Bano Bi vs State of Madhya Pradesh

Mrs. S.R. Waghmare, J.—This appeal has been filed u/s 374 of the Cr.P.C. by accused appellant Bano Bi being aggrieved by the judgment dated 9/2/2007 passed by the Special Judge, N.D.P.S. Act Ratlam in Special Case No. 36/2002 convicting the accused for offence under Sections 21(C) of the N.D.P.S. Act and sentencing him to undergo 10 years R.I. with fine of Rs. 1,00,000/-. In case of default to pay the fine he was to undergo an additional sentence of one year''s S.I. Brief facts of the prosecution case are that on the date of incident i.e. on 2.10.2002 the Thana Prbhari Shri B.S. Malviya, police station Industrial Area, Jaora, Ratlam received an information that an outside lady smuggler, who is aged about 50 years, wearing blue and cream coloured salwarkurta received heroine from another smuggler resident of Mandsaur and she was travelling in an auto rickshaw from Hussain Tekari to Jaora bus stand and she would leave Jaora for Ratlam and thereafter she would leave Ratlam for Mumbai. She was carrying a green and white coloured basket, which contains smack and she would leave at around 5.30 O''clock from Hussain Tekari to Jaora bus stand. The information was noted in the rojnamcha and thereafter Shri Malviya summoned panch witnesses Jagdish and Bherulal. They were informed about the information received, and prepared the memo u/s 42 of the NDPS Act and sent the same to S.D.O.P, Jaora. Thereafter the raiding party proceeded towards the spot along with the investigating materials. On reaching spot, they laid a siege and after around 10-15 minutes an auto rickshaw bearing registration No. M.P. 14/T-0522 came from Hussain Tekari, they found the accused in the auto rickshaw as per the information. Upon enquiry she stated that her name is Bano Bi w/o Munshi Khan resident of U.P. and permanent address was Janata Colony, Mandsaur. She was informed about the information received and informed of her rights u/s 50 of the NDPS Act to be examined personally either through a gazetted officer or through Magistrate or if she wanted to be examined through a lady Sub Inspector Munni Parihar. On her consent, she was examined by lady Sub Inspector Munni Parihar. Upon examining the bag, it was found to contain clothes and also four polythene bags and it contained grey coloured powder and also recovered a sum of Rs. 1000/-from her possession. Upon smelling and tasting the powder, it was found to be heroine and on weighing the same, it was found to be 400 gms of heroine in three bags and 300 gms. in another bag. On completing the procedure by taking two samples of 5-5 gms. each of the same it was duly sealed and sent to the Forensic Science Laboratory for chemical examination. The seizure memo was also prepared u/s 57 of the NDPS Act and sent the report to the SDOP, Jaora. Thereafter the accused was arrested and charged for offence under Sections 8/21(C) of the NDPS Act and duly committed to her trial.

Accused/appellant abjured her guilt and stated that she has been falsely implicated in the matter. On the basis of the evidence on record, the Trial Court convicted and sentenced the appellant as already stated herein above. Being aggrieved, the appellant has filed the present appeal.

Counsel for the appellant has not raised any serious arguments besides the usual objection that the mandatory provisions under Sections 42 and 50 of the NDPS Act were not followed by the lower Court. The main thrust of the argument of the Counsel for the appellant is that the appellant has already undergone the nine years six months custodial sentence for offence under Sections 8/21(C) of the NDPS Act as imposed by the trial Court. And the fine amount which was imposed by the trial Court for a sum of Rs. 1,00,000/-could not be paid. To bolster his submissions, he placed reliance in the matter of Shanti Lal Vs. State of M.P., whereby the Apex Court has held that 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. On considering the facts and circumstances of accused appellant the Apex Court had held that if the Court finds that since the accused is a poor person and the fact that in the said case he was only a carrier and had to maintain his family and it was his first offence the Apex Court had reduced the sentence from three years to six months rigorous imprisonment to meet the ends of justice. Hence, Counsel has prayed that the similar benefit be granted to the accused/appellant.

Counsel for the respondent/State, on the other hand, has fully supported the judgment of the lower Court. He has however, not opposed the alternative prayer of the Counsel for the appellant for reduction of custodial sentence in default of payment of fine on the basis of the directions given by the Apex Court in the case of Shantilal (supra).

On considering the above submissions, I find that a short question raised is whether sentence in default of fine can be reduced in terms of Shantilal (supra). I find that the case is fully covered by the above mentioned case and the ratio shall apply in the present case also.

In this light, the appeal is partly allowed, conviction recorded and sentence imposed on the appellant to undergo rigorous imprisonment for ten years is confirmed and upheld. An order of payment of fine of rupees one lakh is also upheld. However, the sentence in default of payment of fine that the appellant shall undergo rigorous imprisonment for one year is reduced to rigorous imprisonment for six months.

Consequently, to this extent, the appeal filed by the appellant is allowed. If the appellant has undergone substantive sentence of rigorous imprisonment for ten years for offence u/s 8/21(C) of the NDPS Act; as also rigorous imprisonment for six months as modified in default of payment of fine, the appellant shall be set at liberty forthwith unless she is required in any other offence. If the appellant has not completed the said period, she will be released after the period indicated herein above is over. The appeal is accordingly partly allowed to the extent herein above indicated.