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TMI Blog2016 (3) TMI 1488X X X X Extracts X X X X X X X X Extracts X X X X ..... cular offence as imprisonment which shall not be less than six months and the convict shall also be liable to fine of five thousand rupees. The proviso however empowers the court that it may, "for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a lesser term;". The question to be answered is whether the court has been given judicial discretion only to reduce the sentence of imprisonment for any term lesser than six months or whether it also has discretion to levy no fine or a fine of less than five thousand rupees. 2. The facts of the case lie in a very narrow compass. The case arises out of criminal proceedings initiated by the Appellant - Employees State Insurance Corporation - Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an offence under Clause (a), with imprisonment for a term which may extend to three years but- (a) which shall not be less than one year, in case of failure to pay the employee's contribution which has been deducted by him from the employee's wages and shall also be liable to fine of ten thousand rupees; (b) which shall not be less than six months, in any other case and shall also be liable to fine of five thousand rupees: Provided that the court may, for any adequate and special reason to be recorded in the judgment, impose a sentence of imprisonment for a lesser term; (ii) ... 4. Learned Counsel for the Appellant has relied upon judgment of this Court in the case of Zunjarrao Bhikaji Nagarkar v. Union of India (1999) 7 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1981) 1 SCC 645 : 1981 SCC (Cri) 244 this Court has taken the view that imprisonment and fine both are imperative when the expression "shall also be liable to fine" was used Under Section 34 of the Drugs and Cosmetics Act, 1940. In that case, this Court was considering Section 27 of the Drugs and Cosmetics Act, 1940, which enumerates the penalties for illegal manufacture, sale, etc., of drugs and is as under: 27. Whoever himself or by any other person on his behalf manufactures for sale, sells, stocks or exhibits for sale or distributes- (a) any drug- (i) *** (ii) without a valid licence as required under Clause (c) of Section 18, shall be punishable with imprisonment for a term which shall not be less than one year but which ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpreted as an equivalent of the word "may". The submission is that if "shall" is read as "may" then the clause "and shall also be liable to fine of five thousand rupees" will evidently be directory in nature and shall vest judicial discretion in the court to levy or not to levy fine which at the maximum can be Rupees five thousand. In support of this stand reliance has been placed upon two judgments of this Court arising out of convictions Under Section 302 of the Indian Penal Code. In the case of Palaniappa Gounder (supra) the Court was called upon to decide the propriety of a particular quantum of fine in the context of Section 357(1)(c) of the Code of Criminal Procedure providing for compensation to the victim of a crime. In the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Employees' State Insurance Act, 1948 is clearly to create deterrence against violation of provisions of the Act which are beneficial for the employees. Non-payment of contributions is an economic offence and therefore the Legislature has not only fixed a minimum term of imprisonment but also a fixed amount of fine of five thousand rupees Under Section 85(a)(i)(b) of the Act. There is no discretion of awarding less than the specified fee, under the main provision. It is only the proviso which is in the nature of an exception whereunder the court is vested with discretion limited to imposition of imprisonment for a lesser term. Conspicuously, no words are found in the proviso for imposing a lesser fine than that of five thousand r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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