TMI Blog2021 (11) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... e of ₹ 1,50,000/- and in default of which, the learned trial court has imposed two years R.I. - in the cases of N.D.P.S. Act, the sentence awarded in default of payment of fine is not akin to the main sentence. It is a penalty which a person incurs on account of non payment of fine. If the sentence is imposed against an offender he must undergo it; unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings. Thus, the imprisonment ordered in default of payment of fine stands on a different footing. The conviction recorded by the learned trial court for offence under Section 8/18 of NDPS Act is hereby confirmed. The sentence imposed upon the present appellants to undergo 15 years rigorous imprisonment is hereby reduced to 10 years R.I. The order of payment of fine in the sum of ₹ 1,50,000/- is hereby maintained, however, in the facts and circumstances of the case, the sentence awarded in default of payment of fine i.e. two years R.I. is hereby reduced to one year R.I. Since the appellants have already served 11 years 04 months R.I, they may be released forthwith, if not required in any other ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years 04 months out of the total sentence of 15 years. So he prayed that a lenient view should be taken and the sentence awarded to the appellants should be reduced to that of already undergone by him. Learned counsel further submitted that towards the default of payment of the fine also, a very harsh punishment of two year R.I. has been imposed upon the appellants. While placing reliance on the judgment of Hon ble Supreme Court in the case of Shahfjad KhanMaebub Khan Pathan Vs. State of Gujarat, reported in (2013) 1 SCC 570 and Balwinder Singh Ors Vs Asstt. Commissioner, Custom and Central Excise reported in 2005 AIR SCW 3380, it was prayed that the quantum of sentence in lieu of default in payment of fine may also be reduced appropriately. No other ground was argued by the learned counsel for the appellant. Learned Public Prosecutor opposed the prayer made by the learned counsel for the appellant and submitted that there is neither any occasion to interfere with the sentence awarded to the accused appellants nor any compassion or sympathy is called for in the said case. I have heard the rival contentions of the parties and have carefully gone through the record. In vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Singh (supra), while confirming the conviction, we reduce the sentence to 10 years which is the minimum prescribed sentence under the relevant provisions of the NDPS Act. Hon ble Supreme Court while confirming the conviction of appellant therein reduced the sentence of 15 years to 10 years. Applying the law laid down by Hon ble Supreme Court in the case of Shahfjad Khan Mahebub Khan Pathan (supra) in the facts of this case, as the appellant is a first time offender, the sentence of 15 year as imposed by the learned trial court upon the appellant is hereby reduced to 10 years. Hon ble Apex Court in the case of Balwinder Singh (Supra) has held as under :- In this case, the Appellant Tarlochan Singh was the driver of the vehicle D.I.L. 3372. He was also in custody of vehicle P.J.A. 8677. His statement was recorded under Section 108 of the Customs Act. From his possession, the articles of opium and heroin were recovered and in his statement, he admitted that he knew about the presence of these drugs in the vehicle and about the transport of the drugs illegally from Ludhiana to Bombay. It is evident from the statement made by him that he committed the offences punishable u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 fine. 32. A general principle of law reflected in Sections 63 to 70 IPC is that an amount of fine should not be harsh or excessive. The makers of IPC were conscious of this problem. The authors of the Code, therefore, observed: Death, imprisonment, transportation, banishment, solitude, compelled labour, are not, indeed, equally disagreeable to all men. But they are so disagreeable to all men that the legislature, in assigning these punishments to offences, may safely neglect the differences produced by temper and situation. With fine, the case is differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 authorises the court to award imprisonment in default of payment of fine up to onefourth term of imprisonment which the court is competent to inflict as punishment for the offence. But considering the circumstances placed before us on behalf of the appellant- accused that he is very poor; he is merely a carrier; he has to maintain his family; it was his first offence; because of his poverty, he could not pay the heavy amount of fine (rupees one lakh) and if he is ordered to remain in jail even after the period of substantive sentence is over only because of his inability to pay fine, serious prejudice will be caused not only to him, but also to his family members who are innocent. We are, therefore, of the view that though an amount of payment of fine of rupees one lakh which is minimum as specified in Section 18 of the Act cannot be reduced in view of the legislative mandate, ends of justice would be met ..... X X X X Extracts X X X X X X X X Extracts X X X X
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