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TMI Blog2021 (11) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... mgopal and Mohan lal. Upon search in the presence of independent motbirs, six bags were recovered containing total 18 kg 400 gm opium for which the accused had no license or permit. The police seized the contraband and arrested the accused persons. The police registered the FIR for offence under Section 8/18 NDPS Act and started investigation. After investigation, the police filed challan against the present appellants. The charges of the case were framed against the appellants. They denied the charges and claimed trial. During the course of trial, the prosecution examined thirteen witnesses and various documents were also exhibited. Thereafter, statement of appellant under section 313 Cr.P.C was recorded. One witness Jitendra Singh was examined as DW/1 on the defence side. Upon conclusion of the trial, the learned trial court vide impugned judgment dated 05.06.2015 convicted and sentenced the appellants for offence under Section 8/18 NDPS Act as mentioned earlier. At the threshold, learned counsel for the appellants argued that he does not challenge the order of the conviction, however, he submitted that the appellants are behind the bars and have already served the total sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NDPS Act, undoubtedly, the minimum sentence prescribed is 10 years which may extend to 20 years with fine. In this regard, it is useful to refer a decision of this Court in Balwinder Singh vs. Asstt. Commr., Customs & Central Excise, (2005) 4 SCC 146. The appellant therein 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 Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, the trial Judge, taking note of various aspects including the fact that the appellants were carrying commercial quantity of brown sugar from the State of Madhya Pradesh to the State of Gujarat for doing business, imposed a fine of Rs. 1.5 lakh each, in default, ordered to undergo RI for 3 years. 11) According to the learned counsel for the appellants, the default sentence, i.e., 3 years, is very harsh and the Additional Sessions Judge ought not to have imposed such sentence for non-payment of fine amount. In view of the same, he relied on a decision of this Court in Shantilal Vs. State of M.P. (2007) 11 SCC 243 wherein this Court considered the imprisonment in default of payment of fine with reference to various provisions of IPC and the Code of Criminal Procedure, 1973 (in short 'the Code') and held as under: "31. The term of imprisonment in default of payment of fine is not a sentence. 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 in other appropriate judicial proceedings or "otherwise". A term of imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the accused person as to character and magnitude of the offence before ordering the offender to suffer imprisonment in default of payment of fine. The provisions of Sections 63 to 70 of IPC make it clear that an amount of fine should not be harsh or excessive. We also reiterate that where a substantial term of imprisonment is inflicted, an excessive fine should not be imposed except in exceptional cases." In the case of Shantilal vs. State of M.P. reported in (2007) 11 SCC 243 while dealing with the issue under N.D.P.S. Act, Hon'ble Supreme Court after considering the provisions of Sections 63 to 70 of IPC, section 30 of Cr.P.C. and relying upon various precedents of Hon'ble the Apex Court and also referring the commentary of Ratanlal and Dhirajlal observed in para 39 as under :- "We 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 im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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