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TMI Blog2012 (10) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... in) carrying 500 grams brown sugar (narcotic substance) at Kalupur Railway Station, Ahmedabad while they were traveling in Sarvodaya Express from Delhi to Ahmedabad through Ratlam. (b) After following the procedure regarding search and seizure and after registering the case under the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the NDPS Act'), the samples were sent to the Forensic Science Laboratory (FSL) for examination. (c) On 19.12.2000, after filing of the charge sheet, the case was committed to the Court of Session and numbered as Sessions Case No. 381 of 2000. (d) The Additional Sessions Judge, Ahmedabad City, after considering the notification of the Government being No. SO.1055 (E) dated 19.10.2001 and the provisions of the NDPS Act held that the quantity of the narcotic substance (brown sugar) falls under the head "Commercial Quantity" and found the appellants guilty for the offence punishable under Sections 8(c), 21 and 29 of the NDPS Act and sentenced them to suffer rigorous imprisonment (RI) for 15 years. The Additional Sessions Judge, after taking note of the fact that the appellants belong to the State of Madhya Pradesh and were carrying such com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein 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. 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. Default Sentence: 10) Coming to the next claim of the appellants, i.e., default sentence, the trial J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary to have as much regard to the pecuniary circumstances of the offender as to the character and magnitude of the offence.... The authors further stated: (Ratanlal & Dhirajlal at pp. 226-27) .....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...... .....On the other hand, to sentence an offender to fine and to a certain fixed term of imprisonment in d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 36. We may as well refer to a decision of this Court in Palaniappa Gounder v. State of T.N. (1977) 2 SCC 634. In that case, P was convicted by the Principal Sessions Judge, Salem and was sentenced to death. The High Court of Madras upheld the conviction but reduced the sentence from death to imprisonment for life. But while reducing the sentence, the Court imposed a fine of Rs 20,000 on P. Leave was granted by this Court limited to the question of the propriety of fine. 37. The Court considered the provisions of IPC as also CrPC and observed that courts have power to impose a sentence of fine and if fine is imposed on an offender, it cannot be challenged as contrary to law. 38. Speaking for the Court, Chandrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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.' Though that case related to an economic offence, this Court reduced the sentence of fine from Rs 42,300 to Rs 4000 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) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re us on behalf of the appellants-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. 15) For the reasons stated above, both the appeals are partly allowed. The conviction recorded is confirmed and sentence imposed upon the appellants to undergo RI for 15 years is modified to 10 years. The order of payment of fine of Rs.1.5 lakhs each is also upheld but the order that in default of payment of fine, the appellants shall undergo RI for 3 years is reduced to RI for 6 months. Since the appellants have already served n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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