Court No. - 5 Case :- CRIMINAL APPEAL No. - 1550 of 2009 Petitioner :- Yusuf Ali Respondent :- State Of U.P. Petitioner Counsel :- In Person Respondent Counsel :- Govt.Advocate Hon'ble Vedpal,J.
Reserved
Criminal Appeal No. 1550 of 2009
Yusuf Ali ………………….Appellant
Vs.
State of U.P. ……………. Opposite Party
Hon’ble Vedpal,J.
The appellant Yusuf Ali has filed this appeal from jail against
the judgment and order dated 13.5.2009 passed by Sri Ram
Karan H.J.S., the then Additional Sessions Judge/Fast Tract
Court No.2, Bahraich in Special Trial No.14-A/97 State Vs.
Yusuf Ali under Section 8/20 Narcotic Drugs and
Psychotropic Substances Act (hereinafter referred to as the
‘Act’) Police Station-Sujauli, District- Bahraich whereby
appellant was convicted for the offence punishable under
Section 8/20 of the Act and was sentenced to undergo
rigorous imprisonment for a period of eleven years and two
months and to pay a fine of rupees one lac and twenty five
thousand and in default of payment of fine to further undergo
imprisonment for a period of two years and nine months.
The prosecution version, as is revealing from the record, is
that on 1.1.1997 when a police party consisting of Sub-
Inspector Devi Din Singh, Constable Lal Bahadur, Constable
Ram Dheeraj Verma, Constable Mukhatar Ahmad and
Constable Rajendra Nath Tiwari was on patrolling duty and
reached near railway line Tigra crossing, the police
personnels noticed that some persons are coming towards
them on which police party hide themselves behind the bush.
After some time, two persons came there who were
apprehended by the police and when their names and
addresses were inquired into, one of them told his name
Jakhir Husain while the other Yusuf Ali. Both of them had a
bag in their hand and when they were inquired as to why they
were here in the dark night, they told that they have brought
charas from Nepal and on being asked for taking search in the
presence of Gazetted Officer, both of them forego it and
stated that when we have been arrested, you yourself may
take our search. On the search being being made, 3 kgs of
charas was recovered from the bag of Jakhir Husain and on
the search of bag of Yusuf Ali, about one and half Kgs. of
charas was recovered. When the licence of the charas was
demanded from both the accused persons, they could not
show any licence. A formal arrest of both accused was made
and recovery memo at about 9:45 p.m. was prepared by the
police and after being signed it by the police as well as by the
accused persons, the police returned to police station along
with arrested persons and the recovered article, where on the
basis of arrest and recovery memo, a case for the offence
punishable under Section 8/22 of the Narcotic Drugs
Psychotropic Substances Act was registered against accused
Jakhir Husain and Yusuf Ali. The investigation of the case
was entrusted to Sri Kayam Singh. During the investigation,
the Investigating Officer recorded statement of the witnesses,
prepared a site plan of the place of incident. A sample of
recovered article was sent for chemical examination which
was found charas. After completing all the formalities of the
investigation, the Investigating Officer submitted separate
charge sheet against accused persons. After submission of the
charge sheet when the case was pending in the trial court,
accused Zakhir Husain absented himself, so the case of Yusuf
Ali was separated.
Accused Yusuf Ali (appellant herein) was charged by the
learned trial court for having committed an offence
punishable under Section 8/20 of the Narcotic Drugs and
Psychotropic Substances Act. Accused pleaded not guilty to
the charges and claimed to be tried.
The prosecution in order to prove its case against accused,
examined three witnesses in all besides documentary
evidence. PW-1 Ram Dheeraj and P.W.-2 Sub-Inspector Devi
Din Singh are the witness of facts while P.W.-3 Devi Baksh
Sing was a formal witness who was available at the relevant
time and who had prepared the chik report and had made an
entry in the G.D. of registration of the case and all other
important events concerning to the case.
The accused in his statement under section 313 Cr.P.C.
denied the prosecution allegations and stated that he has been
falsely implicated in the case on account of enmity and the
alleged recovery was not made from his possession. Accused
did not adduce any evidence in his defence.
Learned trial court relying on the prosecution evidence
reached to the conclusion that charge stands proved against
accused beyond all reasonable doubt and accordingly he
convicted and sentenced the accused as stated above.
Feeling aggrieved with the said judgment and order, the
appellant has preferred this appeal.
I have heard Ms. Trishita Singh learned Amicus Curiae for
the accused as well as learned AGA for the State and perused
the record of the case.
Learned Amicus Curiae appearing for the appellant has not
challenged the merit of the conviction and sentence recorded
against appellant by the court below.
He submitted that the appellant is a poor person and has no
criminal antecedent and he has already undergone the
substantive period of sentence of imprisonment awarded to
him and even then he is in jail, because he is not in a position
to pay the amount of fine imposed on him and he is serving
sentence awarded to him in default of payment of fine and the
sentence awarded in default of payment of fine is excessive
and it should be reduced in the facts and circumstances of the
present case. In support of his contention he relied on Shanti
Lal Vs. State of M. P. reported in 2008 (60) ACC 34.
Learned AGA contended that the appellant was also awarded
sentence to pay a fine of rupees one lac and twenty five
thousand and in default of payment of fine he was sentenced
to undergo further imprisonment for a period of two years
and nine months which appears appropriate and should not be
reduced. He further contended that even on the merit, the
appellant has no leg to stand and his appeal on merit of
conviction has rightly been not pressed.
I have carefully considered the respective submissions made
by the parties. It reveals from the perusal of the record that
two witnesses of facts testified by the prosecution in support
of this case. Both of them have supported the prosecution
version. They have corroborated the statement of each other.
They were put to cross examination but nothing material
could be elicited from their cross examination, which may be
of any help to the accused. Thus the learned Amicus Curiae
rightly has not pressed this appeal on merit of the conviction.
Now the question that arises for consideration is as to
whether the sentence awarded to the appellant in default of
payment of fine can be reduced.
It has been argued on behalf of the appellant that the
appellant is a very poor person. He is not in a position even to
engage another counsel and had there been any money with
the appellant, he would certainly have made payment or
would engage another private counsel but he has not done so.
Learned amicus curiae further contended that Hon’ble
Supreme Court in case of Shanti Lal (supra) had reduced the
term of imprisonment that was awarded in default of payment
of fine and as such in the present case sentence awarded in
default of payment of fine should also be reduced.
I have carefully considered this aspect of the matter. It reveals
from the perusal of the ruling cited by the learned Amicus
Curiae that Hon’ble Supreme Court in case of Shanti Lal
(supra) has held as follow:
“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
fine.?
Hon’ble Supreme Court in this case further held as follows:
“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 than 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,
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. 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.”
It reveals from the perusal of the above case law that term of
imprisonment in default of payment of fine is not a sentence
but a penalty which an accused incur on account of non
payment of fine. It is true that the appellant was not found
able to engage counsel of his choice in the court and initially
he has preferred this appeal from jail and later on learned
Amicus Curiae was appointed. There is nothing on record
that the appellant had criminal antecedent. This incident
pertains to the year 1997 about 13 years back. Since then
accused is in jail. Awarding imprisonment in default of
payment of fine is a mode for realization of the amount of
fine. Furthermore, Section 421 Cr.P.C. provides that if an
accused has undergone sentence in default of payment of fine
even then his liability to pay the fine does not come to an end.
The accused has already undergone substantive imprisonment
awarded to him and his undergoing imprisonment in default
of payment of fine. If there exists special reasons to be
recorded for the trial court, the amount of fine may be
released from accused even after undergoing imprisonment in
default of payment of fine.
In these circumstances keeping in view the principal of law
laid down by Hon’ble Supreme Court in case Shanti Lal
(supra), I am of the opinion that if imprisonment in default of
payment of fine is reduced, it will serve the ends of justice.
Since the accused has undergone imprisonment in default of
payment of fine in part, it appears appropriate to reduce
imprisonment in default of payment of fine to one year and
four months. The appeal is, therefore, liable to be party
allowed.
In view of the above, the appeal is party allowed. The
conviction recorded and the sentence imposed on the
appellant to undergo rigorous imprisonment for a period of
eleven years and two months and to pay a fine of rupees one
lac and twenty five thousand, is hereby confirmed but the
order in default of payment of fine to undergo imprisonment
is modified to this extent that in default of payment of fine
the accused appellant shall undergo imprisonment for a
period of one year and four months only. If there remains any
other period of the said imprisonment in default of payment
of fine, the accused shall undergo it and if he has completed
one year and four months’ imprisonment in default of
payment of fine and he is not wanted in any other case, he
shall be released forthwith.
Inform the court below, accordingly.
28 .7.2010
Mahesh
Let the copy of this judgment and order be sent to the learned
trial court for necessary action along with the record of the
case.
Order Date :- 28.7.2010
Mahesh