Mohammad Ismile vs State Of U.P.
2017 Latest Caselaw 6436 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 13
 

 
Case :- CRIMINAL APPEAL No. - 5111 of 2009
 

 
Appellant :- Mohammad Ismile
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- V.P. Gupta,Amit Kumar Srivastava,K.S. Chahar,Mithilesh Kumar Tiwari
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Dinesh Kumar Singh-I,J.

1. Heard Sri Sharda Prasad, Advocate holding brief of Sri Deepak Kumar Gupta and the learned A.G.A. appearing for the State.

2. This Criminal Appeal has been preferred against the judgement and order dated 21.7.2009 passed by the Additional Sessions Judge/Fast Track Court No.1, District Bijnore in S.S.T. No. 29 of 2008 (State vs. Mohammad Ismail) arising out of Case Crime No.155 of 2008, P.S. Nahtaur whereby the accused-appellant has been convicted and punished with 10 years R.I., fine of Rs.1,00,000/- and in default of payment of fine, additional one year S.I. under section 8/22 of NDPS Act.

3. In brief, facts of the case are as follows:-

4. On 18.2.2008 police party consisting of SHO Shyamvir Singh (PW-1) along with S.I. Hemvir Singh and other police personnel were busy in official duty. The informant signaled their jeep to stop and gave information that one person was standing near Roadways Bus stand with a bag in his hand, which contained huge quantity of heroin, if hurriedly approached, he could be arrested and recovery of heroin could be made. Believing this information, the SHO Shyamvir Singh (PW-1) with co-team membeers alongwith informer reached Haldwar Check Post Chauraha near Balapur where S.I. Satendra Singh and two other police personnel were apprised to make an effort to procure an independent witness but none was found. Thus the police team reached the Chauraha Bus Stand where the said person was found and as soon as he saw the police party he tried to run away but was arrested after being surrounded by all at 20:30 hrs. He disclosed the reason to run away that he was having heroin in his bag and was waiting there to hand over the bag to a party. Having come to know about the said person being in possession of contraband substance, he was apprised about his right to be searched in presence of a Gazetted Officer/Magistrate, but he expressed his confidence in the police party itself and gave consent to be searched by them. Accordingly, a consent letter was also prepared in this regard. Pursuant to the said consent, his search was made and in the bag being carried in right hand contraband substance (Heroin) weighing one kg worth Rs.one crore was recovered, out of which, 50 grams was taken out by way of sample and was kept in a separate polythene. Both the sample as well as the remaining quantity of contraband were separately sealed and the sample of seals were also prepared. Recovery memo was prepared by S.I. Hemvir Singh (PW-2). Thereafter, the police party along with accused and the recovered contraband substance returned to Police Station where an FIR was registered as Case Crime No.155 of 2008 under section 8/18/20/21/22 of NDPS Act against the accused by the Constable Suraj Pal (PW-4) and entry of this case was made in GD No.62 at 23:00 hrs. on the same day. Pursuant to the registration of that case, investigation was assigned to S.I. Santpal Singh (PW-5) who made inspection of the spot and prepared site plan at the instance of the first informant and after having recorded entire evidence and taking into consideration the report of FSL submitted charge sheet against the accused under sections 8/18/20/21/22 of NDPS Act.

5. On the basis of evidence adduced by the prosecution, a charge was framed under sections 8/22 of NDPS Act to which accused pleaded not guilty.

6. Thereafter, the prosecution examined following witnesses namely;

S.I. Shyamvir Singh as (PW-1), S.I. Hemvir Singh as (PW-2), Constable Mohd. Abbas as (PW-3), Constable Suraj as (PW-4) and S.I. Santpal Singh as (PW-5).

7. After the prosecution evidence was closed, the statement of accused was recorded under section 313 Cr.P.C in which he took plea of false implication and denied any such contraband to have been recovered from him.

8. The court below after having taken into consideration the entire evidence on record has found the accused guilty of charges under section 8/22 of NDPS Act and has awarded him the aforesaid punishment.

9. Learned counsel for the appellant has confined his argument only to the point of quantum of punishment and has stated that the accused is extremely old and comes from very poor back ground who cannot make the payment of Rs.1,00,000/- fine imposed by the court below and in default of which he has been awarded one year additional imprisonment. He sought indulgence of Court that the punishment awarded for the default of payment of fine should be reduced to an extent so that he may get early release from jail as already for approximately 10 years he has remained in jail. He submits that in this case substantive punishment of 10 years R.I. and fine of Rs.1,00,000/- has been awarded. He has prayed that in default clause the Court has discretion to reduce punishment because looking to the poor background of the accused, he would have to remain in jail for another one year only because of his poverty.

10. The learned counsel for the appellant has relied upon Shantilal Vs. State of M.P., (2008) 1 SCC (Cri) 1, the relevant paragraph nos. 31 and 39 are reproduced herein below:

"31. The next submission of the learned counsel for the appellant, however, has substance. The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or "otherwise". A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount. It is, therefore, not only the power, but the duty of the court to kept in view the nature of offence, circumstances under which it was committed, the position of the offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment fine.

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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 upto 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 mandate, ends of justice would be met if we retain that part of the direction, but order that in default of payment of fine of rupees one lakh, the appellant shall undergo rigorous imprisonment for six months instead of three years as ordered by the trial court and confirmed by the High Court."

11. It is apparent that the Supreme Court in the aforesaid case has laid down that though minimum substantive sentence cannot be reduced but the fine imposed by way of sentence would fall in the category of penalty which an accused has to undergo, in case he is unable to make payment of the awarded amount. Accused can avoid to undergo further imprisonment in default of payment by making payment of such fine, therefore, it is the duty of court to keep in view the nature of offence, circumstances under which it was committed, the position of the offender, the other relevant considerations before ordering the offender to suffer imprisonment. It is argued that the accused is very poor, whose family is unable to maintain itself, accused had not committed any offence earlier, in such circumstances such an accused may be given relief by directing him to undergo smaller punishment in default of payment of fine so that only because of his inability to pay fine, serious prejudice may not be caused to his family members who are innocent.

12. In the case at hand the learned counsel for the appellant has laid emphasis on extreme poverty of the accused. He has also brought to the notice of the Court that the accused appellant has never committed any offence in the past. He is extremely old (nearly 70 years), therefore he may be considered to be granted relief by reducing the period of imprisonment which he has to suffer in default of payment of fine. The Court considers this to be a genuine case because the prosecution has not brought to the notice of the Court any such circumstance which may militate against the accused.

13. The learned AGA has not controverted the fact that the accused has no criminal history and that he comes from a poor background. Therefore, taking all these factors into considerations, this Court is of the view that the accused may be granted relief in terms of the reduction in default sentence.

14. The judgment and order of the court below is upheld with modification to the extent that in default of payment of fine by the accused-appellant, he shall further undergo one month's additional imprisonment instead of one year. The appeal is accordingly partly allowed. If the accused has already served out the above period of incarceration in this case, he be released in this case forthwith, unless he is detained for any other offence.

15. Let a copy of this judgement be transmitted to the court below for immediate compliance and record of the lower court be also sent back.

16. The case property shall be destroyed after expiry of period of appeal, if any, or if the law permits otherwise.

Order Date :- 7.11.2017

AU