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2014 Supreme(Mad) 34
Before the Madurai Bench of Madras High Court
THE HONOURABLE MRS. JUSTICE ARUNA JAGADEESAN, J.
Selvakumar @ Palaniyandi @ Palani & Others
Versus
Intelligence Officer, Chennai
Crl. A. (MD) No. 279 of 2013
Decided on: 06-01-2014
For the Appellants: T. Muruganantham.
For the Respondent: Arul Vadivel @ Sekar, Special Public Prosecutor for NDPS Act Cases.
The duty of the court to consider the nature of the offence, circumstances, and pecuniary circumstances of the accused before ordering imprisonment in default of payment of fine.
Headnote:
NDPS Act - Appeal against Conviction and Sentence - Sections 8(C) r/w 21(C), 25, 28, 29 of NDPS Act 1985 - Summary of Acts and Sections: The court discussed the provisions of NDPS Act 1985, focusing on the quantum of contraband, possession of heroin, and default sentences for non-payment of fines. The court referred to Section 30(1)(b) of the Code of Criminal Procedure and relevant case laws to determine the default sentences. The judgment highlighted the duty of the court to consider the nature of the offence, circumstances, and pecuniary circumstances of the accused before ordering imprisonment in default of payment of fine.
Fact of the Case:
The appellants were convicted under Sections 8(C) r/w 21(C), 25, 28, 29 of NDPS Act 1985 and sentenced to rigorous imprisonment and fines. The appeal challenged the default sentences for non-payment of fines, citing completed substantive sentences and inability to pay the fines.
Finding of the Court:
The court considered the appellants' arguments and previous decisions, ultimately reducing the default sentences from six months to one month rigorous imprisonment for each offence. The conviction and other aspects of the sentence were confirmed.
Issues: The issues revolved around the default sentences for non-payment of fines, completed substantive sentences, and the appellants' inability to pay the fines.
Ratio Decidendi: The court's decision was based on the duty to consider the nature of the offence, circumstances, and pecuniary circumstances of the accused before ordering imprisonment in default of payment of fine, as well as relevant provisions of the Code of Criminal Procedure and case laws.
Final Decision: The appeal was partly allowed, reducing the default sentences to one month rigorous imprisonment for each offence. The conviction and other aspects of the sentence were confirmed, and the appellants were directed to be released.
1. This Criminal Appeal is preferred against the judgment of conviction and sentence dated 22.08.2013 passed by the learned Additional District Sessions Judge and Special Judge under NDPS Act, Pudukkottai, in C.C.No.658 of 2003.
2. The appellants 1 to 4 are arrayed as the accused 1 to 4 in C.C.No. 658 of 2003 on the file of the learned Additional District and Sessions Judge, Special Judge for NDPS Act Cases, Pudukkottai. Totally, there are four accused in this case. The first appellant was convicted under Sections 8 (C) r/w 21(C), 25, 28, 29 of NDPS Act 1985 (Amended) (Act 9/2001) and sentenced to undergo 10 years rigorous imprisonment for each offence and with a fine of Rs.1 lakhs in default to undergo six months rigorous imprisonment for each offence (4 counts). The appellants 2 and 3 are convicted under Sections 8(C) r/w 21 (C), 28, 29 of NDPS Act, 1985 (Amended) Act 9/2001 and Sentenced to undergo 10 years rigorous imprisonment for each offence and to pay a fine of Rs.1 lakh for each offence in default to undergo 6 months rigorous imprisonment (total fine amount Rs.3 lakhs). The fourth appellant was convicted under section 8(C) r/w 27 (A), 28 and 29 of NDPS Act 1985 (Amended) Act 9/2001 and sentenced to undergo 10 years rigorous imprisonment for each offence and to pay a fine of Rs.1 lakhs for each offence in default to undergo 6 months rigorous imprisonment. (3 counts). Challenging the above said conviction and sentence passed by the court below, the appellants have preferred this appeal.
3. The learned counsel for the appellants 1 and 2 submitted that the appellants 1 and 2 are in prison from 27.04.2003 onwards and they have completed substantive sentence of imprisonment of 10 years and that the appellants 1 and 2 are not in a position to pay the fine amount. He would further submit that the appellants 1 and 2 are poor and have a big family to support and they are not involved in any other offence of similar nature.
4. The learned counsel for the appellants 3 and 4 who are arrayed as the accused 3 and 4 submits that the appellants 3 and 4 were arrested even on 20.04.2003 and 08.06.2003 respectively in respect of a different case and was formally shown arrest in this case on 04.03.2009. The learned counsel would submit that even in the final report, the appellants 3 and 4 namely A3 and A4 were not shown as absconding accused and shown as lodged in prison. Therefore, he would submit that they deemed to be in prison from 20.04.2003 and 08.06.2003 onwards respectively.
5. The learned counsel for the appellants 1 and 2 and the learned counsel appearing for the appellants 3 and 4 would submit that they confine their arguments only in respect of the default sentence of imprisonment for non payment of fine imposed upon the appellants since the appellants have already completed substantive sentence of imprisonment.
6. MR. Arul Vadivel @ Sekar, learned Special Public Prosecutor appearing for NDPS Act cases on the other hand would submit that in this case the appellants were in possession of 4.040 kg, 3,340 kg, 4.010 kg & 2.010 kg of Heroin (totaling 13.400 kms) and the quantum of contraband exceeded the commercial quantity and it is a serious offence under NDPS Act and therefore, he has vehemently objected to modify the default sentences.
7. This Court heard the argument of the learned counsel appearing for the appellants as well as the learned Special Public Prosecutor for NDPS Act Case.
8. The case of prosecution in brief is that on 25.04.2003, on information received by the respondent the appellants 1 and 2 were apprehended and two packets containing 4.040 and 3.340 and 4.010 and 2.010 kgs of contraband was seized from them respectively. It come to light that the accused 1 to 3 conspired together and pursuance to the said conspiracy with the financial assistance of the fourth accused and with active assistance of the third accused, A1 to A4 were planning to transport it to Srilanka.
9. After following the procedure contemplat
