JUDGMENT
Sham Sunder, J.
1. This appeal is directed against the order dated 2.5.2007 rendered by the Special Judge, Fatehgarh Sahib, vide which a penalty of Rs. 40,000/- was imposed upon the surety-appellant and recovery warrant was ordered to be issued.
2. Harbhajan Singh, appellant, stood surety for Tejpal accused in case FIR No. 81 dated 19-7-2004, under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985, Police Station Bassi Pathana, undertaking to produce him, in the Court, on each and every date of hearing, failing which to pay Rs. 40,000/- the amount of forfeited surety bond.
3. The accused absented from the trial, and was declared proclaimed offender, vide order dated 1.11.2006. Notice to the surety was issued to show cause, as to why the amount of forfeited surety bond be not recovered from him. The appellant-surety was duly served, but he did not put in appearance in the Court. Ultimately, vide order dated 2.5.2007 the Special Judge, Fatehgarh Sahib, imposed a penalty of Rs. 40,000/- upon him, and recovery warrant was ordered to be issued.
4. Feeling aggrieved, the instant appeal, was filed by the appellant/surety.
5. None appeared on behalf of the appellant today, as also on the last date of hearing. Under these circumstances, no alternative was left with this Court, except to hear Counsel for the respondent and decide this appeal.
6. I have heard learned Counsel for the respondent, and have gone through the record.
7. It is evident, from the record, that the appellant stood surety for Tejpal accused in case FIR No. 81 dated 19.7.2004, under Section 18 of the Narcotic Drugs & Psychoropic Substances Act. 1985 registered at Police Station Bassi Pathana, undertaking to produce him in the Court, on each and every date of hearing, failing which to pay Rs. 40,000/-, the amount of forfeited surety bond. When the trial was going on, the accused absented and was ultimately, declared proclaimed offender, vide order dated 1.11.2006. Ultimately, a penalty of Rs. 40,000/-, was imposed upon the surety-appellant. In the grounds of appeal, a prayer for reduction of the amount of penalty was made on the plea that the appellant is 70 years old person, and infirm and, as such, penalty in the sum of Rs. 40,000/-, imposed upon him, is harsh, and be reduced. No doubt, the accused was declared proclaimed offender, yet it is to be seen, as to whether, the appellant-surety connived with him, or hatched a conspiracy with him, so as to facilitate his escape, from the trial of the case. It is also to be seen, whether the appellant, had any scent before the accused actually absconded that he was going to escape. There is nothing, on record, that he conveyed with accused to facilitate his escape. In my opinion, the trial Court was wrong, in imposing such a harsh penalty, upon the appellant. The trial Court was required to consider the old age of the appellant and the factum that he is infirm, as also the efforts made by him, to search the accused. The penalty imposed upon the surety, should always be commensurate with the mistake committed by him. It should not be excessive. In Mohammed Kunju v. State of Karrtataka 1999(4) R.C.R. (Criminal) 726 (S.C.), the accused fled from India and went to foreign country. The Apex Court held that there was nothing against the surety, that he had any remote scent, that the accused was preparing to escape from India, nor he had connived with the accused, who jumped the bail. Under these circumstances, the Apex Court reduced the penalty to a sum of Rs. 5,000/-, from the amount of Rs. 50,000/-, which was imposed on the surety by the trial Court. In Madhu Limaye v. Metropolitan Magistrate 1984 (Supplementary) Supreme Court Cases 699, a three Judge Bench of the Apex Court, reduced the penalty to a nominal sum of Rs. 100/-, in a case, in which the accused, some foreign nationals, escaped from India, and were never arrested. Keeping in view the observations, made in both these authorities, in my opinion, reduction in amount of penalty, in the instant case, is also warranted. The penalty deserves to be reduced to Rs. 20,000/- from Rs. 40,000/-.
8. For the reasons recorded above, the appeal is partly accepted. The order dated 2.5.2007 passed by the trial Court, is modified to the extent, that the penalty of Rs. 40,000/- imposed upon the appellant/surety, is reduced to Rs. 20,000/-. The Chief Judicial Magistrate, Fatehgarh Sahib, is directed to comply with the order.