ORDER :

Leave granted.

On 30.08.2013, this Court issued notice in the petition preferred by Kalyan Singh confined to the quantum of sentence and fine.

2. Learned counsel for the appellants contend, that both the accused having been found guilty under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act'), were sentenced to suffer rigorous imprisonment for ten years each, and were also sentenced to pay a fine of Rs.1,00,000/- each. In default of payment of fine, each of the accused was liable to undergo further simple imprisonment for a period of two years. The above sentences imposed by the Special Sessions Judge, Pithoragrah on 30.01.2010 were re-affirmed in the impugned orders passed by the High Court on 04.05.2012 and 12.04.2013.

3. Insofar as the quantum of sentence is concerned, the submission of the learned counsel is limited to the consequential sentence imposed by the Courts below, on account of non-payment of the amount of fine required to be deposited. Insofar as the instant aspect of the matter is concerned, learned counsel for the appellants, in the first instance, placed reliance on the decision rendered by this Court in Sasikumar and another v. State of Kerala, (2013) 11 SCC 680, and invited our attention to the following observations :

"6. We would like to further observe that from the facts of the case it is evident that the appellants and the other accused in this case are not the real men behind the nefarious trade of illicit intoxicants in the State. From the quantity seized from the possession of the accused and the manner in which it was being carried, it is evident that the three accused were only small time operators in the illicit trade of arrack and though visible, they constitute the weakest link in the chain of illicit trade in arrack. In those circumstances, we think a further reduction of the sentence would be quite in order. We, accordingly, reduce the sentence of imprisonment from 18 months, as awarded by the High Court, to one year and further reduce the sentence in default of payment of fine from six months to fifteen days.

8. Before parting with the record of the case, we would like to point out that Section 8(2) of the Abkari Act does not fix any upper limit for the fine but lays down that the fine shall not be less than Rs.1,00,000/-. Since the minimum amount of fine prescribed by the law is kept so high, the courts naturally give the default sentence of imprisonment for a substantially longer period. As noted above, the trial court has given the default sentence of one year which was reduced by the High Court to six months. We may note that in cases where poor people like the appellants who may only be the carrier of the arrack or who may be trying to eke out a living from the illegal trade are caught committing the offence, they are hardly in position to pay the fine of Rs.1,00,000/- and for them the default sentence becomes an additional period of incarceration. In a way, fixing the minimum fine at such a high amount, regardless of the countless possible variables in the commission of the offence under Section 8(1), leads to discrimination in favour of those convicts who have sufficient means to pay the fine and, thus, avoid any default imprisonment and the small fries for whom the default sentence would invariably mean an additional sentence of imprisonment. To our mind, it is desirable to leave the Court free in exercise of judicial discretion in the matter of imposition of fine.

Additionally, reliance was placed on the decision rendered by this Court in Shahejadkhan Mahebubkhan Pathan v. State of Gujarat, (2013)1 SCC 570, wherefrom, learned counsel for the appellants invited our attention to the following observations :

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,