{"id":255420,"date":"2010-07-28T00:00:00","date_gmt":"2010-07-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/yusuf-ali-vs-state-of-u-p-on-28-july-2010"},"modified":"2015-11-29T04:30:36","modified_gmt":"2015-11-28T23:00:36","slug":"yusuf-ali-vs-state-of-u-p-on-28-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/yusuf-ali-vs-state-of-u-p-on-28-july-2010","title":{"rendered":"Yusuf Ali vs State Of U.P. on 28 July, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Yusuf Ali vs State Of U.P. on 28 July, 2010<\/div>\n
Court No. - 5\n\nCase :- CRIMINAL APPEAL No. - 1550 of 2009\n\nPetitioner :- Yusuf Ali\nRespondent :- State Of U.P.\nPetitioner Counsel :- In Person\nRespondent Counsel :- Govt.Advocate\n\nHon'ble Vedpal,J.\n<\/pre>\n
Reserved
\n                Criminal Appeal No. 1550 of 2009<\/p>\n
Yusuf Ali ………………….Appellant
\n                                    Vs.\n<\/p>\n
State of U.P. ……………. Opposite Party<\/p>\n
Hon’ble Vedpal,J.\n<\/p>\n
The appellant Yusuf Ali has filed this appeal from jail against
\nthe judgment and order dated 13.5.2009 passed by Sri Ram
\nKaran H.J.S., the then Additional Sessions Judge\/Fast Tract
\nCourt No.2, Bahraich in Special Trial No.14-A\/97 State Vs.
\nYusuf Ali under Section 8<\/a>\/20<\/a> Narcotic Drugs and
\nPsychotropic Substances Act<\/a> (hereinafter referred to as the
\n‘Act’) Police Station-Sujauli, District- Bahraich whereby
\nappellant was convicted for the offence punishable under
\nSection 8<\/a>\/20<\/a> of the Act and was sentenced to undergo
\nrigorous imprisonment for a period of eleven years and two
\nmonths and to pay a fine of rupees one lac and twenty five
\nthousand and in default of payment of fine to further undergo
\nimprisonment for a period of two years and nine months.
\nThe prosecution version, as is revealing from the record, is
\nthat on 1.1.1997 when a police party consisting of Sub-
\nInspector Devi Din Singh, Constable Lal Bahadur, Constable
\n Ram Dheeraj Verma, Constable Mukhatar Ahmad and
\nConstable Rajendra Nath Tiwari was on patrolling duty and
\nreached near railway line Tigra crossing, the police
\npersonnels noticed that some persons are coming towards
\nthem on which police party hide themselves behind the bush.
\nAfter some time, two persons came there who were
\napprehended by the police and when their names and
\naddresses were inquired into, one of them told his name
\nJakhir Husain while the other Yusuf Ali. Both of them had a
\nbag in their hand and when they were inquired as to why they
\nwere here in the dark night, they told that they have brought
\ncharas from Nepal and on being asked for taking search in the
\npresence of Gazetted Officer, both of them forego it and
\nstated that when we have been arrested, you yourself may
\ntake our search. On the search being being made, 3 kgs of
\ncharas was recovered from the bag of Jakhir Husain and on
\nthe search of bag of Yusuf Ali, about one and half Kgs. of
\ncharas was recovered. When the licence of the charas was
\ndemanded from both the accused persons, they could not
\nshow any licence. A formal arrest of both accused was made
\nand recovery memo at about 9:45 p.m. was prepared by the
\npolice and after being signed it by the police as well as by the
\naccused persons, the police returned to police station along
\nwith arrested persons and the recovered article, where on the
\nbasis of arrest and recovery memo, a case for the offence
\npunishable under Section 8<\/a>\/22<\/a> of the Narcotic Drugs
\nPsychotropic Substances Act was registered against accused
\nJakhir Husain and Yusuf Ali. The investigation of the case
\n was entrusted to Sri Kayam Singh. During the investigation,
\nthe Investigating Officer recorded statement of the witnesses,
\nprepared a site plan of the place of incident. A sample of
\nrecovered article was sent for chemical examination which
\nwas found charas. After completing all the formalities of the
\ninvestigation, the Investigating Officer submitted separate
\ncharge sheet against accused persons. After submission of the
\ncharge sheet when the case was pending in the trial court,
\naccused Zakhir Husain absented himself, so the case of Yusuf
\nAli was separated.\n<\/p>\n
Accused Yusuf Ali (appellant herein) was charged by the
\nlearned trial court for having committed an offence
\npunishable under Section 8<\/a>\/20<\/a> of the Narcotic Drugs and
\nPsychotropic Substances Act<\/a>. Accused pleaded not guilty to
\nthe charges and claimed to be tried.\n<\/p>\n
The prosecution in order to prove its case against accused,
\nexamined three witnesses in all besides documentary
\nevidence. PW-1 Ram Dheeraj and P.W.-2 Sub-Inspector Devi
\nDin Singh are the witness of facts while P.W.-3 Devi Baksh
\nSing was a formal witness who was available at the relevant
\ntime and who had prepared the chik report and had made an
\nentry in the G.D. of registration of the case and all other
\nimportant events concerning to the case.\n<\/p>\n
The accused in his statement under section 313<\/a> Cr.P.C.
\ndenied the prosecution allegations and stated that he has been
\nfalsely implicated in the case on account of enmity and the
\nalleged recovery was not made from his possession. Accused
\ndid not adduce any evidence in his defence.\n<\/p>\n
 Learned trial court relying on the prosecution evidence
\nreached to the conclusion that charge stands proved against
\naccused beyond all reasonable doubt and accordingly he
\nconvicted and sentenced the accused as stated above.
\nFeeling aggrieved with the said judgment and order, the
\nappellant has preferred this appeal.\n<\/p>\n
I have heard Ms. Trishita Singh learned Amicus Curiae for
\nthe accused as well as learned AGA for the State and perused
\nthe record of the case.\n<\/p>\n
Learned Amicus Curiae appearing for the appellant has not
\nchallenged the merit of the conviction and sentence recorded
\nagainst appellant by the court below.\n<\/p>\n
He submitted that the appellant is a poor person and has no
\ncriminal antecedent and he has already undergone the
\nsubstantive period of sentence of imprisonment awarded to
\nhim and even then he is in jail, because he is not in a position
\nto pay the amount of fine imposed on him and he is serving
\nsentence awarded to him in default of payment of fine and the
\nsentence awarded in default of payment of fine is excessive
\nand it should be reduced in the facts and circumstances of the
\npresent case. In support of his contention he relied on Shanti
\nLal Vs. State of M. P. reported in 2008 (60) ACC 34.
\nLearned AGA contended that the appellant was also awarded
\nsentence to pay a fine of rupees one lac and twenty five
\nthousand and in default of payment of fine he was sentenced
\nto undergo further imprisonment for a period of two years
\nand nine months which appears appropriate and should not be
\nreduced. He further contended that even on the merit, the
\n appellant has no leg to stand and his appeal on merit of
\nconviction has rightly been not pressed.\n<\/p>\n
I have carefully considered the respective submissions made
\nby the parties. It reveals from the perusal of the record that
\ntwo witnesses of facts testified by the prosecution in support
\nof this case. Both of them have supported the prosecution
\nversion. They have corroborated the statement of each other.
\nThey were put to cross examination but nothing material
\ncould be elicited from their cross examination, which may be
\nof any help to the accused. Thus the learned Amicus Curiae
\nrightly has not pressed this appeal on merit of the conviction.
\nNow the question that arises for consideration is as to
\nwhether the sentence awarded to the appellant in default of
\npayment of fine can be reduced.\n<\/p>\n
It has been argued on behalf of the appellant that the
\nappellant is a very poor person. He is not in a position even to
\nengage another counsel and had there been any money with
\nthe appellant, he would certainly have made payment or
\nwould engage another private counsel but he has not done so.
\nLearned amicus curiae further contended that Hon’ble
\nSupreme Court in case of Shanti Lal (supra) had reduced the
\nterm of imprisonment that was awarded in default of payment
\nof fine and as such in the present case sentence awarded in
\ndefault of payment of fine should also be reduced.
\nI have carefully considered this aspect of the matter. It reveals
\nfrom the perusal of the ruling cited by the learned Amicus
\nCuriae that Hon’ble Supreme Court in case of Shanti Lal
\n(supra) has held as follow:\n<\/p>\n
                      “The next submission of the learned counsel for the<\/p>\n
                     appellant, however, has substance. The term of imprisonment
\n                     in default of payment of fine is not a sentence. It is a penalty
\n                     which a person incurs on account of non-payment of fine.
\n                     The sentence is something which an offender must undergo
\n                     unless it is set aside or remitted in part or in whole either in
\n                     appeal or in revision or in other appropriate judicial
\n                     proceedings or “otherwise”. A term of imprisonment ordered
\n                     in default of payment of fine stands on a different footing. A
\n                     person is required to undergo imprisonment either because
\n                     he is unable to pay the amount of fine or refuses to pay such
\n                     amount. He, therefore, can always avoid to undergo
\n                     imprisonment in default of payment of fine by paying such
\n                     amount. It is, therefore, not only the power, but the duty of
\n                     the court to keep in view the nature of offence, circumstances
\n                     under which it was committed, the position of the offender
\n                     and other relevant considerations before ordering the
\n                     offender to suffer imprisonment in default of payment of
\n                     fine.?\n<\/p><\/blockquote>\n
                     Hon’ble Supreme Court in this case further held as follows:\n<\/p><\/blockquote>\n
“We are mindful and conscious that the present case is under the NDPS Act<\/a>.\n<\/p>\n
Section 18<\/a> quoted above provides penalty for certain offences in relation to opium
\npoppy and opium. Minimum fine contemplated by the said provision is rupees one
\nlakh [” fine which shall not be less than one lakh rupees”]. It is also true that the
\nappellant has been ordered to undergo substantive sentence of rigorous
\nimprisonment for ten years which is minimum. It is equally true that maximum
\nsentence imposable on the appellant is twenty years. The learned counsel for the
\nState again is right in submitting that clause (b) of sub-section (1) of Section 30<\/a>,
\n Cr.P.C<\/a>. authorizes the Court to award imprisonment in default of payment of fine
\nup to one-fourth term of imprisonment which the Court is competent to inflict as
\npunishment for the offence. But considering the circumstances placed before us on
\nbehalf of the appellant-accused that he is very poor; he is merely a carrier; he has
\nto maintain his family; it was his first offence; because of his poverty, he could not
\npay the heavy amount of fine (rupees one lakh) and if he is ordered to remain in
\njail even after the period of substantive sentence is over only because of his
\ninability to pay fine, serious prejudice will be caused not only to him, but also to
\nhis family members who are innocent. We are, therefore, of the view that though
\nan amount of payment of fine of rupees one lakh which is minimum as specified in
\nSection 18<\/a> of the Act cannot be reduced in view of the legislative mandate, ends of
\njustice would be met if we retain, that part of the direction, but order that in
\ndefault of payment of fine of rupees one lakh, the appellant shall undergo rigorous
\nimprisonment for six months instead of three years as ordered by the trial court
\nand confirmed by the High Court.”\n<\/p>\n
                     It reveals from the perusal of the above case law that term of
\n                     imprisonment in default of payment of fine is not a sentence
\n                     but a penalty which an accused incur on account of non
\n                     payment of fine. It is true that the appellant was not found
\n                     able to engage counsel of his choice in the court and initially
\n                     he has preferred this appeal from jail and later on learned
\n                     Amicus Curiae was appointed. There is nothing on record
\n                     that the appellant had criminal antecedent. This incident
\n                     pertains to the year 1997 about 13 years back. Since then
\n                     accused is in jail. Awarding imprisonment in default of
\n                     payment of fine is a mode for realization of the amount of
\n                     fine. Furthermore, Section 421<\/a> Cr.P.C. provides that if an
\n accused has undergone sentence in default of payment of fine
\neven then his liability to pay the fine does not come to an end.\n<\/p><\/blockquote>\n
The accused has already undergone substantive imprisonment
\nawarded to him and his undergoing imprisonment in default
\nof payment of fine. If there exists special reasons to be
\nrecorded for the trial court, the amount of fine may be
\nreleased from accused even after undergoing imprisonment in
\ndefault of payment of fine.\n<\/p>\n
In these circumstances keeping in view the principal of law
\nlaid down by Hon’ble Supreme Court in case Shanti Lal
\n(supra), I am of the opinion that if imprisonment in default of
\npayment of fine is reduced, it will serve the ends of justice.
\nSince the accused has undergone imprisonment in default of
\npayment of fine in part, it appears appropriate to reduce
\nimprisonment in default of payment of fine to one year and
\nfour months. The appeal is, therefore, liable to be party
\nallowed.\n<\/p>\n
In view of the above, the appeal is party allowed. The
\nconviction recorded and the sentence imposed on the
\nappellant to undergo rigorous imprisonment for a period of
\neleven years and two months and to pay a fine of rupees one
\nlac and twenty five thousand, is hereby confirmed but the
\norder in default of payment of fine to undergo imprisonment
\nis modified to this extent that in default of payment of fine
\nthe accused appellant shall undergo imprisonment for a
\nperiod of one year and four months only. If there remains any
\nother period of the said imprisonment in default of payment
\nof fine, the accused shall undergo it and if he has completed
\n one year and four months’ imprisonment in default of
\npayment of fine and he is not wanted in any other case, he
\nshall be released forthwith.\n<\/p>\n
Inform the court below, accordingly.\n<\/p>\n
28 .7.2010
\nMahesh
\nLet the copy of this judgment and order be sent to the learned
\ntrial court for necessary action along with the record of the
\ncase.\n<\/p>\n
Order Date :- 28.7.2010
\nMahesh\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Yusuf Ali vs State Of U.P. on 28 July, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-255420","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nYusuf Ali vs State Of U.P. on 28 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/yusuf-ali-vs-state-of-u-p-on-28-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Yusuf Ali vs State Of U.P. on 28 July, 2010 - 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