The recovery of fine under Section 421 Criminal Procedure Code should only be initiated after the offender has undergone the substantive sentence, and proceedings should not be conducted without issuing a show-cause notice.

M.M. Kumar, J. - The prayer made in the instant petition filed under Article 226 of the Constitution of India is for issuance of directions to the respondents to consider and decide his legal notice dated 5.11.2006 (Annexure P-2).

2. The undisputed facts are that the petitioner was convicted on 7.9.1989 by learned Additional Sessions Judge, Barnala, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He was sentenced to undergo rigorous imprisonment for ten years and also to pay a fine of Rs. one lac. In default of payment of fine, he was required to undergo imprisonment of two years. It is further undisputed that the conviction and sentence imposed by learned Additional Sessions Judge, Barnala, has been upheld upto Honble the Supreme Court and the petitioner is serving the same. On the basis of order dated 2.9.2002, passed by learned Additional Sessions Judge, Barnala (Annexure R-1), asking the Collector, Barnala to recover the amount of Rs. one lac of fine, as arrears of land revenue, the Collector has attached the entire land of the petitioner vide Rapat dated 10.10.2002, to recover the fine of Rs. one lac and no notice was issued to him in regard thereto. He came to know of the said fact only in the year 2002, when he obtained a copy of jamabandi of his land for taking loan. The market value of the land, as assessed by the Halqua Patwari, is Rs. seven lacs per acre, whereas the petitioner has to pay only Rs. one lac as fine. The petitioner has also served a legal notice upon the respondents for vindicating his claim and releasing of the land from attachment. However, no steps were taken and the respondents proceeded further for auctioning the entire land of the petitioner on 17.4.2007.

3. The respondents have filed an affidavit of Sub Divisional Magistrate, Barnala, stating that the proceedings of attachment and auction have been initiated on the directions issued by learned Additional Sessions Judge, Barnala, vide order dated 2.9.2002 (Annexure R-1).

4. Mr. S.K. Laddi, learned counsel for the petitioner, has submitted that in cases where the sentence of rigorous imprisonment, in the alternative has been imposed, then the stage for recovery of fine would not arrive till the time the sentence for the main offence has been undergone served. In that regard, he has placed reliance on proviso to Section 421 Criminal Procedure Code and submitted that the action of the respondents is in flagrant violation of the aforementioned provisions and therefore, the attachment, as well as auction proceedings, are liable to be set aside.

5. Ms. Charu Tuli, learned State counsel, on the other land, has contended that all the aforesaid proceedings have been initiated in pursuance of the directions issued by learned Additional Sessions Judge, Barnala vide order dated 2.9.2002 (Annexure R-1).

6. After hearing learned counsel for the parties, we are of the considered view that the proceedings initiated by respondent on the basis of the order passed by learned Additional Sessions Judge, Barnala, is not sustainable in view of proviso to Section 421 Criminal Procedure Code For facility of reference, Section 421 is reproduced here-in-below :-

"421. Warrant for levy of fine.-

(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may -

(a) Issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;

(b) Issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both of the defaulters :

Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons t