Allahabad High Court
Dular vs State Of U.P. on 26 November, 2013
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 49
Case :- CRIMINAL APPEAL No. - 2345 of 2006
Appellant :- Dular
Respondent :- State Of U.P.
Counsel for Appellant :- Ajeet Singh Rana,Piyush Gupta,Ravindra Prasad
Counsel for Respondent :- Govt. Advocate
Hon'ble Ramesh Sinha,J.
1. Heard Sri Promod Kumar holding brief of Sri Ravindra Prasad, learned counsel for appellant and Sri Ashutosh Kumar Tripathi, learned A.G.A. appearing for State.
2. The present appeal has been filed against the judgment and order dated 24.10.2005 passed by the Additional Session Judge/Fast Track Court No.1, Kushi Nagar Sthan Padrauna, in Session Trial No.20 of 2003 State Vs. Dular, by which the trial court convicted and sentenced the appellant under section 8/20 of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as N.D.P.S. Act) for ten years Rigorous Imprisonment and fine of rupees one lakh in default of payment of fine to further undergo one year simple imprisonment.
3. The brief facts of the case are that the appellant was arrested by the police on 15.3.2003 at 15.15 hrs. at Railway crossing and was found to be in possession of three kilograms charas which was kept in a jacket under his clothes which he was wearing. Three packets of contraband article which was found from the possession of the appellant was weighed by the raiding party and each packet contained one kilogram Charas, hence the first information report was lodged against the appellant for the offence under Sections 8/20/23 of N.D.P.S. Act which was registered as Case Crime No.79 of 2003 Police Station Vishnupura District Kushi Nagar on 15.03.2003 at 7:15 p.m. After investigation the charge sheet was submitted against the appellant and, thereafter, charges were framed against him by the trial court on 9.7.2004 for the offence under section 8/22 of the N.D.P.S. Act. The trial court convicted the appellant for the offence in question and awarded a sentence of 10 years rigorous imprisonment and a fine of rupees one lakh and in default of fine to further undergo one year simple imprisonment vide judgment and order dated 24.10.2005. Hence the present appeal before this Court.
4. The only point which has been argued by the learned counsel for the appellant is that the appellant has already served out the substantive sentence of 10 years as awarded by the trial court and so far as the fine which was imposed on the appellant, he could not pay the heavy amount of fine for which he has already undergone eight months in jail, hence the sentence of imprisonment on account of default in payment of fine may be reduced to the extent he has already undergone as the appellant is a very poor person and it was his first offence and because of his poverty the appellant could not pay heavy amount of 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. The learned counsel for the appellant in support of his argument has placed reliance on a judgment of the Apex Court in the case of Shanti Lal Vs. State of Madhya Pradesh 2007 Law Suit (SC) 1090 decided on 8th October, 2007.
5. The learned A.G.A., on the other hand, has opposed the appeal so far as its merit is concerned and has submitted that the impugned judgment and order of the trial court does not suffers from any infirmity or illegality and the conviction and sentence of the applicant, which has been awarded by the trial court to be maintained by this Court, but he could not dispute the facts which has been argued by the learned counsel for appellant regarding imprisonment in default of payment of fine which the applicant has undergone and the preposition of law, which has been held in the case of Shanti Lal Vs. State of Madhya Pradesh (Supra) by the Apex Court.
6. Considered the submissions advanced by the learned counsel for the parties.
7. So far as the judgment of the trial court convicting and sentencing the appellant on merits of the case are concerned it has not been challenged by the learned counsel for the appellant and he has only limited his arguments regarding the term of imprisonment in default of fine which the appellant has undergone. Thus, the conviction and sentence of the appellant by the trial court is concern it does not suffers from any illegality or infirmity in law hence the conviction and sentence of the appellant is hereby confirmed. As far, the term of imprisonment in of default of fine of rupees one lakh is concerned the contention of the learned counsel for appellant that the appellant has already undergone eight months in jail because he is unable to pay amount of fine on account of his poverty hence rest of the imprisonment of four months may be reduced to the period he has already undergone and the appellant be released in view of the judgment of the Apex Court in the case of Shanti Lal Vs. State of Madhya Pradesh (Supra) has force.
8. The Apex Court in the case of Shanti Lal Vs. State of Madhya Pradesh (Supra) has held "that the term of imprisonment in dafault of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. But considering the circumstances that he is a very poor; he is merely a carrier; he has to maintain his family; it was his first offence; because of poverty, he could not pay 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."
9. Considering the aforesaid judgement, of the Apex Court which is squarely covered under the facts and circumstances of the present case as, it appears that the appellant has already undergone eight months in jail because he is unable to pay fine, because of his poverty 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. Hence the order of fine of rupees one lakh is also upheld, but the order that in default of payment of fine the appellant shall further undergo rigorous imprisonment for one year may be reduced to the period he has already undergone, to that extent appeal is allowed.
10. If the appellant has undergone substantive sentence of rigorous imprisonment of ten years as also rigorous imprisonment for eight months as modified by this Court in default of payment of fine, the appellant shall be set at liberty forthwith unless he is required in any other offence. If the appellant has not completed the said period he will be released after the period indicated herein above.
11. With the aforesaid observations and directions the appeal of the appellant is partly allowed.
Order Date :- 26.11.2013
Dev/-
