Pintu Shah vs Union Of India
2017 Latest Caselaw 4676 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								     A.F.R.	
 
								  Reserved 
 

 
Case :- JAIL APPEAL No. - 6309 of 2009
 
Appellant :- Pintu Shah
 
Respondent :- Union Of India
 
Counsel for Appellant :- From Jail,A.P.Tewari,Dharm Raj Chaudhary,P.C.Srivastava,Riyajuddin Ansari,Satya Prakash Srivastava
 
Counsel for Respondent :- A.G.A.,A.K. Singh,S.K.Singh
 
and 
 
Case :- JAIL APPEAL No. - 6319 of 2009
 
Appellant :- Shanker Rai
 
Respondent :- Union Of India
 
Counsel for Appellant :- From Jail,P.C.Srivastava
 
Counsel for Respondent :- A.G.A.
 
And 
 
Case :- JAIL APPEAL No. - 6322 of 2009
 
Appellant :- Prabhu Shah
 
Respondent :- Union Of India
 
Counsel for Appellant :- From Jail,Pradeep Kumar(Ac)
 
Counsel for Respondent :- A.G.A.
 
Hon'ble Rajul Bhargava,J.

All these appeals have been preferred by the appellants,namely, Pintu Shah, Shanker Rai and Prabhu Shah against the impugned judgement and order dated 11.8.2009 passed by Additional Sessions Judge/Fast Track Court No.3, Gorakhpur in Special Sessions Trial No.14 of 2007 (State Versus Pintu Shah and others) arising out of Case Crime No.84 of 2006, Police Station Custom Department Gorakhpur, District Gorakhpur, whereby the appellants have been convicted under Sections 8/20 and 8/29 of N.D.P.S. Act and each of the them has been sentenced to undergo 10 years rigorous imprisonment with a fine of Rs.1,00,000/-each. In default of payment of fine, he has to further undergo six months imprisonment.

Since all these appeals arise out of the same judgement and order, therefore, they are being decided by a common judgement and order.

Heard learned counsel for the appellants, Sri Pradeep Kumar, learned amicus curiae appearing for the appellant, Prabhu Shah in Jail Appeal No.6322 of 2009 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 appellants,namely, Pintu Shah, Shanker Rai and Prabhu Shah have already undergone substantive sentence imposed upon them by the court below as they are in jail since 22.10.2006.

By an order of this Court dated 2.8.2017, learned A.G.A. was directed to seek instruction from the Jail Superintendent, Gorakhpur. In this behalf, a report dated 16.8.2017 has been sent by the Jail Superintendent concerned stating therein that the appellants have already undergone the substantive sentence of 10 years' rigorous imprisonment and at present they are undergoing the sentence towards default in payment of fine.

According to the prosecution itself, the appellants were arrested by the police on 22.10.2006 and since then they languishing in jail. It is further stated that since the appellants have already undergone substantive period of sentence imposed upon them by the trial court, now their prayer is confined only for reduction of period of imprisonment which they are undergoing in default of payment of fine for a period of six months' additional imprisonment. Learned counsel for the appellants has submitted that the appellants are very poor person and even during trial there was none to do proper pairvi on their behalf on account of financial constraints. Therefore, they are unable to deposit the heavy amount of fine imposed upon them by the trial court. It is stated that only on account of poverty, they have to undergo six months' additional imprisonment in default of payment of fine. Learned counsel for the appellants have submitted that since appellants have already undergone substantive sentence imposed upon them by the trial court i.e. 10 years of incarceration in jail, he has prayed that aforesaid period of imprisonment for six months in default of payment of fine be reduced to the period already undergone by them.

Learned A.G.A. has opposed the aforesaid prayer of the learned counsel for the appellant.

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 22.10.2006. During trial they were not released on bail and since after their conviction, they are continuously in jail because no bail order has been passed on their bail applications filed before this Court alongwith this appeal.

Thus, it is clear that the appellants have already undergone the substantive sentence and have only prayed to reduce their sentence of six months' additional rigorous imprisonment.

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 six months additional imprisonment awarded to the appellants for default in payment of fine, is reduced to the period already undergone by them

Accordingly, the appeal is partly allowed. The appellants shall be released forthwith, if not already released as the record reflects that 10 years' substantive imprisonment has already been completed by the appellants on 21st October, 2016. Thus it appears that the appellants must have already undergone the default sentence by now. In any view of the matter, for whatever period the appellants have remained in jail in default of payment of fine, they ought to be treated as sentence already undergone by them in default. Thus, in the facts and circumstances of the case, the appellants shall be released from jail forthwith, if not wanted in other case or suffering imprisonment in any other case.

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.

Sri Pradeep Kumar, learned amicus curiae who has assisted the Court in Jail Appeal No.6322 of 2009, is directed to be paid Rs.5,000/- towards his legal fee.

Let a copy of this judgement and order and lower court record be sent to the court below for ensuring its compliance within a week.

Order Date:- 20.09.2017

MN/-