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TMI Blog2018 (1) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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. - Criminal Appeal No. 5111 of 2009 - - - Dated:- 7-11-2017 - Hon'ble Dinesh Kumar Singh-I, J. For the Appellant : V.P. Gupta,Amit Kumar Srivastava,K.S. Chahar,Mithilesh Kumar Tiwari For the Respondent : Govt. Advocate ORDER 1. Heard Sri Sharda Prasad, Advocate holding brief of Sri Deepak Kumar Gupta and the learned A.G.A. appearing for the State. 2. This Criminal Appeal has been preferred against the judgement and order dated 21.7.2009 passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout the said person being in possession of contraband substance, he was apprised about his right to be searched in presence of a Gazetted Officer/Magistrate, but he expressed his confidence in the police party itself and gave consent to be searched by them. Accordingly, a consent letter was also prepared in this regard. Pursuant to the said consent, his search was made and in the bag being carried in right hand contraband substance (Heroin) weighing one kg worth Rs.one crore was recovered, out of which, 50 grams was taken out by way of sample and was kept in a separate polythene. Both the sample as well as the remaining quantity of contraband were separately sealed and the sample of seals were also prepared. Recovery memo was prepared by S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded him the aforesaid punishment. 9. Learned counsel for the appellant has confined his argument only to the point of quantum of punishment and has stated that the accused is extremely old and comes from very poor back ground who cannot make the payment of ₹ 1,00,000/- fine imposed by the court below and in default of which he has been awarded one year additional imprisonment. He sought indulgence of Court that the punishment awarded for the default of payment of fine should be reduced to an extent so that he may get early release from jail as already for approximately 10 years he has remained in jail. He submits that in this case substantive punishment of 10 years R.I. and fine of ₹ 1,00,000/- has been awarded. He has prayed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 authorizes the Court to award imprisonment in default of payment of fine upto one-fourth term of imprisonment whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 12. In the case at hand the learned counsel for the appellant has laid emphasis on extreme poverty of the accused. He has also brought to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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