The instant criminal appeal has been filed by the appellants against the judgment dated 27.01.2015 passed by learned Special Judge, NDPS Act Cases
No.2, Chittorgarh in Sessions Case No. 72/2014 [73/2010], by which the trial court convicted the present appellants for the offence under Section 8/18
of Narcotic Drugs and Psychotropic Substances Act, 1985 and sentence to undergo thirteen years R.I and imposed a fine of Rs.1,30,000/- each, in
default of payment of fine to undergo one year R.I.
Brief facts of the case are that on 29.04.2010, SHO P.S. Nimbahera during patrolling reached Jallya Check post and made a blockade. At about 6:30
A.M. one Boelro vehicle bearing RJ 30- UA-0636 was asked to stop upon which the driver of vehicle suddenly escalated the speed and tried to
escape. The vehicle was stopped in which two persons were sitting who were identified as Kailash Chandra and Rakesh. Upon search of vehicle, two
bags were recovered containing total 18 kg opium for which the accused had no license or permit. The police seized the contraband and arrested the
appellants.
The police registered the FIR for offence under Section 8/18, 25 & 8/29 of NDPS Act and started investigation. After investigation, the police filed
challan against the present appellants. They denied the charges and claimed trial.
During the course of trial, the prosecution examined 21 witnesses and various documents were also exhibited. Thereafter, statement of appellants
under section 313 Cr.P.C was recorded and three witnesses were examined on the defence side.
Upon conclusion of the trial, the learned trial court vide impugned judgment dated 27.01.2015 convicted and sentenced the appellants for offence
under Section 8/18 NDPS Act as mentioned earlier.
At the threshold, learned counsel for the appellants argued that he does not challenge the order of the conviction, however, he submitted that the
appellants have already served the total sentence of 10 years 01 month as on 31.05.2020 out of the total sentence of 13 years. So he prayed that a
lenient view should be taken and the sentence awarded to the appellants should be reduced to that of already undergone by them. Learned counsel
further submitted that towards the default of payment of the fine  also, a very harsh punishment of one year R.I. has been imposed upon the
appellant. While placing reliance on the judgment of Hon'ble Supreme Court in the case of Shahfjad Khan Maebub Khan Pathan Vs. State of Gujarat,
reported in (2013) 1 SCC 570 and Balwinder Singh & Ors Vs Asstt. Commissioner, Custom and Central Excise reported in 2005 AIR SCW 3380, it
was prayed that the quantum of sentence in lieu of default in payment of fine may also be reduced appropriately. No other ground was argued by the
learned counsel for the appellants.
Learned Public Prosecutor opposed the prayer made by the learned counsel for the appellants and submitted that there is neither any occasion to
interfere with the sentence awarded to the accused appellants nor any compassion or sympathy is called for in the said case.
I have heard the rival contentions of the parties and have carefully gone through the record.
In view of the limited prayer made on behalf of the appellants, this Court need not go into the merits of the case and the conviction recorded by the
learned trial court is hereby upheld.
As far as the sentence is concerned, the learned trial court has awarded a total punishment of 13 years RI and in default of payment of fine to
undergo one year's RI.
In the case of Shahfijad Khan Mahebub Khan Pathan (supra), Hon'ble Supreme Court held as under:
8) Coming to the question of sentence, it is not in dispute that the appellants were charged for possession of brown sugar in the quantity of 500 grams
which falls under the head ""commercial quantity"". As per the notification of the Government being No. SO.1055(E) dated 19.10.2001, it is necessary
to consider the same in terms of Section 21(c) of the NDPS Act. The trial Judge, taking note of the fact that the appellants were carrying such
commercial quantity of brown sugar to the State of Gujarat from the State of Madhya Pradesh, awarded RI for 15 years and also directed them to
pay a fine of Rs.1.5 lakhs each, in default, to further undergo RI for 3 years. For offences punishable under Sections 8(c), 21 and 29 of the NDPS
Act, undoubtedly, the minimum sentence prescribed is 10 years which may extend to 20 years with fine. In this regard, it is useful to refer a decision
of this Court in Balwinder Singh vs. Asstt. Commr., Customs & Central Excise, (2005) 4 SCC 146. The appellant therein was convicted for offences
punishable under Sections 18, 22, 23, 25, 28, 29 and 30 of the NDPS Act and Section 120-B of the Indian Penal Code, 1860 (in short 'the IPC'). This
Court, having regard to the facts and circumstances and taking note of the fact that the appellant therein was convicted for the said offences for the
first time (emphasis supplied), while confirming the conviction, reduced the sentence from 14 years to 10 years for the offences under the NDPS Act
and the IPC.
9) It is projected before us that both the appellants are first time offenders and there is no past antecedent about their involvement in offence of like
nature on earlier occasions. It is further brought to our notice, which is also not disputed by the learned counsel for the State that as on date, the
appellants had served nearly 12 years in jail. In view of the same and in the light of the decision of this Court, in Balwinder Singh (supra), while
confirming the conviction, we reduce the sentence to 10 years which is the minimum prescribed sentence under the relevant provisions of the NDPS
Act.
Hon'ble Supreme Court while confirming the conviction of appellant therein reduced the sentence of 15 years to 10 years. Applying the law laid down
by Hon'ble Supreme Court in the case of Shahfjad Khan Mahebub Khan Pathan (supra) in the facts of this case, as the appellant is a first time
offender, the sentence of 15 year as imposed by the learned trial court upon the appellant is hereby reduced to 10 years.
Hon'ble Apex Court in the case of Balwinder Singh (Supra) has held as under :-
In this case, the Appellant Tarlochan Singh was the driver of the vehicle D.I.L. 3372. He was also in custody of vehicle P.J.A. 8677. His statement
was recorded under Section 108 of the Customs Act. From his possession, the articles of opium and heroin were recovered and in his statement, he
admitted that he knew about the presence of these drugs in the vehicle and about the transport of the drugs illegally from Ludhiana to Bombay. It is
evident from the statement made by him that he committed the offences punishable under Sections 18, 21, 22, 23, 25, 29 and 30 of the N.D.P.S. Act.
5. We find no reason to interfere with the conviction and sentence entered against the Appellant Tarlochan Singh and the criminal appeal stands
dismissed. We are told that the Appellant was convicted of this offence for the first time. The sentence imposed on him was imprisonment for a
period of 14 years. Having regard to the facts and circumstances of this case, we reduce the sentence from 14 years to 10 years each for the
offences under the N.D.P.S. Act and for the offence under Section 120B, I.P.C. The sentences shall run concurrently. The direction to pay fine is
maintained, but the default sentences shall also run concurrently.
Now, coming to the next argument of the appellant regarding the default sentence in lieu of fine, it is evident that the learned trial court has imposed a
fine of Rs. 1,30,000/- and in default of which, the learned trial court has imposed one year R.I.
Hon'ble Supreme Court in the case of Shahfijad Khan Mahebub Khan Pathan (supra), has laid down the following law on the point of 'default of
sentences':-
Default Sentence:
10) Coming to the next claim of the appellants, i.e., default sentence, the trial Judge, taking note of various aspects including the fact that the
appellants were carrying commercial quantity of brown sugar from the State of Madhya Pradesh to the State of Gujarat for doing business, imposed a
fine of Rs.1.5 lakh each, in default, ordered to undergo RI for 3 years.
11) According to the learned counsel for the appellants, the default sentence, i.e., 3 years, is very harsh and the Additional Sessions Judge ought not to
have imposed such sentence for non-payment of fine amount. In view of the same, he relied on a decision of this Court in Shantilal Vs. State of M.P.
(2007) 11 SCC 243 wherein this Court considered the imprisonment in default of payment of fine with reference to various provisions of IPC and the
Code of Criminal Procedure, 1973 (in short 'the Code') and held as under:
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 non-payment 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.
32. A general principle of law reflected in Sections 63 to 70 IPC is that an amount of fine should not be harsh or excessive. The makers of IPC were
conscious of this problem. The authors of the Code, therefore, observed:
Death, imprisonment, transportation, banishment, solitude, compelled labour, are not, indeed, equally disagreeable to all men. But they are so
disagreeable to all men that the legislature, in assigning these punishments to offences, may safely neglect the differences produced by temper and
situation. With fine, the case is different. In imposing a fine, it is always necessary to have as much regard to the pecuniary circumstances of the
offender as to the character and magnitude of the offence.
In para 12 of the said judgment, Hon'ble Supreme Court observed as under:-
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 non-payment 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.
In the case of Shantilal vs. State of M.P. reported in (2007) 11 SCC 243 while dealing with the issue under N.D.P.S. Act, Hon'ble Supreme Court
after considering the provisions of Sections 63 to 70 of IPC, section 30 of Cr.P.C. and relying upon various precedents of Hon'ble the Apex Court and
also referring the commentary of Ratanlal and Dhirajlal observed in para 39 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 CrPC authorises 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.
In view of the aforesaid principles of the law laid down by Hon'ble the Apex Court, it emerges that even in the cases of N.D.P.S. Act, the sentence
awarded in default of payment of fine is not akin to the main sentence. It is a penalty which a person incurs on account of non payment of fine. If the
sentence is imposed against an offender he must undergo it; unless it is set aside or remitted in part or in whole either in appeal or in revision or in
other appropriate judicial proceedings. Thus, 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.
Therefore, it is the duty of the court to keep in view the nature of the offence, the circumstances under which the offence was committed, the
financial status of the offender and other relevant considerations such as pecuniary circumstances before ordering the offender to suffer imprisonment
in default of payment of fine.
In the light of aforesaid discussion, the present appeal is partly allowed. The conviction recorded by the learned trial court for offence under Section
8/18 of NDPS Act is hereby confirmed. The sentence imposed upon the present appellants to undergo 13 years rigorous imprisonment is hereby
reduced to 10 years R.I each. The order of payment of fine in the sum of Rs.1,30,000/- each is hereby maintained, however, in the facts and
circumstances of the case, the sentence awarded in default of payment of fine i.e. one year R.I. is hereby reduced to 6 months R.I.
With this modification, the appeal is decided. Record of the trial court be sent back forthwith.
