Naeam vs State

Het Singh Yadav, J.�This criminal appeal is directed against the impugned judgment and order dated 6.9.1989 passed by the learned IIIrd Additional Sessions Judge, Varanasi in S.T. No. 28 of 1989, State v. Naeam, convicting the appellant under sections 18 and 22 of the N.D.P.S. Act and sentencing him to undergo 10 years rigorous imprisonment and fine of Rs. 1 lac with default sentence of 4 years rigorous imprisonment for the offence under section 18 of N.D.P.S. Act and further sentenced him under section 22 of the N.D.P.S. Act to undergo 10 years rigorous imprisonment and fine of Rs. 1 lac with default sentence of 4 years rigorous imprisonment. Both the sentences shall run concurrently. The prosecution version in brief is that the complainant, who was then intelligence officer of Narcotics Control Bureau, Varanasi (in short ''N.C.B.'') on a tip-off that the appellant is a drug paddler and is keeping illicit N.D.P.S. substance at his house, laid a trap of the house of the appellant/accused-Naeam on 17.9.1987 at 10.00 A.M. along with other officials of N.C.B. Search of the premises of the appellant was conducted in between 10.00 A.M. to 12.00 Noon and 385 gms opium and 68 Methaquelone tablets were recovered from the room which was under occupation of the appellant. The search was made under the powers conferred upon the complainant under section 42 of the N.D.P.S. Act. After taking 3 samples each of the recovered opium and Methaquelone tablets, the samples and the rest of the N.D.P.S. substances recovered, were sealed in separate packets in presence of the accused/appellant and the witnesses. Seizure memo was prepared on the spot and the statement of the appellant/accused under section 67 of the N.D.P.S. Act was also recorded in writing and he admitted his guilt. Accordingly, the appellant was arrested and was produced before the Court concerned on 18.9.1987. He was remanded to judicial custody. The complainant (the intelligence officer of N.C.B.) lodged a complaint in the Court concerned, on which the Court has taken cognizance on 22.12.1987 for the offences punishable under sections 18 and 22 of the N.D.P.S. Act. During the trial, the accused/appellant pleaded not guilty and also denied the recovery of the N.D.P.S. substances from his room. The prosecution produced evidence and ultimately after hearing the learned Counsel for both sides, the Trial Court found the appellant guilty under sections 18 and 22 of the N.D.P.S. Act and sentenced him as aforementioned.

The accused/appellant having been dissatisfied with the judgment of the Trial Court, filed this appeal.

Heard learned Counsel for the appellant and Sri Sanjay Kumar Singh, learned Counsel for N.C.B. at a considerable length and I have also been taken through the legal propositions and the material on record.

Learned Counsels for both the appellants have not seriously canvassed the conviction, however, it is urged that the appellant has already served out a period of more than 10 years and he is in jail because he could not pay the fine because of the poorness and that this is his first offence, to reduce the period of default sentence which is 4 years rigorous imprisonment.

Considering the submissions made as above by learned Counsel for the appellant as he has prayed for a limited relief and also taking in view the facts and circumstances of the case, there is no need to traverse the findings relating to the conviction recorded by the Trial Court. Accordingly, the conviction passed by the learned Trial Court is hereby confirmed.

Learned Counsel for the appellant, however, laid much emphasis that as per the prosecution version only 385 gms opium which is much less than the highest limit of the commercial quantity and 68 Methaquelone tablets which is slightly above the small quantity, were recovered from the room which was occupied by the appellant-Naeam. The appellant/accused was convicted in terms of sections 18 and 22 of the N.D.P.S. Act. The appellant was awarded 10 years rigorous imprisonment and fine of Rs. 1 lac with default sentence of 4 years rigorous imprisonment under section 18 of the N.D.P.S. Act and he was further sentenced to undergo 10 years rigorous imprisonment and fine of Rs. 1 lac with default sentence of 4 years rigorous imprisonment for the offence punishable under section 22 of the N.D.P.S. Act. According to the learned Counsel for the appellant, the default sentence of 4 years rigorous imprisonment in both the sections passed as above by the learned Trial Court is very harsh. The learned Trial Judge ought not to have imposed such sentence for non-payment of fine.

The learned Counsel to bolster his submissions relied upon Shantilal v. State of M.P., 2008 (60) ACC 34 (SC) Shahejad Khan Mahebub Khan Pathan v. State of Gujarat, 2012 (79) ACC 718 (SC) and Palaniappa Gounder Vs. State of Tamil Nadu and Others,

The next limb of the arguments of learned Counsel for the appellant is that the appellant is very poor person. Therefore to pay a fine of Rs. 2 lac as imposed by the learned Trial Court for both the offences, is impossible and is beyond his means. Besides, as general principle of law reflect in sections 63 to 70 I.P.C. is that an amount of fine should not be harsh or excessive.

Learned Counsel also quoted section 30 Cr.P.C. which speaks about the sentence of imprisonment in default of fine and says that the Court shall not award more than 1/4 of the term of imprisonment which the court is competent to inflict as a punishment for the offences, otherwise than as imprisonment in default of payment of fine. In this case, the appellant has been awarded 10 years rigorous imprisonment and therefore, imposing default sentence of 4 years rigorous imprisonment is contrary to the provisions of section 30 of Cr.P.C. Learned Counsel, in the last, argued that the appellant has already undergone more than 12 years in incarceration in this case, during the trial and also during the pendency of this appeal. Therefore, the appeal may partly be allowed and the appellant may be ordered to be set at liberty forthwith.

In Shantilal''s case (supra) the Hon''ble Supreme Court held thus:

"31.....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 nonpayment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in 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. 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."

In Emperor Vs. Mendi Ali, this Court held thus:

"So far as the fine is concerned, I cannot think it is proper, in the case of a poor peasant, to add to a very long term of substantive imprisonment a fine which there is no reasonable prospect of the accused man paying and for default in paying which he will have to undergo a yet further term of imprisonment. 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 undergone 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."

In Shahejad Khan Mahebub Khan Pathan''s case (supra) the Apex Court held:

"(12) It is clear and reiterated that the term of imprisonment in default of payment of fine is not a sentence. To put it clear, it is a penalty which a person incurs on account of nonpayment of fine. On the other hand, if sentence is imposed, undoubtedly, an offender must undergo unless it is modified or varied in part or whole in the judicial proceedings. However, the imprisonment ordered in default of payment of fine stands on a different footing. When such default sentence is imposed, a person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. Accordingly, he can always avoid to undergo imprisonment in default of payment of fine by paying such an amount. In such circumstance, we are of the view that it is the duty of the Court to keep in view the nature of offence, circumstances in which it was committed, the position of the offender and other relevant considerations such as pecuniary circumstances of the accused person as to character and magnitude of the offence before ordering the offender to suffer imprisonment in default of payment of fine. The provisions of sections 63 to 70 of IPC make it clear that an amount of fine should not be harsh or excessive. We also reiterate that where a substantial term of imprisonment is inflicted, an excessive fine should not be imposed except in exceptional cases.

It is clear that clause (b) of sub-section (1) of section 30 of the Code authorizes the Court to award imprisonment in default of fine up to 1/4th of the term of imprisonment which the Court is competent to inflict as punishment for the offence. However, considering the circumstances placed before us on behalf of the appellants-accused, viz., they are very poor and have to maintain their family, it was their first offence and if they fail to pay the amount of fine as per the order of the Additional Sessions Judge, they have to remain in jail for a period of 3 years in addition to the period of substantive sentence because of their inability to pay the fine, we are of the view that serious prejudice will be caused not only to them but also to their family members who are innocent. We are, therefore, of the view that ends of justice would be met if we order that in default of payment of fine of Rs. 1.5 lakhs, the appellants shall undergo RI for 6 months instead of 3 years as ordered by the Additional Sessions Judge and confirmed by the High Court."

In the instant case, no doubt the learned trial court has imposed a minimum punishment for the offences under sections 18 and 22 of the N.D.P.S. Act. However, the default sentence for nonpayment of fine imposed to further undergo 4 years rigorous imprisonment is too harsh. The learned Trial Court while passing the default sentence of 4 years rigorous imprisonment has not taken into consideration the financial capacity of the appellant to pay the fine and ordered to go rigorous imprisonment for 4 years in default. As held by this Court in Mendi Ali''s case (supra), the Judge should exercise a careful discretion in the matter of superimposing fine upon long substantive terms of imprisonment, and the default sentence should not be very harsh.

Thus, considering the submissions made by learned Counsel for the parties and for the reasons discussed herein above, the appeal is partly allowed. The conviction recorded by the Trial Court is hereby confirmed. The sentence of 10 years rigorous imprisonment and fine of Rs. 1 lac is also upheld and default sentence of 4 years rigorous imprisonment is reduced to 1 year rigorous imprisonment respectively under both sections 18 and 22 of the N.D.P.S. Act.

Since, the appellant has already served out more than 12 years in jail and therefore, in view of the modified period of default sentence, the appellant has already spent more than the period in jail even in respect of the default sentence. Therefore, there is no need to the appellant to continuing in prison. The appellant-Naeam shall be set at liberty forthwith unless he is required in any other case. The appeal is partly allowed to the extent mentioned as above.