2012 (10) TMI 518 - SC - Indian Laws

First time offenders - Charged for possession of brown sugar falling under the head commercial quantity - Narcotic Drugs and Psychotropic Substances Act 1985 - Rigorous Imprisonment & Fine - prosecution - Held that - As 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 also not disputed by the State that as on date the appellants had served nearly 12 years in jail. Thus as decided in BALWINDER SINGH Versus ASSTT. COMMISSIONER CUSTOMS & CENTRAL EXCISE 2005 (2) TMI 127 - SUPREME COURT OF INDIA) while confirming the conviction the sentence is reduced to 10 years from 15 which is the minimum prescribed sentence under the relevant provisions of the NDPS Act. The order of payment of fine of Rs. 1.5 lakhs each is also upheld Term of imprisonment in default of payment of fine - Held that - It is clear that clause (b) of sub-section (1) of Section 30 of the Code authorizes the Court to award imprisonment in default of fine up to 1/4th of the term of imprisonment which the Court is competent to inflict as punishment for the offence. However considering the circumstances placed on behalf of the appellants-accused that 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 causing serious prejudice will be caused not only to them but also to their family members who are innocent. Therefore if default of payment of fine of Rs. 1.5 lakhs persists the appellants shall undergo RI for 6 months instead of 3 years.

Summary

Issues Involved:
1. Delay in filing the appeal.
2. Conviction under the NDPS Act.
3. Sentence reduction request.
4. Default sentence for non-payment of fine.

Detailed Analysis:

1. Delay in Filing the Appeal:
The Supreme Court condoned the delay in filing the appeal and granted leave to proceed with the case.

2. Conviction under the NDPS Act:
The appeals were directed against the judgment of the High Court of Gujarat, which had affirmed the conviction and sentence imposed by the Additional Sessions Judge, Ahmedabad City. The appellants were arrested with 500 grams of brown sugar, classified as a "commercial quantity" under the NDPS Act. They were found guilty under Sections 8(c), 21, and 29 of the NDPS Act and sentenced to rigorous imprisonment (RI) for 15 years, along with a fine of Rs. 1.5 lakhs each, with an additional 3 years' RI in default of payment.

3. Sentence Reduction Request:
The appellants' counsel did not contest the conviction but sought a reduction in the sentence, citing the appellants' age, poverty, and the fact that they were first-time offenders. The Supreme Court confirmed the conviction but considered the appellants' circumstances and the precedent set in Balwinder Singh vs. Asstt. Commr., Customs & Central Excise, reducing the sentence from 15 years to 10 years, the minimum prescribed under the NDPS Act.

4. Default Sentence for Non-Payment of Fine:
The trial judge had imposed a default sentence of 3 years' RI for non-payment of the fine. The appellants argued that this was excessively harsh. The Supreme Court referred to the principles laid out in Shantilal vs. State of M.P. and other relevant cases, emphasizing that the term of imprisonment in default of payment of fine is not a sentence but a penalty. The Court must consider the offender's pecuniary circumstances and the nature of the offence. Given the appellants' poverty and the substantial term of imprisonment already imposed, the Supreme Court reduced the default sentence from 3 years to 6 months.

Conclusion:
The Supreme Court partly allowed the appeals, confirming the conviction but modifying the sentence from 15 years to 10 years of RI. The fine of Rs. 1.5 lakhs each was upheld, but the default sentence was reduced to 6 months of RI. Since the appellants had already served nearly 12 years in jail, they were ordered to be released forthwith unless required in any other case. If they had not completed the modified period of sentence, they would be released after serving the indicated period.