2007 Supreme(SC) 1290

2007(8) Supreme 263
Supreme Court of india
(From Madhya Pradesh High Court)
C.K. Thakker & Altamas Kabir, JJ.
Shanti Lal — Petitioner
versus
State of M.P. — Respondent
Appeal (crl.) 1375 of 2007
[Arising out of SLP (Cr.) No. 752 of 2007]
Decided on : 08-10-2007

important point
Sections 63 to 70, IPC and the provisions of Cr PC relating to award of imprisonment in default of payment of fine would apply to all cases wherein fines have been imposed on an offender; unless the ‘Act, Regulation, Rule or Bye-law contains an express provision to the contrary.

Headnote:(a)Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 8 r/w Section 18 – Appellant was not possessing on his person contraband opium, but it was recovered from a bag carried by him – All procedural requirements had been complied with – The courts below, therefore rightly convicted and sentenced the appellant-accused. (Para 12)

       (b)Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 18 r/w sections 63 to 70, IPC; section 30, Cr. P.C. and Section 25, General Clauses Act, 1897– Jail term in default of fine – Even in absence of specific provision in the Act empowering a Court to order imprisonment in default of payment of fine, such power is implicit and is possessed by a Court administering criminal justice – If a person commits any offence under IPC, he can be punished and when such offence is punishable with substantive sentence and fine, or substantive sentence or fine, or fine only, in default of payment of fine, he can be ordered to undergo imprisonment. (Paras 14, 16 and 19)

       (c)Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 18 – There is no express power in a Court to order imprisonment in default of payment of fine – But the law is well-settled that such an order can be passed by a competent Court of law having power to impose fine as one of the punishments. (Para 20)

       ILR (1899) 22 Mad 238; AIR 1953 Cal 41 – Noticed with approval.

       1957 SCR 1032 – Relied upon.

       (d)General Clauses Act, 1897 – Section 25 – Sections 63 to 70, IPC and the provisions of Cr PC relating to award of imprisonment in default of payment of fine would apply to all cases wherein fines have been imposed on an offender unless the ‘Act, Regulation, Rule or Bye-law contains an express provision to the contrary’. (Para 26)

       (e)Indian Penal Code, 1860 – Sections 63 to 70 – 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 courts are duty bound 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. (Para 27)

       ILR 1941 All 608 : AIR 1941 All 310 – Noticed with approval.

       (1977) 2 SCC 634 – Relied upon.

       (f)Words and Phrases – ‘Sentence’ and ‘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 can always avoid to undergo imprisonment in default of payment of fine by paying such amount. (Para 27)

       (g)Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 18 – Section 18 provides for a minimum fine of rupees one lakh and a minimum imprisonment of ten years with a maximum of twenty years – These minimum punishments cannot be reduced – Clause (b) of sub-section (1) of Section 30, Cr PC authorizes 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 – The fact is that appellant-accused 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 – Considering these mitigating circumstances, direction for fine maintained but imprisonment in default of fine reduced. (Para 36)

       Facts of the case :

       On May 1, 1993, at about 7.00 a.m., the appellant was seen taking out a bag used to carry fertilizer from a heap of grain from a field. From the person of the appellant-accused, nothing was found but the bag carried by him contained 7 kilos, 60 grams of narcotic drug which was found to be opium.

       The trial Court held that the prosecution was successful in proving the case against the accused that had committed an offence punishable under Section 18 of the NDPS Act and sentenced him.

       Being aggrieved by the order, the appellant moved the High Court which confirmed the order of conviction as well as sentence recorded by the trial Court. Accordingly, the appeal was dismissed.

       Findings of the Court:

       There is no infirmity in the judgments of the courts below. However considering the mitigating circumstances, period of imprisonment in default of fine reduced.

       Result : Appeal disposed of.