SHANTI LAL v. STATE OF M.P

Citation: [2007] 10 S.C.R. 727

Court: Supreme Court of India

Bench: C.K. THAKKER, ALTAMAS KABIR

Case summary

SHANTI LAL v. STATE OF M.P.pdf

Judgment text

SHANTI LAL V. STATE OF M. P. OCTOBER 8, 2007 [C. K. THAKKERAND ALTAMAS KABIR,JJ. ] - _1_ Narcotic Drugs and Psychotropic Substances Act, 1985: s. 8 r/w s. 18-Punishment for contravention in relation to opium-Accusedcaught carrying contraband opium-Sentence often years RIandfine ofRs. 1 lakh and in default ofpayment offine further RIfor 3 years imposed by trial court and confirmed by High Court- HELD: Both the courts were right in convicting the accused and imposing the substantive sentence of 10 years RI and fine ofRs. 1 lakh-However, considering the facts inter alia that accused was merely 'carrier' and a poor person unable to pay the fine, in default ofpayment offine ofRs. l lakh accused shall undergo RIfor six months instead of3 years as ordered by trial court and confirmed by High Court. s. 18-Power of Court to impose imprisonment in default of payment offine-HELD: Though s.

18 does not expressly provide for an accused to remain injail in default ofpayment offine and under the provisions ofthe Act there is no express power in a court to order imprisonment in default ofpayment offine, in absence ofa provision p to the contrary, viz. , that no order ofimprisonment can be passed in default ofpayment offine, such power is explicit and can always be exercised by a court administering criminal justice-Indian Penal Code, 1860-ss. 63-70-Code ofCriminal Procedure, 1973-s. 30- General Clauses Act, 1897-s. 25-Administration ofCriminal Justice. Criminal Law: Imprisonment in default ofpayment offine-Nature of-HELD: -~ the term of imprisonment in default ofpayment offine is not a sentence-It is a penalty which a person incurs on account ofnonpayment offine-Difference between penalty and sentence- Explained. The appellant was caught carrying in a bag 7 kg. and 60 gms. ofcontraband opium. The trial court convicted him u/s 8 read with s.

18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and sentenced him to rigorous imprisonment for 10 years and to pay a fine ofrupees one lakh. In default ofpayment offine he was ordered to undergo rigorous imprisonment for three years. The High Court having confirmed the conviction and sentence, the appellant flied the instant appeal. Besides challenging the orders ofthe courts below on merits, it was contended for the appellant that there was no provision in the Act to impose sentence in lieu ofpayment offine and, therefore, no substantive sentence could have been imposed on the accused in default of payment of fine. Alternatively, it was pleaded that the appellant having undergone the substantive sentence of 10 years, and being a poor person unable to pay the fine, and merely a 'carrier' ofthe contraband opium not belonging to him, taking a liberal view, the sentence ofimprisonment in default of payment offine may be set aside.

Two questions were raised before the Court: Whether a court oflaw can order a convict to remain in jail in default ofpayment of fine; and whether s. 25 ofthe General Clauses Act, 1897 and s. 30 of the Code of Criminal Procedure would apply to special laws and offences committed by a person not covered by IPC. Disposing ofthe appeal, the Court HELD: 1. 1. So far as the conviction recorded by the trial court and confirmed by the High Court is concerned, the same does not suffer from any infirmity. Both the courts considered the depositions on oath of the prosecution witnesses and held that it was proved beyond reasonable doubt that the appellant-accused was found in SHANTILALv. STATE 729 possession ofcontraband opium weighing 7 kilos 60 grams. Both the Courts have also held that all the procedural requirements had been complied with. The appellant-accused was not possessing on his person contraband opium, but it was recovered from a bag.

Taking into account all the facts, both the courts were right in convicting the accused. [Para 12] [736-C-F] 1. 2. As regards sentence, the appellant was carrying opium (7 kilos and 60 grams) and his case was covered by Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Minimum sentence prescribed thereunder is rigorous imprisonment for ten years which had been imposed by both the Courts below which is clearly in consonance with law. Hence, even that part ofthe order suffers from no infirmity and is upheld. [Para 13] [736-F, G] 2. 1. It cannot be said that in absence of specific provision to order imprisonmentin default ofpayment offine in a statute, a Court oflaw has no power to order imprisonment ofan offender who fails to pay fine and such action would be illegal or without authority of law. In absence ofa 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 ofIPC and Cr PC. [Para 26] (744-A-B] 2. 2. From various provisions oflPC, s. 25 ofthe General Clauses Act, 1897 and s. 30 of the Code' of Criminal Procedure, 1973, it is clear that if a person commits any offence under IPC, he can be punished and when such offence is punishable with substantive sentence and fine, or substantive sentence or fine, or fine only, in default of payment of fine, he can be ordered to undergo imprisonment. Section 30 Cr PC prescribes maximum period for which a court may award imprisonment in default ofpayment offine. [Para 19] (740-F-G] 2. 3.

Under the provisions ofNarcotic Drugs and Psychotropic Substances Act, 1985 which is a special law, there is no express power in a court to order imprisonment in default ofpayment offine, but 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 oflaw having power to impose fine as one ofthe punishments. It is true that Section 18 of the Act does not expressly provide for an accused to remain in jail in default ofpayment offine. It merely provides for imposition of sentence as alsQ payment of fine. However, even in absence of specific provision in the Act empowering a Court to order imprisonment in default ofpayment offine, such power is implicit and is possessed by a Court administering criminal justice. ... l-- [Paras 15, 16 and 20) [737-C-D; F, G; 741-A) BashiruddinAshrafv. State ofBihar, [1957) SCR 1032, relied on. Queen-Empress v. Yakoob Sahib, ILR (1899) 22 Mad. 238; and Sukhdeo Singh v.

Calcutta Corporation, AIR (1953) Cal. 41, referred to. 3. 1. However, the term ofimprisonment in default ofpayment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment offine. 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 ofimprisonment ordered in default ofpayment offine stands on a different footing. A person is required to undergo imprisonment eith~r because he is unable to pay the amount offine or refuses to pay such amount. He, therefore, 'rcan always avoid to undergo imprisonment in default ofpayment of fine by paying such amount.

It is, therefore, not only thepower, but also 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 offine. [Para 27) [744-C-E) 3. 2. In the instant case, the conviction is under the NDPS Act. Section 18 ofthe Act provides penalty for certain offences in relation to opium poppy and opium and minimum fine contemplated thereunder is rupees one lakl1. It is true that maximum sentence _J· SHANTILALv. STATE 731 imposable on the appellant is twenty years, but he has been ordered to undergo substantive sentence of rigorous imprisonment for ten years which is minimum. Clause (b) ofsub-section (1) ofsection 30 Cr PC authorizes the Court to award imprisonment in default of payment of fine upto one-fourth term of imprisonment for the offence.

A general principle oflaw reflected in Sections 63-70 IPC is that an amount offine should not be harsh or excessive. -~ [Paras 28 and 36) [744-F; 750-C-E\ Palaniappa Gounderv. State ofTamil Nadu & Ors. , [1977) 2 SCC 634, relied on. Emperor v. Mendi Ali, ILR (1941) All 608: AIR (1941) All 310, referred to. 3. 3. Though an amount ofpayment offine of rupees one lakh which is minimum as specified in Section 18 of the Act cannot be reduced in view of the legislative mandate, but considering the circumstances - the accused 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 offine (rupees one lakh) and if he is ordered to remain in jail even after the period of substantive sentence is over only because ofhi~ inability to pay fine, serious prejudice will be caused not only to him, but also to his family members who are innocent-ends ofjustice would be met by directing - -..

c that in default ofpayment offine ofrupees one lakh, the appellant shall undergo rigorous imprisonment for six months instead ofthree years as ordered by the trial court and confirmed by the High Court. [Para 36) [750-E-H; 751-A) CRIMINAL APPELLATE n. JRISDICTION : Criminal Appeal No. 1375of2007. From the Judgment and final Order dated 20. 2. 2004-ofthe High Court ofMadhya Pradesh, Bench at Indore in Criminal Appeal No. 1258 of 1997. Shiv Kumar Suri for the Appellant. ~\ Govind Goel, C. D. Singh, Maru Sagar Samanta Ray, Vairagya . Vardhan, Sunny Chowdhary and Ram Naresh Yadav for the Respondent. The Judgment ofthe Court was delivered by C. K. THAKKER, J. 1. Leave granted. 2. The present appeal is filed by the appellant-accused against the judgment and order dated February 20, 2004 passed by the High Court of Madhya Pradesh (Indore Bench) in Criminal Appeal No. 1258 of 1997.

By the said order, the High Court confirmed an order ofconviction and sentence recorded by the Second Additional Sessions Judge, Neemuch on November 20, 1997 in Special Criminal Case No. 12 of 1994. Both the courts convicted the appellant herein for an offence under Section 8 read with Section 18 ofthe Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and ordered him to undergo rigorous imprisonment for ten years and also to pay fine ofrupees one lakh, in default to undergo rigorous iinprisonment for three years. 3. The case of the prosecution was that on May 1, 1993, at about 4. 00 a. m. in the morning, Station House Officer, Ratangarh received secret information through an informant that one Shantilal (appellant herein) resident ofvillage Kankariya Talai was carrying narcoti~ 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 ofgrain from a field. When he was coming out ofBara with the bag in his hand, he was intercepted by ASI Gopal Singh and caught with the assistance ofpolice 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 himselfi. 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 was found but the bag carried by him contained 7 kilos, 60 grams ofnarcotic drug. The substance was smelt by panchwitnesses and it was found to be opium. The appellant was arrested on the allegation that he was possessing unlawful opium. He was taken to the Police Station where a crime was registered. Muddamal was deposited in Malkhana. After due investigation, charge-sheet was filed against the --1 accused in Sessions Court, Mandsaur. The case was thereafter transferred to the Additional Sessions Judge for disposal in accordance with law. 4. The accused pleaded not guilty to the charge. He contended that he was falsely implicated in the case and claimed to be tried. He also contended that he was arrested four days prior to the incident. 5.

The trial Court on the basis of the evidence adduced by the prosecution and believing the testimony ofPW 7-ASI Gopal Singh, PW · 4-Modi Ram (panch I), PW8-Abdul Wazim (panch II) and other D witnesses, held that the prosecution was successful in proving the case against the accused. It also held that all procedural requirements had been complied with and the accused was found to be in possession of7 kilos and 60 grams ofopium and had committed an offence punishable under Section 18 ofthe Act. 6. On question of sentence, the Court afforded hearing to the accused and finally passed the following order; "For violation of provisions of Section 8 of the NDPS Act, the accused Shantilal S/o Devilal, aged 32 years, Rio. Village Kankariya Talai, P. S. Ratangarh, District Mandsaur being found guilty of the offence punishable under Section 18 NDPS Act is punished with rigorous imprisonment for 10 (ten) years with a fine ofrupees one lakh.

In default ofpayment offine, he shall undergo a further rigorous imprisonment for 3 (three) years". 7. Being aggrieved by the said order, the appellant moved the High Court ofMadhya Pradesh. (Indore Bench) which confinned the order of conviction as well as sentence recorded by the trial Court. It observed that the trial Court had rightly held that the accused was carrying contraband opium weighing 7 kilos and 60 grams and conviction recorded against him could not be said to be illegal. Regarding sentence, the High Court observed that minimum sentence was awarded by the trial Court and it did not call for interference. Accordingly, the appeal was dismissed. 8. The appellant challenged the orders 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 ofthe NDPS Act ofrigorous 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 ofRs. I lakh. Ifthe amount offine is not paid, as ordered by the Court, the petitioner has to undergo the rigorous imprisonment ofthree 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 r~ an error of law in convicting the appellant.

From the evidence ofthe prosecution witnesses, it was not established that the appellant had committed an offence under the Act and hence he is entitled to acquittal. It was also submitted that mandatory requirements ofthe Act had not been observed and on that ground also, conviction ofthe appellant cannot stand. It was further argued that there is specific provision for imposition of fine on the accused in the Act, but there is no provision to impose sentence in lieu ofpayment offine and hence, no punishment could have been awarded on the accused in default ofpayment offine. To that extent, therefore, the order is illegal and is liable to be set aside. The counsel submitted that substantive sentence imposed on the appellant-accused under Section 18 ofthe Act was rigorous imprisonment for ten years. _} The appellant has already undergone the said sentence.

But as the fine of rupees one lakh was imposed and in default offine, the trial Court ordered the appellant to undergo rigorous imprisonment for three years that he is in jail as he could not pay the amount offine. Since the Court has no right to order substantive sentence in default ofpayment offine, the order passed by the Court imposing sentence and action ofauthorities in keeping the appellant injail are illegal and unlawful and the appellant is entitled to be set at liberty forthwith. Alternatively, it was submitted by the learned counsel that the appellant is a poor person; he was mere 'carrier' and the contraband opium did not belong to him; it was his first offence; he did not abscond after the incident and surrendered immediately; even after he was enlarged on bail, he never abused the concession granted in his favour; he presented himselfbefore the authority oflaw as soon as he came to know about the dismissal ofhis appeal by the High Court.

He has his 'family' and even if it is held by this Court that imprisonment can be ordered in default ofpayment offine as held D by both the courts, on the facts and in the circumstances ofthe case that part ofthe order may be set aside and liberal view may be taken directing the release ofthe appellant. 10. The learned Advocate for the State ofMadhya Pradesh, on the other hand, supported the order ofconviction and sentence. He submitted that the trial Court appreciated the evidence on record and considered the sworn testimony ofprosecution witnesses, believed them and recorded a finding of guilt against the appellant. It was also observed that the procedural requirements had been complied with and prosecution was successful in proving the guilt of the accused. Minimum substantive sentence as also minimum amount offine (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 ofpayment offine, the Court must be conceded with the said power and it cannot be objected to. The learned counsel contended that the provisions ofthe Code ofCriminal Procedure, 1973 (hereinafter referred to as 'CrPC') make it clear that a Court oflaw can award imprisonment in default ofpayment offine up to one-fourth ofthe term ofimprisonment which a Court is competent to inflict as punishment for the offence. As under Section 18 ofthe 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 ofpayment offine could be ordered up to five years. The trial Court, however, taking liberal view, imposed sentence in default of payment offine ofthree years which could not be said to be unlawful or otherwise illegal.

The counsel, therefore, submitted that the appeal deserves to be dismissed as no case has been made out by the appellant. J. _-- 11. We have given our anxious considerationto the rival submissions of the parties and in our judgment, the appeal deserves to be partly allowed. 12. So far as the conviction recorded by the trial Court and confirmed by the High 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 and confirmed by the High Court can be ~ i held wrong or illegal. Roth the courts considered the depositions on oath of the prosecution witnesses and held that it was proved beyond reasonable doubt that the appellant-accused was found in possession of contraband opium weighing 7 kilos 60 grams. Both the Courts have also held that all the procedural requirements had been complied with.

The appellant-accused was not possessing on his person contraband opium, but it was recovered from a bag. Taking into account all the facts, in our opinion, both the courts were right in convicting the accused. We are, therefore, unable to uphold the argument ofthe learned counsel for the appellant that by holding the appellant guilty, the Courts below have committed an error oflaw. To that extent, therefore, the contention has no force and is accordingly negatived. 13. As regards sentence, the appellant was carrying opium (7 kilos and 60 grams) and his case was covered by Section 18 of the Act. Minimum sentence prescribed thereunder is rigorous imprisonment for ten years which had been imposed by both the Courts below which is clearly in consonance with law. Hence, even that part of the order suffers from no infirmity and must be upheld. 14. The learned counsel for the appellant, however, submitted that SHANTI LAL v. STATE [C. K. THAKKER,J.

] 737 the appellant has already undergone substantive sentence often years. From the order ofJanuary 31, 2007 extracted hereinabove, it appears prima facie that what the appellant says is correct. This is further clear from the application [Criminal Miscellaneous Application No. 1075 of 2006] filed on December 7, 2006. But it cannot be overlooked that the appellant was also ordered to pay minimum fine of rupees one lakh as required by Section 18 of the Act, and in default, he was ordered to undergo rigorous imprisonment for three years. Admittedly, the said period is not over. 15. Thus, an important and debatable question which arises for our consideration is whether a Court oflaw can order a convict to remain in jail in default ofpayment offine? It is true that Section 18 ofthe Act does not expressly say so. It merely provides for imposition ofsentence 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. - Whoever, in contravention ofany 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 ----. c: 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 ofspecific provision in the Act empowering a Court to order imprisonment in default of payment of fine, such power is implicit and is possessed by a Court administering criminal justice.

Jn this regard, it may be appropriate to consider the relevant provisions ofthe Indian Penal Code [IPC] and the Code of Criminal Procedure, 1973 [CrPC]. Section 40, IPC defines 'offence'. Sections 41 and 42 explain 'special law' and 'local law' respectively. Chapter III, IPC prescribes various punishments. Few Sections are relevant which deal with imposition offine and imprisonment in default ofpayment offine. They are Sections 63 to 70 and reads thus; 63. Amount offine Where no sum is expressed to which a fine may extend, the amount offine to which the offender is liable is unlimited, but shall not be excessive. 64.

Sentence of imprisonment for non-payment offine In every case, ofan offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case ofan offence punishable with imprisonment or fine, or] with fine only, in which the offender is sentenced to a fine, it shall be competent to the Court which sentences such offender to direct by the sentence that, in default ofpayment ofthe fine, the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess ofany other imprisonment to which he may have been sentenced or to which he may be liable under a commutation ofa sentence. 65.

Limit to imprisonment for non-payment offine, when imprisonment andfine awardable The term for which the Court directs the offender to be imprisoned in default ofpayment of a fine shall not exceed one-fourth ofthe term ofimprisonment which is the maximum fixed for the offence, ifthe offence be punishable with imprisonment as well as fine. 66. Description of imprisonment for non-payment offine The imprisonment which the Court imposes in default ofpayment of a fine may be of any description to which the offender might have been sentenced for the offence. 67.

Imprisonment for non-payment offine, when offence punishable with fine only Ifthe offence be punishable with fine only, the imprisonment which the Court imposes in default ofpayment ofthe fine shall be simple, A, and] the term for which the Court directs the offender to be imprisoned, in default ofpayment offine, shall not exceed tile following scale, that is to say, for any term not exceeding two months when the amount ofthe-fine shall not exceed fifty rupees, and for any tenn 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 offine The imprisonment which is imposed in default ofpayment ofa fine shall tenninate whenever that fine is either paid or levied by process oflaw. 69. Termination ofimprisonment on payment ofproportional part of.

fine If, before the expiration ofthe term ofimprisonment fixed in default of payment, such a proportion ofthe fine be paid or levied that the term ofimprisonment suffered in default ofpayment 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 thereofwhich remains unpaid, may be levied at any time within six years after the passing ofthe sentence, and if, under the sentence, the offender be liable to imprisonment for longer period than six years, then at any time previous to the expiration ofthat period; and the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts. 17. Section 30, CrPC provides for 'sentence ofimprisonment in default offine'. It is also relevant and reads as under; 30. Sentence ofimprisonment in default offine.

--(1) The Court ofa Magistrate may award such tenn ofimprisonment in default ofpayment offine as is authorised by law: Provided that the term- (a) is not in excess ofthe powers ofthe Magistrate under section 29; (b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default ofpayment ofthe fine. (2) The imprisonment awarded under this section may be in addition to a substantive sentence ofimprisonment for the maximum term awardable by the Magistrate under section 29. 18. We may as well refer to Section 25 ofthe General Clauses Act, 1897 which states; 25. Recovery offines.

- Sections 63 to 70 of the Indian Penal Code (45 of 1860) and the provisions of the Code of Criminal Procedure (5 of 1898) for the time being in force in relation to the issue and the execution ofwarrants for the levy offines shall apply to all fines imposed under any Act, Regulation, rule or bye-law unless the Act, Regulation, rule, or bye-law contains an express provision to the contrary. 19. From the above provisions, in our opinion, it is clear that ifa person commits any offence under IPC, he can be punished and when such offence is punishable with substantive sentence and fine, or substantive sentence or fine, or fine only, in default ofpayment offine, he can be ordered to undergo imprisonment. Section 30, CrPC prescribes maximum period for which a Court may award imprisonment in default ofpayment offine. 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 ofNarcotic Drugs and Psychotropic Substances Act, 1985 which is a special law. There is no express power in a Court to order imprisonment in default ofpayment offine. 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 oflaw having power to impose fine as one ofthe 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 fme ofrupees eight and in default ofpayment, to undergo simple imprisonment for one week. The relevant provision oflaw empowered the Court to award "fine not exceeding Rs. 50 or imprisonment ofeither description not exceeding eight days". 22. Benson, J. observed that the question was whether the award ofa week's imprisomnent in default of payment of fine was legal.

His Lordship considered the relevant provisions oflPC 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 ofthe term (eight days) ofimprisonment 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 ofthe 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 fine" in that Section must be understood in the same sense as those words bear in Section 64.

The wording ofSection 64, it must be admitted, is not happy, but I am ofopinion that the Legislature intended by it to provide for the award of imprisonment in default of payment offine 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 ofthese classes in my opinion includes two classes, viz. , (a) offences like the present punishable with imp;isonment or fine in the alternative, and (b) offences punishable, as most ofthose 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 ofpayment of fine, then proceeded to lay down limits to that power. Section 65 limited the power in the first class ofcases, Section 67 in the third class. Ifthe 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 ofthe general power ofa Magistrate, and a firstclass Magistrate in a case like the present could award two years' rigorous imprisonment in default ofpayment ofa petty fine, though in all other classes ofcases his power is strictly limite,d". (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 ofthe 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 ofsentence ofimprisonment 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 ofimprisonment in lieu offine by virtue ofthe said provisions. SHANTI LAL v. STATE [C. K. THAKKER,J. ] 743 24. A similar question came up for consideration before this Court before fifty years in BashiruddinAshrafv. State ofBihar, (1957) SCR 1032. There a mutawalli was charged for violating the provision ofSection 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, Patna and was ordered to pay a fine ofRs. 100 and in default to undergo simple imprisonment for 15 days.

Section 65(1) read thus; 65 (1) Ifa mutawalli fails without reasonable cause, the burden of proving which shall be upon him, to comply with any order or direction made or issued under clauses (i), (o) or (q) ofsub-section (2) ofsection 27 or under section 56, to comply with the provisions of sub-section (1) of section 57, sub-section (I) ofsection 58, section 59 or section 60, or to furnish any statement, annual account, estimate, explanation or other document or information relating to the waqfofwhich he is mutawa/li, which he is required or called upon to furnish under any ofthe other provisions ofthis Act, he shall be punishable with fine which may extend, in the case of the first, offence, to two hundred rupees and, in the case of second or any subsequent offence, to five hundred rupees. 25. It was contended on behalfof the mutawalli that Section 65 did not provide for imprisonment in default ofpayment offine.

He was, however, ordered to suffer 15 days' simple imprisonment in default of payment offine which was illegal. This Court considered Section 33 of the Code ofCriminal Procedure, 1898 (similar to·Section 30 ofthe present Code of Criminal Procedure, 1973) and Sections 40 and 67, IPC and held that the contention had no force and it was open to the Court to order imprisonment ofthe accused in default ofpayment offine. 26. Though Section 25 ofthe 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 no room for doubt that Sections 63 to 70, IPC and the provisions ofCrPC relating to award ofimprisonment in default of payment offine 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 H ~ contrary'.

We are, therefore, unabie to uphold the bald contention ofthe c\ appellant that in absence of specific provision to orderimprisonment in default of payment offine in a statute, a Court of law has no power to order imprisonment ofan offender who fails to pay fine and such action would be illegal or without authority oflaw. In our judgment, in absence ofa provision to the contrary, viz. that no order of imprisonment can be passed in default ofpayment offine, 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 ofimprisonment in default ofpayment offine is not a sentence. It is a penalty which a person incurs on account ofnon-payment offine.

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 ofpayment offine 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 ofpayment offine by paying such amount. It is, therefore, not only the power, but the duty ofthe court to keep in view the nature ofoffence, circumstances under which it was committed, the position ofthe offender and other relevant considerations before ordering the offender to suffer imprisonment in default ofpayment offine. r ... 28. A general principle of law reflected in Sections 63 to 70, IPC is that an amount offine should not be harsh or excessive.

The makers of IPC were conscious ofthis problem. The Authors ofthe Code, therefore, observed; "Death, imprisonment, transportation, banishment, solitude, compelled labour, are not, indeed, equally disagreeable to all men. ~ But they are so disagreeable to all men that the legislature, in assigning these punishments to offences, may safely neglect the differences produced by temper and situation. With fine, the case is different. In imposing a fine, it is always necessary to have as much regard to the pecuniary circumstances ofthe offender as to the character and magnitude ofthe offence. The mulet which is ruinous to a labourer is easily borne by a tradesman, and is absolutely unfelt by a rich Zamindar. It is impossible to fix any limit to the amount ofa fine which will not either be so high as to be ruinous to the poor, or so low as to be no object ofterror to the rich.

There are many millions in India who would be utterly unable to pay a fine offifty rupees; there are hundreds ofthousands from whom such a fine might be levied, but whom it would reduce to extreme distress; there are thousands to whom it would give very little uneasiness; there are hundreds to whom it would be a matter ofperfect indifference, and who would not cross a room to avoid it. The number ofthe poor in every country exceeds in a very great ratio the number ofthe rich. The number of poor criminal it is matter ofabsolute indifference whether the fine to which he is liable to be limited or not, unless it be so limited as to render it quite inefficient as a mode ofpunishing the rich. To a man who has no capital, who had laid by nothing, whose monthly wages are just sufficient to provide himselfand his family with their monthly rice, it matters not whether the fine for assault be left to be settled by the discretion ofthe Courts, or whether a hundred rupees be fixed as the maximum.

There are no degrees in impossibility. He is no more able to pay a hundred rupees than to pay a lac. A just and wise Judge, even ifentrusted with a boundless discretion will not, under ordinary circumstances, would leave it quite in the power ofan unjust or inconsiderate Judge to inflect on such an offender all the evil which can be inflicted on him by means offine .... 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 ofgreat offences arising from cupidity, offorging a bill ofexchange, for example, ofkeeping a receptacle for stolen goods, or ofexistence embezzlement, ought, we conceive, to be so tined as to reduce him to poverty.

That such a man should, when his imprisonment is over, return to the enjoyment ofthree-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 ofhis wealth". [see Ratanlal & Dhirajlal, 'Law ofCrimes'; 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 measures shall be adopted in default of payment? And here two modes of proceeding, with both ofwhich we were familiar, naturally occurred to us.

The offender may be imprisoned till the fine is aid, or he may be imprisoned for a certain term, such imprisonment being considered as standing in place ofthe fine. In the former case, the imprisonment is used in order to compel him to part with his money; in the latter case, the imprisonment is a punishment substituted for another punishment. Both modes of proceeding appear to us to be open to strong objections. To keep an offender in imprisonment till his fine is paid is, ifthe fine be beyond his means, to keep him in imprisonment all his life; and it is impossible for the best Judge to be certain that he may not sometimes impose a fine which shall be beyond the means ofan offender. Nothing could make such a system tolerable except the constant interference ofsome authority 'r .. empowered to remit sentences; and such constant interference we should consider as in itselfan evil.

On the other hand, to sentence an offender to fine and to a certain fixed term ofimprisonment in default of payment, and then to leave it to himself to determine whether he will part with his money or lie in goal, appears to us to be a very objectionable course. The high authority of Mr. Livingstone is here against us. He allows the criminal, ifsentenced to a fine exceeding one-fourth ofhis property, to compel the Judge to commute the excess for imprisonment at the rate ofone day of imprisonment for every two dollars offine, and he adds, that such imprisonment must in no case exceed ninety days. We regret that SHANTI LAL v. STATE [C. K. THAKKER,J. ] 747 we cannot agree with him; the object ofthe penal law is to deter from offences, and this can only be done by means ofinflictions disagreeable to offenders.

The law ought not to inflict punishments unnecessarily severe; but it ought not, on the other hand, to call the offender into council with his Judges, and to allow him an option between two punishments. In general, the circumstance that he prefers one punishment raises a strong presumption that he ought to suffer the other. The circumstance that the love of money is ~A_ stronger passion in his mind than the love ofmoney is a stronger passion in his mind than the love ofpersonal liberty is, as far as it goes, a reason for our availing ourselves rather ofhis love ofmoney than ofhis love ofpersonal liberty for the purpose ofrestraining 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 ofhis 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 ofimposing 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 ofthe offence. Ifthe offence be one which is punishable with imprisonment as well as fine, the term of imprisonment in ~· ~ default ofpayment will not exceed one-fourth ofthe longest term ofimprisonment fixed by the Code for the offence. Ifthe offence be one which by the Code is punishable only with fine, the term ofimprisonment for default ofpayment will in no case exceed seven days" [See Ratanlal & Dhirajlal; supra; pp. 226-27] .. :>- 30. The issue also came up for consideration in some cases. In Emperor v.

Mendi Ali, ILR (1941) All 608 : AIR 1941 All 310, M was charged with an offence of murder of his wife. The Sessions Court, however, convicted him for an offence punishable under Section 304, Part I, IPC since M had committed the offence ofkilling his wife in grave and sudden provocation as he saw her (his wife) ''with his own eyes committing adultery with N'. M was thus altogether deprived ofthe power of selfcontrol. But the Sessions Judge not only imposed the maximum imprisonment often years under Section 304, Part I, but he also imposed fine ofRs. 100 or to undergo rigorous imprisonment for one year. 31. In a suo motu revision, the High Court observed that the Sessions Judge had awarded maximum term of sentence on M for the offence for which he was found guilty "and added to it a fine (which there could surely have been little prospect of his paying). The result was that he was, in effect, sentenced to eleven years' rigorous imprisonment". 32. Considering the facts, Braund, J.

stated; "So far as the fine is concerned, I cannot think it is proper, in the case ofa poor peasant, to add to a very long term ofsubstantive imprisonment a fine which there is no reasonable prospect ofthe accused man paying and for default in paying which he will have to undergo a yet further term of imprisonment. And, in my judgment, without venturing to say whether it is a course which is strictly in accordance with the law or not, I cannot help thinking that it becomes all the more undesirable to impose such a fine where the term of imprisonment to be undergo in default will bring the aggregate sentence of imprisonment to more than the maximum term of imprisonment sanctioned by the particular section under which he is convicted. I venture to think that Judges should exercise a careful discretion in the matter of superimposing fines upon long substantive terms of imprisonment". (emphasis supplied) 33. We may as well refer to a decision ofthis Court in Palaniappa Gounder V.

State ofTN & Ors. , [1977] 2 sec 634. In that case, p was convicted by the Principal Sessions Judge, Salem and was sentenced to death. The High Court of Madras upheld the conviction but reduced the sentence from death to imprisonment for life. But while reducing the sentence, the Court imposed a fine of Rs. 20,000/- on P. Leave was granted by this Court limited to the question ofthe propriety offine. > 34. The Court considered the provisions oflPC as also CrPC and observed that Courts have power to impose a sentence offine and iffine 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 ·- l . 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 oflife imprisonment the question still arises whether a sentence offine ofRs. 20,000/- is justified in the circumstances ofthe case. Economic offences are generally visited with heavy fines because an offender who has enriched himselfunconsciously 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 ofcases, apply to matters ofthe present kind. Though there is power to combine a sentence ofdeath with a sentence of fine that power is sparingly exercised because the sentence ofdeath is an extreme penalty to impose and adding to that grave penalty a sentence offine is hardly calculated oflife imprisonment is seldom combined with a heavy sentence of fine.

We cannot, ofcourse, go so far as to express approval ofthe unqualified view taken in some ofthe cases that a sentence offine for an offence ofmurder is wholly "inapposite" (see, for example), State v. Pandurang Singh, AIR (1956) Born 711, at p. 714) but before imposing the sentence offine, particularly a heavy fine, along with the sentence ofdeath oflife imprisonment, one must pause to consider whether the sentence offine is at all called for and if so, what is a proper or adequate fine to impose in the circumstances ofthe cases. As observed by this Court in Adamji Umer Dalal v. The State of Bombay, [1952] SCR 172, determination ofthe right measure of punishment is often a point ofgreat difficulty and no hard and fast rule can be laid down, it being a matter ofdiscretion which is to be guided by a variety ofconsiderations but the Court must always bear in mind the necessity ofmaintaining a proportion between the ·( offence and the penalty proposed for it.

Speaking for the Court Mahajan J. observed in that case that: "in imposing a fine it is necessary to have as much regard to the pecuniary circumstances ofthe accused persons as to the character and magnitude ofthe offence, and where a substantial term ofimprisonment is inflicted, an excessive fine should not accompany it except in exceptional cases" (p. _177). Tbough that case related to an economic offence, this Court reduced the sentence offine from Rs. 42,300/- to Rs. 4,000/-on the ground that due regard was not paid by the lower Court to the principles governing the imposition ofa sentence of fine". 36. 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 rundergo substantive sentence ofrigorous 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, CrPC authorizes the Court to award imprisonment in default ofpayment offine 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 behalfofthe appellant-accused that he is very poor; 'r ~ he is merely a carrier; he has to maintain his family; it was his first offence; because ofhis poverty, he could not pay the heavy amount offine (rupees one lakh) and ifhe is ordered to remain in jail even after the period of substantive sentence is over only because ofhis 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, ofthe view that though an amount ofpayment offine ofrupees one lakh which is minimum as specified in Section 18 ofthe Act cannot be reduced in view ofthe legislative mandate, ends ofjustice would be met if we retain that part ofthe direction, but order that in default of payment offine ofrupees one lakh, the appellant shall undergo rigorous imprisonment for six months instead ofthree years as ordered by the trial court and confinned by the High Court. 37.

For the reasons aforesaid, the appeal is partly allowed, conviction recorded and sentence imposed on the appellant to undergo rigorous imprisonment for ten years is confinned. An order of payment offine of rupees one lakh is also upheld. But an order that in default ofpayment of fine, the appellant shall undergo rigorous imprisonment for three years is reduced to rigorous imprisonment for six months. To that extent, the appeal filed by the appellant is allowed. Ifthe appellant has undergone substantive sentence of rigorous imprisonment for ten years as also rigorous imprisonment for six months as modified by us in default of payment of fine, the appellant shall be set at liberty forthwith unless he is required in any other offence. Ifthe appellant has not completed the said period, he will be released after the period indicated hereinabove is over. The appeal is accordingly disposed of. RP. Appeal disposed of.