“Whenever a separation is made between liberty and justice, neither, in my opinion, is safe.” Edmund Burke.

2. When the mandatory minimum amount of the fine as specified in Section 18 of the NDPS Act, 1985, cannot be reduced in view of the legislative mandate, whether the award of imprisonment in default of payment of fine can be reduced on account of inability of the accused to pay fine,[despite a decadal substantive term of imprisonment having been suffered,] is the issue raised in these two appeals.

3. As there is common question of law is involved, common judgment is pronounced in these two Criminal Appeals.

4. Both the appellants are the accused in respect of the offence under Sections 8 (c) read with 21 (c) of the NDPS Act, 1985, of which, they were put on trial before the learned Principal Special Judge, NDPS Act, in C.C.No.52 of 2006.

5. After trial, the court came to the conclusion that charges under Section 8 (c) read with 21 (c) of the NDPS Act, as amended by Act 9/2001 has been proved as against each of the appellants and they are liable to be punished for the same. Each of the appellants were convicted and sentenced to undergo ten years Rigorous Imprisonment and to pay a fine of Rs.1,00,000/- in default to undergo further period of six months Rigorous Imprisonment. Challenging the same, each of the appellants (S.Edmand and Ms.Sithi) have filed appeals in C.A.Nos.181 of 2014 and 281 of 2014, respectively.

6. Even at the outset, the learned counsel appearing for the appellants submitted that the appellants are not challenging the merits of the judgment on the conviction and sentence, but they are challenging only the default sentence, because of the change in circumstances.

7. The learned counsel for the appellants contended that the passion for liberty is natural for every human being, especially for the appellants who suffered incarceration for nearly a decade. This passion will be at its height and in turn, it reflects its inability to pay the fine and therefore, it is a fit case for reducing the imprisonment ordered in default of payment of fine and in support of this proposition, the decision reported in (2007) 11 Supreme Court cases 243 (Shantilal v. State of M.P.) where-under, under similar circumstances, the Hon'ble Supreme Court reduced the Rigorous Imprisonment of three years to Rigorous Imprisonment of six months. The relevant observation of the Hon 'ble Supreme, in the case, cited supra, reads thus:-

“39. We are mindful and conscious that the present case is under the NDPS Act. Section 18 quoted above provides penalty for certain offences in relation to opium poppy and opium. Minimum fine contemplated by the said provision is rupees one lakh [fine which shall not be less than one lakh rupees]. It is also true that the appellant has been ordered to undergo substantive sentence of rigorous imprisonment for ten years which is minimum. It is equally true that maximum sentence imposable on the appellant is twenty years. The learned counsel for the State again is right in submitting that clause (b) of sub-section (1) of Section 30, CrPC 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. But considering the circumstances placed before us on behalf of the appellant-accused that he 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. We are, therefore, of the view that though an amount of payment of fine of rupees one lakh which is minimum as specified in Section 18 of the Act cannot be reduced in view of the legislative manda