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TMI Blog2013 (7) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 1,50,000/- for the offence under Section 20(b)(ii) of N.D.P.S. Act and in default of payment of fine, the appellant will undergo a further rigorous imprisonment for three years. The prosecution case, in brief, is that the Assistant Commissioner, Custom on receiving a secret report directed Sri Sanjai Chatterji, Shailendra Mohan Bhatnagar and Debo Prasad Halder to keep surveillance and intercept Ambassdor Car No. DBC/9581 on 28.07.2001 at Lucknow-Barbanki road. In compliance of the above direction, all the above three Inspectors of Custom alongwith two public witnesses Sri Rajiv Dar and R.K. Srivastava kept surveillance at Lucknow-Barabanki road near Gas & Gadget Godown, Lucknow. On 28.07.2001, at about 11.30 A.M., the Ambassador Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dash-board of the car and 30 polythene packets sealed by tapes were from another cavity in the Diggy of the car. On opening of these packets, black brown coloured bricks were found in each packet. In 49 packets 4 bricks in each packet and in one packet three bricks were found. All recovered material was weighed and it was found to be 98.765 Kg. All the three persons were arrested and Fird was prepared and the statement of accused under Section 108 of Customs Act was recorded, in which, they confessed their crime and involvement in smuggling of Charas. Sample of Charas was taken and sent to Chemical Examiner Central Laboratory, New Delhi and on chemical analysis it was found to be Charas. Sri V.K. Joshi was appointed as Investigating Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Custom Officer till it was sent to chemical examination. Trial Court wrongly placed reliance on the forged evidence manufactured by Customs Officers. In every view of the matter, conviction and sentence awarded are not sustainable in eye of law. There was no justification for different sentence to appellant Afzal. The sentence awarded is too severe. The impugned judgment is liable to be set aside. Heard learned counsel for the appellant and learned counsel for Union of India. Learned counsel for the appellant mainly confined his argument on the point that learned lower court wrongly relying on the confessional statement of the accused Afzal convicted him and learned trial court wrongly placed reliance on the forged evidence manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Car. Accused persons were transporting the Charas. 98.76 Kg of Charas was recovered from them and considering the quantity of Charas the sentence awarded to appellant is appropriate. It is neither harsh nor severe. Appeal has got no force and is liable to be dismissed. Considering the submission of both side and going through the record, it is quite clear that learned trial Judge passed the impugned judgment after taking much pains in deciding each and every arguments of the accused appellant. The learned trial court has analyzed the evidence in right prospective and has reached to the correct conclusion. The judgment is well discussed and he rightly relied on the prosecution witnesses and confessional statement of accused persons. I do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l serve the purpose. As regards sentence of imprisonment in default of fine, Section 30 of Cr.P.C. provides for sentence of imprisonment in default of fine. Section 30 reads as under:- "30. Sentence of imprisonment in default of fine-(1) The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law: Provide that the term- (a) is not in excess of the powers of the Magistrate under Section 29; (b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of fine. (2) The imprisonment awar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. 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 any 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 power, but duty of the court to keep in view the nature of offence, circumstances under which it was committe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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