Back
2020 Supreme(Raj) 460
IN THE HIGH COURT OF RAJASTHAN
MANOJ KUMAR GARG, J.
Kailash Chandra Mali and Ors. - Appellants
Versus
State of Rajasthan - Respondent
S.B. Criminal Appeal No. 277 of 2015
Decided On : 01-06-2020
For the Appellant :Kalu Ram Bhati, Advocate.
For the Respondents: Sudhir Tak, P.P.
Point of law:
A general principle of law reflected in Sections 63 to 70 IPC is that an amount of fine should not be harsh or excessive.
Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 8/18 - Default of payment of fine - Appellants against Conviction- Narcotic Drugs and Psychotropic - 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.
Facts of the case:
NDPS Act Cases No. 2, Chittorgarh - Trial court convicted present appellants for 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 - Payment of fine to undergo one year R.I - SHO P.S. Nimbahera during patrolling reached Jallya Check post and made a blockade - One Boelro vehicle bearing RJ 30-UA-0636 was asked to stop upon driver of vehicle suddenly escalated speed and tried to escape - 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 - Police seized contraband and arrested appellants.
Finding of the court:
Conviction recorded by learned trial court for offence under Section 8/18 of NDPS Act is hereby confirmed - Imposed upon present appellants to undergo 13 years rigorous imprisonment is hereby reduced to 10 years R.I. each - order of payment of fine in the sum of Rs. 1,30,000/- each is hereby maintained, however, circumstances of case, sentence awarded in default of payment of fine i.e. one year R.I. is hereby reduced to 6 months R.I – Court aforesaid principles of law laid down by Hon'ble Apex Court, it emerges that even in cases of N.D.P.S. Act - It is a penalty which a person incurs on account of non payment of fine - Imposed against an offender he must undergo itunless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings - Imprisonment ordered in default of payment of fine stands on a different footing - 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 - Aforesaid discussion .
Result: Present appeal is partly allowed
JUDGMENT :
Manoj Kumar Garg, J.
1. 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.
2. 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.
3. The police registered the FIR for offence under Sec. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. I have heard the rival contentions of the parties and have carefully gone through the record.
9. 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.
10. 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.
11. 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 Sec
