Allahabad High Court
Dheeru Jaiswal vs State Of U.P. on 6 September, 2017
Bench: Rajul Bhargava
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 52
Case :- CRIMINAL APPEAL No. - 2571 of 2017
Appellant :- Dheeru Jaiswal
Respondent :- State Of U.P.
Counsel for Appellant :- Balendra Kumar Singh
Counsel for Respondent :- G.A.
Hon'ble Rajul Bhargava,J.
The instant appeal has been preferred against the impugned judgement and order dated 12.4.2017 passed by Additional Sessions Judge, Court No.16, Kanpur Nagar in Special Sessions Trial No.388 of 2002 (State Versus Dheeru Jaiswal) arising out of Case Crime No.220 of 2002, Police Station Fazalganj, District Kanpur Nagar whereby the appellant has been convicted under Section 20(B) of N.D.P.S. Act and has been sentenced to undergo 12 years rigorous imprisonment with a fine of Rs.1,00,000/-. In default of payment of fine, he has to further undergo two years imprisonment.
Heard Sri Balendra Kumar Singh, learned counsel for the appellant as well as learned A.G.A. for the State.
At the very outset, learned counsel for the appellant has fairly stated that he does not propose to challenge the impugned judgement and order on its merits as instructed by his client inasmuch as the appellant has remained in incarceration for about 12 years in jail. According to the prosecution itself, he was arrested by the police on 13.09.2002 and since then he is languishing in jail. It is further stated that since the appellant has already undergone substantive period of sentence imposed upon him by the trial court, now his prayer is confined only for reduction of period of imprisonment which he has to undergo in default of payment of fine for a period of two years' additional imprisonment.
Learned counsel for the appellant has submitted that the appellant is a very poor person and even during trial there was none to do proper pairvi on his behalf on account of financial constraint. Therefore, he is unable to deposit the heavy amount of fine imposed upon him by the trial court. It is stated that only on account of poverty, he has to undergo two years additional imprisonment in default of payment of fine. Learned counsel for the appellant has submitted that since appellant has already undergone substantive sentence imposed upon him by the trial court i.e. 12 years of incarceration in jail, he has prayed that aforesaid period of imprisonment for two years in default of payment of fine be reduced to the period of six months' imprisonment.
Learned A.G.A. has opposed the aforesaid prayer of the learned counsel for the appellant. Learned A.G.A. states that he has received report from Jail Superintendent, Kanpur dated 30.5.2017 that till date the appellant has already undergone imprisonment for twelve years three months and six days.
I have considered the rival submissions made by learned counsel for the parties and perused the impugned judgement and order.
The learned counsel has placed reliance on the law laid down by the Hon'ble Apex in (2008) 1 SCC (Cri) 1, Shanti Lal Vs. State of M.P., in which the Hon'ble Apex Court, almost under the similar circumstances, has reduced the sentence awarded to the accused-appellant in default of payment of fine from three years to six month by observing as under:-
"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."
A perusal of the record shows that the appellant was arrested by the police on 13.09.2002. During trial he was not released on bail and since his conviction, he is continuously in jail.
Thus, it is clear that the appellant has already undergone the substantive part of his sentence and has only prayed to reduce his sentence of two years additional rigorous imprisonment which he will have to suffer in default of payment of fine.
Taking into account the totality of the facts and circumstances of the case and relying on the law laid down by Hon'ble Apex Court in the above cited Shanti Lal's case, the aforesaid period of two years additional imprisonment awarded to the appellant for default in payment of fine, is reduced to the period of six months imprisonment.
Accordingly, the appeal is partly allowed. The appellant shall be released after the period of sentence as indicated herein above, is over, if not required in any other offence.
The seized contraband shall be destroyed by the officer concerned in accordance with the notifications issued under Section 52A of The Narcotic Drugs and Psychotropic Substances Act.
Let a copy of this judgement and order be sent to the court below for ensuring its compliance within a week.
Order Date :- 6.9.2017
MN/-
