TaxTMI 
TaxTMI 
2007 (10) TMI 554
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....h an informant that one Shantilal (appellant herein) resident of village Kankariya Talai was carrying narcotic drug and was expected to have come from the said village. He was to carry illegal opium to Beju (Rajasthan). The information was recorded by the Officer in Rojnamcha No. 997. The Rojnamcha was then sent for information to S.D.O.P., Jawad in accordance with Sectin 42 of the Act. ASI Gopal Singh (PW7) proceeded with the police party along with panch-witnesses Modi Ram (PW4) and Abdul Tazim (PW8) in a jeep. They were divided in two groups and hid themselves. At about 7.00 a.m., the appellant was seen taking out a bag used to carry fertilizer from a heap of grain from a field. When he was coming out of Bara with the bag in his hand, he was intercepted by ASI Gopal Singh and caught with the assistance of police party. Gopal Singh told the accused that it was suspected that he was carrying contraband material and he had right to get search made by a Gazetted Officer or by a Magistrate or by the witness himself i.e. Gopal Singh. The appellant, however, opted his search by ASI Gopal Singh himself. Accordingly, search was conducted. From the person of the appellant accused, nothing....
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....s passed by both the courts by filing the present appeal. This Court on January 31, 2007 passed the following order; Delay condoned. The Trial Court passed the judgment and order dated 2.11.1997 convicting and sentencing the accused under sections 8 and 18 of the NDPS Act of rigorous imprisonment of 10 years and fine of Rs.1 lakh, and in default, further additional rigorous imprisonment for three years. It is now stated by the learned counsel for the petitioner that the petitioner has undergone the sentence for nine years and six months and that he is not able to pay the amount of fine of Rs.1 lakh. If the amount of fine is not paid, as ordered by the Court, the petitioner has to undergo the rigorous imprisonment of three years. Issue notice to the respondent limited to the question as to whether the sentence on default of payment of fine may be reduced. 9. We have heard the learned counsel for the parties. The learned counsel for the appellant contended that both the courts had committed an error of law in convicting the appellant. From the evidence of the prosecution witnesses, it was not established that the appellant had committed an offence under the Act and hence he is entit....
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....with and prosecution was successful in proving the guilt of the accused. Minimum substantive sentence as also minimum amount of fine (rigorous imprisonment for ten years and payment of fine of rupees one lakh] was imposed on the appellant. Such an order cannot be termed illegal or contrary to law. The counsel submitted that even in 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. The learned counsel contended that the provisions of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC) make it clear that a Court of law can award imprisonment in default of payment of fine up to one fourth of the term of imprisonment which a Court is competent to inflict as punishment for the offence. As under Section 18 of the Act (contravention in relation to opium) a competent Court can order rigorous imprisonment on an offender for a term which may extend to twenty years, imprisonment in default of payment of fine could be ordered up to five years. The trial Court, however, taking liberal view, imposed sentence in default of payment of fine of three years which could not ....
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....s. Admittedly, the said period is not over. 15. Thus, an important and debatable question which arises for our consideration is whether a Court of law can order a convict to remain in jail in default of payment of fine? It is true that Section 18 of the Act does not expressly say so. It merely provides for imposition of sentence as also payment of fine. The said section, as it stood at the relevant time, read thus; 18. Punishment for contravention in relation to opium poppy and opium. Who ever, in contravention of any provision of this Act, or any rule or order made or condition of licence granted thereunder cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter- State or uses opium shall be punishable, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees; Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 16. In our opinion, however, even in absence of specific provi....
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....ceed tile following scale, that is to say, for any term not exceeding two months when the amount of the fine shall not exceed fifty rupees, and for any term not exceeding four months when the amount shall not exceed one hundred rupees, and for any term not exceeding six months in any other case. 68. Imprisonment to terminate on payment of fine The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law. 69. Termination of imprisonment on payment of proportional part of fine If, before the expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate. 70. Fine leviable within six years or during imprisonment-Death not to discharge property from liability The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender be liable to imprisonment for a longer period than six years, t....
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....d 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. 21. In Queen-Empress v. Yakoob Sahib, ILR (1899) 22 Mad 238, the accused was convicted for an offence under Section 3(10) of the Towns Nuisances Act (Madras), 1889 (Act III of 1889) and was ordered to pay a fine of rupees eight and in default of payment, to undergo simple imprisonment for one week. The relevant provision of law empowered the Court to award fine not exceeding Rs. 50 or imprisonment of either description not exceeding eight days. 22. Benson, J. observed that the question was whether the award of a week s 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 week s imprisonment in default of payment of the fine is legal, or whether the term of imprisonment in default is limited by Section 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 o....
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....trictly limited . (emphasis supplied) 23. In Sukhdeo Singh v. Calcutta Corporation, AIR 1953 Cal 41, A was convicted by the Municipal Magistrate for keeping a buffalo within the municipal limit without the prior permission of the Municipal Board. He was, therefore fined Rs. 15 and in default, to suffer simple imprisonment for one week. It was contended by A that in lieu of fine, the Magistrate could not have passed an order of sentence of imprisonment as no such power had been given to him under the Calcutta Municipal Act, 1923 [Act III of 1923]. The Court, however, after considering Sections 40, 41, 42 and 64 to 67, IPC came to the conclusion that the learned Magistrate could order sentence of imprisonment in lieu of fine by virtue of the said provisions. 24. A similar question came up for consideration before this Court before fifty years in Bashiruddin Ashraf v. State of Bihar, 1957 SCR 1032. There a mutawalli was charged for violating the provision of Section 58 of the Bihar Wakfs Act, 1947 (Bihar Act VIII of 1948) for not discharging the obligation enjoined upon him as a mutawalli. He was, therefore, convicted under Section 65(1) of the Act by the Divisional Magistrate, Patn....
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....ault 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. 27. 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 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 f....
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....e \005. It appears to us that the punishment of fine is a pecuniary appropriate punishment for all offences to which men are prompted by cupidity; for it is a punishment which operates directly on the very feeling which impels men to such offences. A man who has been guilty of great offences arising from cupidity, of forging a bill of exchange, for example, of keeping a receptacle for stolen goods, or of existence embezzlement, ought, we conceive, to be so fined as to reduce him to poverty. That such a man should, when his imprisonment is over, return to the enjoyment of three-fourths of his property, a property which may be very large and which may have been accumulated by his offences, appears to us highly objectionable. Those persons who are most likely to commit such offences would often be less deterred by knowing that the offender had passed several years in imprisonment, than encouraged by seeing him, after his liberation, enjoying the far larger part of his wealth . [see Ratanlal & Dhirajlal, Law of Crimes ; 26th Edn.; (2007); pp.221-22] 29. The Authors further stated; The next question which it became our duty to consider was this : when a fine has been imposed, what meas....
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....f his love of personal liberty for the purpose of restraining him from crime. To look out systematically for the most sensitive part of a man s mind, in order that we may not direct our penal sanctions towards that part of his mind, seems an injudicious policy. We are far from thinking that the course which we propose is unexceptionable; but it appears to us to be less open to exception that any other which has occurred to us. We propose that, at the time of imposing a fine, the Court shall also fix a certain term of imprisonment which the offender shall undergo in default of payment. In fixing this term, the Court will in no case be suffered to exceed a certain maximum, which will very according to the nature of the offence. If the offence be one which is punishable with imprisonment as well as fine, the term of imprisonment in default of payment will not exceed one-fourth of the longest term of imprisonment fixed by the Code for the offence. If the offence be one which by the Code is punishable only with fine, the term of imprisonment for default of payment will in no case exceed seven days [See Ratanlal & Dhirajlal; supra; pp.226-27] 30. The issue also came up for consideratio....
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....on of the propriety of fine. 34. The Court considered the provisions of IPC as also CrPC and observed that Courts have power to impose a sentence of fine and if fine is imposed on an offender, it cannot be challenged as contrary to law. 35. Speaking for the Court, Chandrachud, J. (as His Lordship then was) said; But legitimacy is not to be confused with propriety and the fact that the Court possesses a certain power does not mean that it must always exercise it. Though, therefore, the High Court had the power to impose on the appellant a sentence of fine along with the sentence of life imprisonment the question still arises whether a sentence of fine of Rs. 20,000/- is justified in the circumstances of the case. Economic offences are generally visited with heavy fines because an offender who has enriched himself unconsciously or unjustifiably by violating economic laws can be assumed legitimately to possess the means to pay that fine. He must disgorge his ill gotten wealth. But wrote different considerations would, in the generality of cases, apply to matters of the present kind. Though there is power to combine a sentence of death with a sentence of fine that power is sparingly ....