TMI Blog2007 (10) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated:- 8-10-2007 - C.K. THAKKER ALTAMAS KABIR, JJ JUDGMENT 1. Leave granted. 2. The present appeal is filed by the appellant accused against the judgment and order dated February 20, 2004 passed by the High Court of Madhya Pradesh (Indore Bench) in Criminal Appeal No. 1258 of 1997. By the said order, the High Court confirmed an order of conviction and sentence recorded by the Second Additional Sessions Judge, Neemuch on November 20, 1997 in Special Criminal Case No. 12 of 1994. Both the courts convicted the appellant herein for an offence under Section 8 read with Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act ) and ordered him to undergo rigorous imprisonment for ten years and also to pay fine of rupees one lakh, in default to undergo rigorous imprisonment for three years. 3. The case of the prosecution was that on May 1, 1993, at about 4.00 a.m. in the morning, Station House Officer, Ratangarh received secret information through an informant that one Shantilal (appellant herein) resident of village Kankariya Talai was carrying narcotic drug and was expected to have come from the said village. He was to ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of Section 8 of the NDPS Act, the accused Shantilal S/o Devilal, aged 32 years, R/o. Village Kankariya Talai, P.S. Ratangarh, District Mandsaur being found guilty of the offence punishable under Section 18 NDPS Act is punished with rigorous imprisonment for 10 (ten) years with a fine of rupees one lakh. In default of payment of fine, he shall undergo a further rigorous imprisonment for 3 (three) years . 7. Being aggrieved by the said order, the appellant moved the High Court of Madhya Pradesh. (Indore Bench) which confirmed the order of conviction as well as sentence recorded by the trial Court. It observed that the trial Court had rightly held that the accused was carrying contraband opium weighing 7 kilos and 60 grams and conviction recorded against him could not be said to be illegal. Regarding sentence, the High Court observed that minimum sentence was awarded by the trial Court and it did not call for interference. Accordingly, the appeal was dismissed. 8. The appellant challenged the orders passed by both the courts by filing the present appeal. This Court on January 31, 2007 passed the following order; Delay condoned. The Trial Court passed the judgment and ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to him; it was his first offence; he did not abscond after the incident and surrendered immediately; even after he was enlarged on bail, he never abused the concession granted in his favour; he presented himself before the authority of law as soon as he came to know about the dismissal of his appeal by the High Court. He has his family and even if it is held by this Court that imprisonment can be ordered in default of payment of fine as held by both the courts, on the facts and in the circumstances of the case that part of the order may be set aside and liberal view may be taken directing the release of the appellant. 10. The learned Advocate for the State of Madhya Pradesh, on the other hand, supported the order of conviction and sentence. He submitted that the trial Court appreciated the evidence on record and considered the sworn testimony of prosecution witnesses, believed them and recorded a finding of guilt against the appellant. It was also observed that the procedural requirements had been complied with and prosecution was successful in proving the guilt of the accused. Minimum substantive sentence as also minimum amount of fine (rigorous imprisonment for ten years and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has no force and is accordingly negatived. 13. As regards sentence, the appellant was carrying opium (7 kilos and 60 grams) and his case was covered by Section 18 of the Act. Minimum sentence prescribed thereunder is rigorous imprisonment for ten years which had been imposed by both the Courts below which is clearly in consonance with law. Hence, even that part of the order suffers from no infirmity and must be upheld. 14. The learned counsel for the appellant, however, submitted that the appellant has already undergone substantive sentence of ten years. From the order of January 31, 2007 extracted hereinabove, it appears prima facie that what the appellant says is correct. This is further clear from the application [Criminal Miscellaneous Application No. 1075 of 2006] filed on December 7, 2006. But it cannot be overlooked that the appellant was also ordered to pay minimum fine of rupees one lakh as required by Section 18 of the Act, and in default, he was ordered to undergo rigorous imprisonment for three years. Admittedly, the said period is not over. 15. Thus, an important and debatable question which arises for our consideration is whether a Court of law can order a convi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence. 65. Limit to imprisonment for non-payment of fine, when imprisonment and fine awardable The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine. 66. Description of imprisonment for nonpayment of fine The imprisonment which the Court imposes in default of payment of a fine may be of any description to which the offender might have been sentenced for the offence. 67. Imprisonment for non-payment of fine, when offence punishable with fine only If the offence be punishable with fine only, the imprisonment which the Court imposes in default of payment of the fine shall be simple, and] the term for which the Court directs the offender to be imprisoned, in default of payment of fine, shall not exceed tile following scale, that is to say, for any term not exceeding two months when the amount of the fine shall not exceed fifty rupees, and for any term not exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants for the levy of fines shall apply to all fines imposed under any Act, Regulation, rule or bye-law unless the Act, Regulation, rule, or bye-law contains an express provision to the contrary. 19. From the above provisions, in our opinion, it is clear that if a person commits any offence under IPC, he can be punished and when such offence is punishable with substantive sentence and fine, or substantive sentence or fine, or fine only, in default of payment of fine, he can be ordered to undergo imprisonment. Section 30, CrPC prescribes maximum period for which a Court may award imprisonment in default of payment of fine. 20. But more important issue is whether the above statutory provisions would apply to special laws and offences committed by a person not covered by IPC. In the present case, we are concerned with the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 which is a special law. There is no express power in a Court to order imprisonment in default of payment of fine. But to us, the law is well-settled and it has been held since more than a century that such an order can be passed by a competent Court of law having power to impose fine as one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se reference was intended to cases in which a substantive sentence of imprisonment must be awarded, the fine, if any, being only in addition thereto. The Legislature, by Section 64, having given the general power to impose imprisonment in default of payment of fine, then proceeded to lay down limits to that power. Section 65 limited the power in the first class of cases, Section 67 in the third class. If the second class is, as I think it is, included in the first, then Section 65 applies to it also; but, in any case, Section 33, Criminal Procedure Code, imposes the same limit in unmistakable terms. It seems to me unreasonable to suppose that the Legislature did not intend to include cases like the present in the first class since the result would be that, in such cases alone, there would be no limit save that of the general power of a Magistrate, and a first-class Magistrate in a case like the present could award two years rigorous imprisonment in default of payment of a petty fine, though in all other classes of cases his power is strictly limited . (emphasis supplied) 23. In Sukhdeo Singh v. Calcutta Corporation, AIR 1953 Cal 41, A was convicted by the Municipal Magistrate for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention had no force and it was open to the Court to order imprisonment of the accused in default of payment of fine. 26. Though Section 25 of the General Clauses Act, 1897 was not referred to in Bashiruddin Ashraf, in our opinion, bare reading of the said provision also makes it explicitly clear and leaves no room for doubt that Sections 63 to 70, IPC and the provisions of CrPC relating to award of imprisonment in default of payment of fine would apply to all cases wherein fines have been imposed on an offender unless the Act, Regulation, Rule or Bye-law contains an express provision to the contrary . We are, therefore, unable to uphold the bald contention of the appellant that in absence of specific provision to order imprisonment in default of payment of fine in a statute, a Court of law has no power to order imprisonment of an offender who fails to pay fine and such action would be illegal or without authority of law. In our judgment, in absence of a provision to the contrary, viz. that no order of imprisonment can be passed in default of payment of fine, such power is explicit and can always be exercised by a Court subject to the relevant provisions of IPC and CrPC. 27. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of perfect indifference, and who would not cross a room to avoid it. The number of the poor in every country exceeds in a very great ratio the number of the rich. The number of poor criminal it is a matter of absolute indifference whether the fine to which he is liable to be limited or not, unless it be so limited as to render it quite inefficient as a mode of punishing the rich. To a man who has no capital, who had laid by nothing, whose monthly wages are just sufficient to provide himself and his family with their monthly rice, it matters not whether the fine for assault be left to be settled by the discretion of the Courts, or whether a hundred rupees be fixed as the maximum. There are no degrees in impossibility. He is no more able to pay a hundred rupees than to pay a lac. A just and wise Judge, even if entrusted with a boundless discretion will not, under ordinary circumstances, would leave it quite in the power of an unjust or inconsiderate Judge to inflect on such an offender all the evil which can be inflicted on him by means of fine \005. It appears to us that the punishment of fine is a pecuniary appropriate punishment for all offences to which men are prompted by cupidi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here against us. He allows the criminal, if sentenced to a fine exceeding one-fourth of his property, to compel the Judge to commute the excess for imprisonment at the rate of one day of imprisonment for every two dollars of fine, and he adds, that such imprisonment must in no case exceed ninety days. We regret that we cannot agree with him; the object of the penal law is to deter from offences, and this can only be done by means of inflictions disagreeable to offenders. The law ought not to inflict punishments unnecessarily severe; but it ought not, on the other hand, to call the offender into council with his Judges, and to allow him an option between two punishments. In general, the circumstance that he prefers one punishment raises a strong presumption that he ought to suffer the other. The circumstance that the love of money is a stronger passion in his mind than the love of money is a stronger passion in his mind than the love of personal liberty is, as far as it goes, a reason for our availing ourselves rather of his love of money than of his love of personal liberty for the purpose of restraining him from crime. To look out systematically for the most sensitive part of a ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isonment. And, in my judgment, without venturing to say whether it is a course which is strictly in accordance with the law or not, I cannot help thinking that it becomes all the more undesirable to impose such a fine where the term of imprisonment to be undergo in default will bring the aggregate sentence of imprisonment to more than the maximum term of imprisonment sanctioned by the particular section under which he is convicted. I venture to think that Judges should exercise a careful discretion in the matter of superimposing fines upon long substantive terms of imprisonment . (emphasis supplied) 33. We may as well refer to a decision of this Court in Palaniappa Gounder v. State of T.N. Ors., (1977) 2 SCC 634. In that case, P was convicted by the Principal Sessions Judge, Salem and was sentenced to death. The High Court of Madras upheld the conviction but reduced the sentence from death to imprisonment for life. But while reducing the sentence, the Court imposed a fine of Rs.20,000/- on P. Leave was granted by this Court limited to the question of the propriety of fine. 34. The Court considered the provisions of IPC as also CrPC and observed that Courts have power to impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the accused persons as to the character and magnitude of the offence, and where a substantial term of imprisonment is inflicted, an excessive fine should not accompany it except in exceptional cases" (p. 177). Though that case related to an economic offence, this Court reduced the sentence of fine from Rs. 42,300/- to Rs. 4,000/-on the ground that due regard was not paid by the lower Court to the principles governing the imposition of a sentence of fine . 36. 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 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 up t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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