Allahabad High Court
Vishwanath Mandal vs State Through Cbi on 6 April, 2022
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 27
Case :- CRIMINAL APPEAL No. - 122 of 2022
Appellant :- Vishwanath Mandal
Respondent :- State Through Cbi
Counsel for Appellant :- Anil Kumar Sharma
Counsel for Respondent :- Shiv P. Shukla
Hon'ble Rajeev Singh,J.
Heard learned counsel for the appellant, Shri Shiv P. Shukla, learned Special Counsel for the C.B.I. and perused the material brought on record.
This appeal has been filed against the judgment and order dated 30.10.2021 passed by Special Judge, Anti Corruption, CBI, Court No. 5, Lucknow in R.C. No. 1(E) of 2015, under Sections 120(B) read with Sections 489 B, 489 C I.P.C., P.S. CBI District Lucknow.
The appellant has been convicted and sentenced under Sections 120(B) read with Sections 489-B, 489-C I.P.C. for a period of three years rigorous imprisonment with a fine of Rs.75,000/-, in default of which, he has to go three months additional imprisonment. He has also been convicted and sentenced under Section 489-B I.P.C. for a period of three years imprisonment with a fine of Rs.75,000/-, in default of which, he has to go three months additional imprisonment. The sentences, so awarded, were to run concurrently.
Learned counsel for the appellant submits that he does not want to press the conviction in the offences and confines his prayer only on the point of sentence with the submission that appellant is a poor person and he is not able to deposit the fine amount, therefore, the part of the judgment may be modified to the extent that in default of fine, his confinement period may be reduced. In support of his submission, learned counsel for the appellant places reliance on the judgment of the Hon'ble Supreme Court in the case of Shantilal Vs. State of M.P., (2007) 11 SCC 243 (para 39) and submits that in default of depositing the fine, additional imprisonment may be reduced to two months.
Shri Shiv P. Shukla, learned Special Counsel for the C.B.I. has no objection, in case, the period of additional imprisonment of three months is reduced to two months from the date of judgment.
I have considered the argument advanced by the learned counsel for the appellant, learned Special Counsel for the C.B.I. and gone through the impugned judgment and order of the trial court.
Hon'ble Supreme Court in para 39 of the judgment of Shantilal (supra) has held as under:
"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 that 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 authorises 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."
The sole prayer of the learned counsel for the appellant is that due to poor financial condition, the appellant is unable to deposit the fine amount and, therefore, the period of additional imprisonment may be reduced. Further, as per learned counsel for the appellant, the appellant had undergone imprisonment for the period of 3 years 9 months and 24 days, as on date.
It is evident from the record that appellant is in jail since 12.06.2018 and, therefore, his confinement period is 3 years 9 months and 24 days, as on date.
Considering the facts and circumstances of the case and in view of the judgment of the Hon'ble Apex Court in the case of Shantilal (supra), the period of additional confinement is hereby reduced to two months in place of three months.
The appeal is, accordingly, partly allowed. The appellant shall be released forthwith, if not wanted in any other criminal case.
Office is directed to communicate this order forthwith to the court concerned along with Senior Superintendent, District Jail, Lucknow to ensure compliance, and also to send back the lower court record alongwith copy of the judgment.
Order Date :- 6.4.2022
VKS
