Kurban @ Khurban vs The State Of Madhya Pradesh
2021 Latest Caselaw 8843 MP

                                                                             1         Cr.A.No.1734/2013

                                                 IN THE HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE.

                                             SINGLE BENCH: HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)

                                                                CRIMINAL APPEAL NO.1734/2013

                                                                  KURBAN @ KHURBAN

                                                                            Vs.

                                                               STATE OF MADHYA PRADESH

                                            _______________________________________________________

                                            Shri Dharmendra Yadav, learned counsel for the appellant.
                                            Shri Gopal Yadav, learned counsel for respondent/State.
                                            _____________________________________________________________

                                                                  JUDGMENT

(Passed on this 15th day of December, 2021)

This present appeal is filed by the appellant against the judgment dated 16.09.2013 passed by the learned Special Judge, (NDPS) Alirajpur (M.P.) in Special Case No.01/2011 whereby the appellant has been convicted for offence under Sections 8 read with Section 20(A)of the Narcotics Drugs Psychotropic Substances Act, (hereinafter referred to as the 'Act') and sentenced to undergo 10 years R.I. with fine of Rs.1 lac and in default of payment of fine to further undergo R.I. for 2 years and 6 months.

2. A per the prosecution story on 30.11.2011, on the secret information received by the police Station Chandpur, District Alirajpur Sub Inspector after completing the necessary formalities reached the spot (field) alongwith the his team. In the field they found the appellant present where alongwith the cotton plants, they also found the appellant cultivating 240 cannabis plants. Accordingly the case has been registered against the applicant.

3. During the course of arguments, learned counsel for the appellant has not pressed the appeal regarding the conviction and Signature Not VerifiedDigitally signed by SAN REENA JOSEPH Date: 2021.12.17 18:16:49 IST

only pressed the appeal regarding the sentence.

4. Learned counsel for the appellant submits that the substantial sentence imposed upon the appellant for offence under Section 8 r/w Section 20(A) of the Act for 10 years R.I. has already been undergone by the appellant. But as the fine of Rs.1 lac was imposed and in default of payment of fine, the trial court ordered the appellant to undergo R.I. for 2 years and 6 months and as the appellant is in jail, he could not pay the amount of fine. Since the Court has no right to order substantive sentence in default of payment of fine, the order passed by the trial Court imposing sentence and action of the authorities in keeping the appellant in jail are illegal and unlawful and the appellant is entitled to be set at liberty forthwith. Alternatively, it is submitted by the learned counsel that the appellant is a poor person belonging to Scheduled Tribe. It was his first offence. He has his family and if it is held by this Court that imprisonment can be ordered in default of payment of fine, as held by the trial Court, on the facts and circumstances of the case, that part of the order may be set aside and liberal view may be taken directing release of the appellant.

5. Learned counsel for the State on the other hand supports the impugned judgment of conviction and sentence. He also submitted that even in the absence of express provision to suffer imprisonment in default of payment of fine, the Court must be conceded with the said power and it cannot be objected to. He further submits that the provisions of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') makes it clear that a Court of law can award imprisonment in default of payment of fine upto one fourth of the term of imprisonment, which a Court is competent to inflict as punishment for the offence. As Signature Not VerifiedDigitally signed by SAN REENA JOSEPH Date: 2021.12.17 18:16:49 IST

under Section 20 of the Act (contravention in relation to Cannabis Plant) a competent Court can order R.I. on an offender for a term which may extend to 20 years imprisonment in default of payment of fine could be order upto five years. The trial Court, however, taking liberal view imposed sentence in default of payment of fine of 2 years and 6 months which could not be said to be unlawful or otherwise illegal. Hence, prays that the appeal deserves to be dismissed, as no case has been made out by the appellant.

6. So far as the conviction recorded by the trial Court is concerned, no infirmity has been pointed out by the learned counsel so as to come to the conclusion that finding of guilt recorded by the trial Court can be held wrong or illegal. The trial Court considered the depositions on oath of the prosecution witnesses and held that it was proved beyond reasonable doubt. The accused/appellant was cultivating 240 cannabis plants which was seized from the appellant's field. The learned trial Court has also held that all the procedural requirements had been complied with. However, taking into account all the facts, in my opinion, the trial Court was right by holding the appellant guilty and not committed an error of law.

7. As regard sentence, the appellant was cultivating 240 cannabis plants and his case was covered by Section 20 of the Act. The minimum sentence prescribed thereunder is R.I for 10 years which has been imposed by the trial Court which is clearly in consonance with law. Hence, even that part of the order suffers from no infirmity and must be upheld.

8. Learned counsel for the appellant has submitted that the appellant has already undergone the substantive sentence of 10 years. The appellant was also ordered to pay minimum fine of Rs.1 lac as required by Section 20 of the Act and in default, he Signature Not VerifiedDigitally signed by SAN REENA JOSEPH Date: 2021.12.17 18:16:49 IST

was ordered to undergo R.I. For 2 years and 6 months. Admittedly the said period is not over.

9. In the case of Shanti Lal Vs. State of M.P. reported in (2007) 11 SCC 243 it has been observed as under:-

"20. But more important issue is whether the above statutory provisions would apply to special laws and offences committed by a person not covered by IPC. In the present case, we are concerned with the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 which is a special law. There is no express power in a Court to order imprisonment in default of payment of fine. But to us, the law is well-settled and it has been held since more than a century that such an order can be passed by a competent Court of law having power to impose fine as one of the punishments.

22. Benson, J. observed that the question was whether the award of a weeks imprisonment in default of payment of fine was legal. His Lordship considered the relevant provisions of IPC and stated;

The question is whether the award of a weeks imprisonment in default of payment of the fine is legal, or whether the term of imprisonment in default is limited by Sectino 65, Indian Penal Code, to one-fourth of the term (eight days) of imprisonment awardable for the offence under Section 3 of Act III of 1889, i.e., to two days in the present case. Section 67, Indian Penal Code, has obviously no application to the case. It refers solely to the cases in which the offence is punishable with fine only. The present case is punishable with imprisonment or with fine at the option of the Magistrate, though not with both. Section 65, Indian Penal Code, however, in my opinion, is applicable to such a sentence. The words punishable with imprisonment as well as finein that Section must be understood in the same sense as those words bear in Section 64. The Signature Not VerifiedDigitally signed by wording of Section 64, it must be admitted, is not SAN REENA JOSEPH Date: 2021.12.17 18:16:49 IST

happy, but I am of opinion that the Legislature intended by it to provide for the award of imprisonment in default of payment of fine in all cases in which fine can be imposed. Those cases the section divides into three classes, viz., offences (1) punishable with imprisonment as well as fine, (2) punishable with imprisonment and fine and (3) punishable with fine only. The first of these classes in my opinion includes two classes, viz., (a) offences like the present punishable with imprisonment or fine in the alternative, and (b) offences punishable, as most of those under the Indian Penal Code are, with imprisonment, or fine, or both, cumulatively. Grammatically it would seem also to include the second class, viz., offences punishable with imprisonment and fine, but this class is separately mentioned, probably because reference was intended to cases in which a substantive sentence of imprisonment must be awarded, the fine, if any, being only in addition thereto. The Legislature, by Section 64, having given the general power to impose imprisonment in default of payment of fine, then proceeded to lay down limits to that power. Section 65 limited the power in the first class of cases, Section 67 in the third class. If the second class is, as I think it is, included in the first, then Section 65 applies to it also; but, in any case, Section 33, Criminal Procedure Code, imposes the same limit in unmistakable terms. It seems to me unreasonable to suppose that the Legislature did not intend to include cases like the present in the first class since the result would be that, in such cases alone, there would be no limit save that of the general power of a Magistrate, and a first-class Magistrate in a case like the present could award two years rigorous imprisonment in default of payment of a petty fine, though in all other classes of cases his power is strictly limited. (emphasis supplied)

26. Though Section 25 of the General Clauses Act, 1897 was not referred to in Bashiruddin Ashraf, in our opinion, bare reading of the said provision also makes it explicitly clear and leaves Signature Not VerifiedDigitally signed by SAN REENA JOSEPH Date: 2021.12.17 18:16:49 IST

no room for doubt that Sections 63 to 70, IPC and the provisions of CrPC relating to award of imprisonment in default of payment of fine would apply to all cases wherein fines have been imposed on an offender unless the Act, Regulation, Rule or Bye-law contains an express provision to the contrary. We are, therefore, unable to uphold the bald contention of the appellant that in absence of specific provision to order imprisonment in default of payment of fine in a statute, a Court of law has no power to order imprisonment of an offender who fails to pay fine and such action would be illegal or without authority of law. In our judgment, in absence of a provision to the contrary, viz. that no order of imprisonment can be passed in default of payment of fine, such power is explicit and can always be exercised by a Court subject to the relevant provisions of IPC and CrPC."

10. Learned counsel for the appellant submits that 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 keep 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 of fine.

11. It is true that the present case is under the NDPS Signature Not VerifiedDigitally signed by SAN REENA JOSEPH Date: 2021.12.17 18:16:49 IST

Act. Section 20 of the Act provides penalty for certain offences in relation to cannabis and cannabis plant. Minimum fine contemplated by the said provision is rupees one lakh [fine which shall not be less than one lac 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 impossible on the appellant is twenty years.

12. The learned counsel for the State is right in submitting that clause (b) of sub-section (1) of Section 30 of Cr.P.C. authorizes the Court to award imprisonment in default of payment of fine up to one-fourth term of imprisonment which the Court is competent to inflict as punishment for the offence.

13. But considering the circumstances placed before this Court on behalf of the appellant-accused that he is very poor person; 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 lac) 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, this Court is of the view that though an amount of payment of fine of rupees one lac, which is minimum as specified in Section 20 of the Act cannot be reduced, in view of the legislative mandate, ends of justice would be met if that part of the direction is retained, but it is ordered that in default of payment of fine of rupees one lac, the appellant shall undergo rigorous imprisonment for one year instead of 2 years and 6 months, as ordered by the trial court.

For the reasons aforesaid, the appeal is partly allowed, Signature Not VerifiedDigitally signed by SAN conviction recorded and sentence imposed on the appellant to REENA JOSEPH Date: 2021.12.17 18:16:49 IST

undergo rigorous imprisonment for ten years is confirmed. An order of payment of fine of rupees one lac is also upheld. But the order that in default of payment of fine, the appellant shall undergo rigorous imprisonment for 2 years 6 months is reduced to rigorous imprisonment for one year. To that extent, the appeal filed by the appellant is allowed. If the appellant has undergone substantive sentence of rigorous imprisonment for ten years, as also rigorous imprisonment for one year, as modified, 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 hereinabove is over.

The appeal is accordingly disposed of.

C.C. as per rules.

(RAJENDRA KUMAR (VERMA) JUDGE

RJ/

Signature Not Verified VerifiedDigitally Digitally signed by SAN REENA JOSEPH Date: 2021.12.17 18:16:49 IST