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2017 Supreme(Del) 2729
IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATIBHA RANI, J.
ABDUL KALAM - APPELLANT
Versus
STATE (GOVT OF NCT OF DELHI) - RESPONDENT
CRL.A. 178 of 2016
Decided On : 09-08-2017
For the Appellant : Mr. M.L. Yadav
For the Respondents: Mr. Kewal Singh Ahuja, Mohd. Ismail
Imprisoning a person due to poverty and inability to pay fines is violative of Article 21 of the Constitution.
Headnote:
Narcotic Drugs and Psychotropic Substances - Possession of Ganja - Section 20(C) of NDPS Act, 1985 - [Section 20(C)] - The court maintained the appellant's conviction under Section 20(C) of the NDPS Act, but reduced the sentence from 12 years to 10 years and the default imprisonment from six months to one month, considering the nature of the substance recovered and the appellant's family circumstances.
Fact of the Case:
The appellant was found in possession of 26 KG of Ganja and was convicted under Section 20(C) of NDPS Act. He appealed against the conviction and sentence, seeking a lenient view on the quantum of sentence due to his family circumstances.
Finding of the Court:
The court maintained the appellant's conviction under Section 20(C) of NDPS Act and reduced the sentence from 12 years to 10 years, and the default imprisonment from six months to one month, considering the nature of the substance recovered and the appellant's family circumstances.
Issues: Conviction and sentence under Section 20(C) of NDPS Act, 1985, and the quantum of sentence in light of the appellant's family circumstances.
Ratio Decidendi: The court reduced the sentence based on the nature of the substance recovered and the appellant's family circumstances, citing the principle that imprisoning a person due to poverty and inability to pay fines is violative of Article 21 of the Constitution.
Final Decision: The appeal was partly allowed, and the impugned order on sentence was modified to reduce the substantive sentence to 10 years and the default imprisonment to one month.
PRATIBHA RANI, J.
1. The instant appeal has been preferred by the appellant Abdul Kalam assailing the judgment and order on sentence dated 4th November, 2015 and dated 18th November, 2015 respectively whereby he has been convicted for committing the offence punishable under Section 20(C) of Narcotic Drugs and Psychotropic Substances (‘NDPS’) Act, 1985 and sentenced to undergo RI for twelve years with fine of Rs. 1 lakh and in default of payment of fine to undergo SI for six months.
2. Briefly stating, the case of the prosecution is that appellant/convict was found in conscious possession of 26 KG of Ganja on 16.3.2012 at about 8 PM near Gol Chakkar, Mori Gate, Delhi. The accused was arrested and after completion of investigation, a charge-sheet was filed. Initially, the case was filed against two accused persons i.e. the appellant Abdul Kalam and one Murasalim Sheikh. However, Murasalim Sheikh had expired during pendency of the trial.
3. The accused pleaded not guilty and claimed trial. The learned Trial Court after concluding the trial held the appellant guilty for committing the offence punishable under Section 20(C) of NDPS Act and sentenced him in the manner aforesaid.
4. Feeling aggrieved, the appellant has challenged his conviction and sentence by filing this appeal.
5. Pursuant to the production warrants being issued, the appellant has been produced from custody.
6. Mr. M.L. Yadav, learned counsel for the appellant, on instructions, submits that the appellant is not challenging his conviction under Section 20(C) of NDPS Act and prays that a lenient view be taken on the quantum of sentence. It has been submitted that the appellant is not a habitual offender. He has a large family to support and he was the only bread earner of his family. He worked as a rickshaw puller at the time when this occurrence had taken place.
7. The appellant has also placed on record an application (handwritten) wherein the appellant has mentioned he is not challenging his conviction and prays for a lenient view on the quantum of sentence.
8. Since the appellant is not challenging his conviction for being in possession of 26 kg of GANJA, his conviction under Section 20(C) of NDPS Act is maintained.
9. So far as prayer of the appellant on the quantum of sentence is concerned, while passing order on sentence, the learned Trial Court has noted the following submissions:-
(i) He is in judicial custody since 17th March, 2012.
(ii) His family consists of three minor daughters, two sons and a wife.
(iii) He is not a previous offender and is not involved in any other case except the instant case.
10. The learned Trial Court, after recording the submissions of the appellant and of the State that such type of offences are on rise in the society, awarded the sentence of RI for twelve years with fine of Rs. 1 lakh and in default of payment of fine to undergo SI for six months.
11. Taking into consideration that the recovery in this case is of GANJA and the appellant is not having any criminal antecedents, minimum sentence prescribed under the Act being 10 years would serve the purpose of this special legislation. At the same time, taking into consideration the poor financial condition of the appellant and his incapacity to pay the fine of Rs. 1 lac, making him to undergo imprisonment for a period of six months because of his poverty appears to be on higher side.
12. The issue of reducing the sentence awarded to a convict in default of payment of fine because of his financial condition has been dealt with by the Division Bench of Madras High Court in the case of M. Balasubramanian Vs. State 2012 Cri LJ 2486. The relevant portion of report is extracted herein below:-
“27. When a person is very poor and because of his poverty he could not pay the fine amount and is ordered to remain in jail even after the period of substantive sentence of imprisonment is over, a serious prejudice would be caused to the person. This principle has been laid down by the Apex Court in M
