction in default sentence.

Summary

Issues: Criminal Appeal against conviction and punishment under NDPS Act, Challenge on quantum of punishment, Reduction of default sentence in case of inability to pay fine

In this judgment by the Allahabad High Court, the Criminal Appeal was filed against the conviction and punishment under the NDPS Act. The accused was found guilty of charges under sections 8/22 of the NDPS Act by the lower court and was sentenced to 10 years of rigorous imprisonment, a fine of ?1,00,000, and an additional one year of simple imprisonment in default of fine payment. The defense counsel argued for a reduction in the default sentence due to the extreme poverty of the accused. The court considered the submissions and relevant legal precedents in this regard.

The prosecution's case revolved around an incident where the police, acting on a tip-off, apprehended the accused who was found in possession of heroin. The accused was arrested at a bus stand with a bag containing one kg of heroin worth ?1 crore. The police conducted a search with the accused's consent and recovered the contraband. The accused denied the charges during the trial, claiming false implication.

After examining the prosecution witnesses and recording the accused's statement under section 313 of the Cr.P.C, the lower court found the accused guilty and imposed the aforementioned sentence. The defense counsel, during the appeal, focused on the quantum of punishment, especially the financial burden of the fine on the accused, who was described as old and from a poor background.

The defense counsel cited the case of Shantilal Vs. State of M.P., emphasizing the distinction between substantive sentence and default imprisonment due to non-payment of fine. The Supreme Court's ruling in the cited case highlighted the importance of considering the offender's circumstances, nature of the offense, and ability to pay the fine before ordering default imprisonment. The defense argued for a reduction in the default sentence, given the accused's poverty and lack of criminal history.

Considering the arguments presented, the High Court acknowledged the accused's poverty and lack of criminal record. The Court, therefore, modified the lower court's order, reducing the default sentence from one year to one month in case of non-payment of the fine. The judgment upheld the conviction but allowed the appeal in part, granting relief to the accused based on his circumstances. The Court directed immediate compliance with the modified sentence and ordered the destruction of the case property after the appeal period or as per legal requirements.