2021 (11) TMI 591 - HC - Indian Laws

Smuggling - Opium - quantum of sentence in lieu of default in payment of fine may also be reduced appropriately - occasion to interfere with the sentence awarded to the accused appellants or not - HELD THAT - This Court need not go into the merits of the case and the conviction recorded by the learned trial court is hereby upheld. As far as the sentence is concerned, the learned trial court has awarded a total punishment of 15 years RI to each appellant and in default of payment of fine to undergo two years RI. Hon ble Supreme Court while confirming the conviction of appellant therein reduced the sentence of 15 years to 10 years. Applying the law laid down by Hon ble Supreme Court in the case of SHAHEJADKHAN MAHEBUBKHAN PATHAN VERSUS STATE OF GUJARAT 2012 (10) TMI 518 - SUPREME COURT in the facts of this case, as the appellant is a first time offender, the sentence of 15 year as imposed by the learned trial court upon the appellant is hereby reduced to 10 years. Default sentence in lieu of fine - HELD THAT - It is evident that the learned trial court has imposed a fine of ₹ 1,50,000/- and in default of which, the learned trial court has imposed two years R.I. - 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. The conviction recorded by the learned trial court for offence under Section 8/18 of NDPS Act is hereby confirmed. The sentence imposed upon the present appellants to undergo 15 years rigorous imprisonment is hereby reduced to 10 years R.I. The order of payment of fine in the sum of ₹ 1,50,000/- is hereby maintained, however, in the facts and circumstances of the case, the sentence awarded in default of payment of fine i.e. two years R.I. is hereby reduced to one year R.I. Since the appellants have already served 11 years 04 months R.I, they may be released forthwith, if not required in any other case. Appeal disposed off.

Summary

Issues Involved:
1. Conviction under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
2. Sentencing and quantum of punishment.
3. Default sentence in lieu of non-payment of fine.

Issue-Wise Detailed Analysis:

1. Conviction under Section 8/18 of the NDPS Act:
The appellants were convicted by the trial court for the offence under Section 8/18 of the NDPS Act for possessing 18 kg 400 gm of opium without a license or permit. The police, acting on a secret tip-off, intercepted a black Santro car and found the contraband. The trial court, after examining thirteen prosecution witnesses and one defense witness, found the appellants guilty and sentenced them accordingly.

2. Sentencing and Quantum of Punishment:
The trial court sentenced the appellants to 15 years of rigorous imprisonment (RI) and imposed a fine of ?1,50,000 each, with an additional two years of RI in default of payment of the fine. The appellants did not challenge their conviction but sought a reduction in their sentence, arguing that they had already served 11 years and 4 months of their sentence. The appellants' counsel cited the Supreme Court judgments in Shahfjad Khan Maebub Khan Pathan vs. State of Gujarat and Balwinder Singh & Ors vs. Asstt. Commissioner, Custom and Central Excise to support the plea for a reduced sentence.

The High Court upheld the conviction but reduced the sentence from 15 years to 10 years, considering the appellants to be first-time offenders. The court referenced the Supreme Court's decision in Shahfjad Khan Maebub Khan Pathan, which reduced the sentence of appellants in a similar case from 15 years to 10 years, and Balwinder Singh, where the sentence was reduced from 14 years to 10 years.

3. Default Sentence in Lieu of Non-Payment of Fine:
The appellants also argued that the additional two years of RI in default of fine payment was harsh. The court referred to the Supreme Court's guidelines in Shahfjad Khan Maebub Khan Pathan and Shantilal vs. State of M.P., which emphasize that default sentences should consider the nature of the offence, the offender's circumstances, and the pecuniary situation. The court noted that default sentences are penalties for non-payment of fines and should not be excessively harsh.

The High Court reduced the default sentence from two years to one year, maintaining the ?1,50,000 fine. The court highlighted that the appellants could avoid the default sentence by paying the fine and considered their financial status and the nature of the offence.

Conclusion:
The High Court partially allowed the appeal, confirming the conviction under Section 8/18 of the NDPS Act but reducing the sentence from 15 years to 10 years of RI and the default sentence from two years to one year of RI. The appellants, having already served 11 years and 4 months, were ordered to be released forthwith, provided they were not required in any other case. The trial court's record was ordered to be sent back immediately.