Radhey Shyam vs State of Haryana and Another

S.D. Anand, J.—The Petitioner was convicted by the Court of learned Additional Sessions Judge, Karnal, for an offence u/s 18 of the

NDPS Act (vide judgment and order dated 13.9.1999-Annexure P/1) and was sentenced to undergo rigorous imprisonment for a period of 10

years and to pay a fine of Rs. one lakh. It was further ordered that in default of payment of fine, the accused shall undergo further rigorous

imprisonment for a period of one year.

The Petitioner-accused filed an appeal (Crl. Appeal No. 983-SB of 1999 which was dismissed by this Court vide order dated 10.10.2002-

Annexure P/2) in all other respects except qua the sentence awarded to the Petitioner in default of payment of fine that period of sentence was

reduced from one year to six months.

An SLP preferred by the Petitioner-accused against the order of this Court was dismissed vide order dated 28.7.2003 (Annexure P/3).

The learned Additional Sessions Judge, Karnal initiated proceedings to recover the fine of Rs. one lakh. Annexure P-4 is the copy of order

dated 8.10.2005 passed by the Additional Sessions Judge, Karnal in that behalf. In pursuance thereof, certain properties belong to the Petitioner

came to be attacked and those are proposed to be auctioned for realization of the amount of fine.

The Petitioner-accused has filed the present petition u/s 482 Code of Criminal Procedure for obtaining quashment of the order in the matter of

recovery of fine from him.

I have heard the learned Counsel for the parties and carefully gone through the file.

The Petitioner has concededly not yet undergone the complete substantive sentence awarded to him. Thus, no occasion has arisen as yet for the

commencement of the imprisonment awarded to him in default of payment of the fine. In that view of things, it is legally inappropriate for the

learned Additional Sessions Judge to have initiated the proceedings for recovery of fine imposed upon the Petitioner.

In a similar matter which came up before the Kerala High Court, a Single Judge of that Court held that the amount of fine can be recovered only

if the accused has not undergone whole of the imprisonment awarded to him in default of payment of the fine. The relevant provision governing the

subject of revision is contained in Section 421 Cr.P.C., the relevant portion thereof is reproduced as under for facility of reference:

Warrant for levy of fine. - (1) When an offender has been sentenced to pay a fine the Court passing the sentence may take action for the

recovery of the fine in either or both of the following ways, that is to say, it may

(a) issue a warrant for the levy of the amount by attachment and sale of any moveable property belonging to the offender;

(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable

property, or both of the defaulter:

Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the

whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it

necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine u/s 357.

(2) & (3) xxx xxx xxx

In the light thereof, the present petition shall stand allowed. The impugned order dated 8.10.2005 passed by the learned Additional Sessions

Judge, Karnal (Annexure P/4) shall stand quashed and the same applies to all the proceedings taken thereunder.