Bhanwarlal vs Central Narcotics Bureau

S.R. Waghmare, J.—By this appeal u/s 374 of the Cr.P.C. appellant Bhanwarlal has challenged the order dated 29.3.2007 passed by the Special Judge, NDPS Act, Neemuch in Special Sessions Case No. 24/2003 convicting the accused for offence u/s 8/18(b) of the NDPS Act and sentencing him to 10 years rigorous imprisonment and fine of Rs. 1 lac; in default of payment of fine he was to undergo 1 year additional simple imprisonment. Counsel for the appellant has vehemently stated the fact that the appellant had been falsely implicated and the learned Judge of the lower Court had failed to consider that it was not within the appellant''s knowledge that any opium had been recovered from him. Counsel also urged that there is violation under Sections 42 and 57 of the NDPS Act and the mandatory provisions of the law had been flouted. Counsel for the appellant also candidly admitted that he was not much aggrieved by the conviction at present since the appellant has already undergone the custodial sentence of 10 years. However, the fine imposed being Rs. 1 lac the appellant being a poor person was unable to pay the same. Counsel urged that looking to the young age of the accused being only 60 years at the time of the incident; the custodial sentence of the default clause be reduced since at present the accused must be 70 years of age approximately.

Counsel placed reliance in the case of Shantilal Vs. State of M.P. (2008 (1) SCC (Cr.)) whereby under identical circumstances the Apex Court had while considering the tenability and imposition of custodial sentence in default of payment of fine found that the sentence and penalty were distinct and 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 and sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole, either in appeal or 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. Counsel stated that on account of non-payment of fine the Apex Court had consequentially reduced the sentence in default of payment from 2 years to 6 months. Counsel stated that the benefit be also extended to the present appellant.

Counsel for the respondent/State has also admitted that the appellant has undergone most of the custodial sentence except the sentence pertaining to the default of payment of fine and also admits that this Court in several matters reduced the custodial sentence in default of payment of fine.

I have gone through the impugned judgment passed by the learned trial Court and I am satisfied on going through the evidence that contraband article (opium) 4 kg 650 gram was found in possession of the appellant which was in contravention to Section 8/18(b) of the Narcotic Drugs and Psychotropic Substances Act. I have examined the evidence from different angles as well as impugned judgment and I find that no another view is possible to hold that appellant is innocent. According to us the learned Special Judge after appreciating and marshalling the oral evidence vis-a-vis to the documentary evidence rightly came to hold that charges are proved and, therefore, appellant has rightly been convicted.

Considering the above submissions, on perusal of the evidence on record and the impugned judgment and also placing reliance on Shantilal (supra), although I uphold the conviction and sentence of the accused appellant Bhanwarlal for offence u/s 8/18(b) of the NDPS Act, the custodial sentence in default of payment of fine is set aside considering the advanced age of the accused and reduced to the period already undergone. The accused is in jail and he shall be released immediately after verification of custodial sentence of 10 years R.I. if not required in any other case under intimation in writing to this Court. Consequently with these directions, the appeal is partly allowed to the extent herein above indicated.