Arif Warsi and Jeevan Devi vs State (NCT) of Delhi

Shiv Narayan Dhingra, J.—In these appeals the Appellants have already undergone the substantive sentence awarded to the Appellants. The Appellants were guilty of offence under NDPS Act and were awarded RI for ten years, which is the minimum sentence provided under NDPS Act and fine of Rs. 1 lac in default of payment of fine, SI for two years. The counsel for the Appellants have pleaded that Appellants do not want to assail the order on merits and only press for reduction of sentence in lieu of payment of fine since the Appellants were poor persons. Learned Counsel relied on Eastern Book Company and Others Vs. D.B. Modak and Another, .

In Shanti Lal (supra) case the question of awarding sentence in lieu of fine was considered by the Supreme Court and the Supreme Court observed as under:

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 Code of Criminal Procedure authorizes the court to award imprisonment in default of payment of fine up to one-fourth 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 if we retain that part of the direction, but order that in default of payment of fine of rupees one lakh, the Appellant shall undergo rigorous imprisonment for six months instead of three years as ordered by the trial court and confirmed by the High Court.

Considering that the Appellants in this case are also poor persons, I allow the appeal to the extent that the sentence in lieu of payment of fine of Rs. 1 lac awarded to the Appellants shall stand modified and the Appellants shall undergo SI for eight months each instead of SI for two years in lieu of payment of fine.