TMI Blog2012 (10) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 1.5 lakhs persists, the appellants shall undergo RI for 6 months instead of 3 years. - CRIMINAL APPEAL NO. 1592 & 1593 OF 2012 - S.L.P. (Crl.) No. 276 & 277 of 2011 - - - Dated:- 5-10-2012 - P. SATHASIVAM AND RANJAN GOGOI, JJ. For Appellant(s) Dr. Sushil Balwada, Adv. For Respondent(s) Ms.Hemantika Wahi, Adv., Ms. Jesal, Adv. JUDGMENT P.Sathasivam,J. 1) Delay condoned. 2) Leave granted. 3) These appeals are directed against the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel for the respondent-State. 6) Learned counsel appearing for both the appellants before the High Court as well as before this Court, considering the materials placed by the prosecution, has not seriously canvassed the conviction, however, taking note of various aspects including the age and poorness, prayed for reduction of sentence. In addition to the same, learned counsel also prayed for modification of default sentence awarded by the Additional Sessions Judge, Ahmedabad City and confirmed by the High Court. 7) In view of the limited relief prayed for and considering the relevant and acceptable materials placed by the prosecution in support of their case, there is no need to traverse the finding relating to conviction, accordingly, we hereby confirm the same. Sentence: 8) Coming to the question of sentence, it is not in dispute that the appellants were charged for possession of brown sugar in the quantity of 500 grams which falls under the head "commercial quantity". As per the notification of the Government being No. SO.1055(E) dated 19.10.2001, it is necessary to consider the same in terms of Section 21(c) of the NDPS Act. The trial Judge, taking note of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 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 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 the power, but the duty of the court to keep in view the nature of offence, circumstances under which it was committed, the position of the offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment of fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment will not exceed one-fourth of the longest term of imprisonment fixed by the Code for the offence. If the offence be one which by the Code is punishable only with fine, the term of imprisonment for default of payment will in no case exceed seven days." 33. The issue also came up for consideration in some cases. In Emperor v. Mendi Ali, AIR 1941 All 310 M was charged with an offence of murder of his wife. The Sessions Court, however, convicted him for an offence punishable under Section 304 Part I IPC since M had committed the offence of killing his wife in grave and sudden provocation as he saw her (his wife) "with his own eyes committing adultery with N". M was thus altogether deprived of the power of self-control. But the Sessions Judge not only imposed the maximum imprisonment of ten years under Section 304 Part I but he also imposed a fine of Rs 100 or to undergo rigorous imprisonment for one year. 34. In a suo motu revision, the High Court observed that the Sessions Judge had awarded maximum term of sentence on M for the offence for which he was found guilty "and added to it a fine (which there could surely have been little prospect of his paying). The result w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting economic laws can be assumed legitimately to possess the means to pay that fine. He must disgorge his ill-gotten wealth. But quite different considerations would, in the generality of cases, apply to matters of the present kind. Though there is power to combine a sentence of death with a sentence of fine that power is sparingly exercised because the sentence of death is an extreme penalty to impose and adding to that grave penalty a sentence of fine is hardly calculated to serve any social purpose. In fact, the common trend of sentencing is that even a sentence of life imprisonment is seldom combined with a heavy sentence of fine. We cannot, of course, go so far as to express approval of the unqualified view taken in some of the cases that a sentence of fine for an offence of murder is wholly 'inapposite' (see, for example, State v. Pandurang Tatyasaheb Shinde, AIR 1956 Bom. 711 at p. 714), but before imposing the sentence of fine, particularly a heavy fine, along with the sentence of death or life imprisonment, one must pause to consider whether the sentence of fine is at all called for and if so, what is a proper or adequate fine to impose in the circumstances of the case. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcessive fine should not be imposed except in exceptional cases. 13) While taking note of the above principles, we are conscious of the fact that the present case is under the NDPS Act and for certain offences, the Statute has provided minimum sentence as well as minimum fine amount. In the earlier part of our judgment, taking note of the fact that the appellants being the first time offenders, we imposed the minimum sentence, i.e., 10 years instead of 15 years as ordered by the trial Court. In other words, the appellants have been ordered to undergo substantive sentence of RI for 10 years which is minimum. 14) In view of the above, it is relevant to mention Section 30 of the Code which speaks about sentence of imprisonment in default of fine: "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 authorized by law: Provided 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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