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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     1592     OF     2012   (Arising out of S.L.P. (Crl.) No. 276 of 2011)

Shahejadkhan Mahebubkhan Pathan             .... Appellant(s)

Versus

State of Gujarat                       .... Respondent(s)

WITH       

CRIMINAL     APPEAL     NO.      1593     OF     2012   (Arising out of S.L.P. (Crl.) No. 277 of 2011)

J     U     D     G     M     E     N     T   

P.Sathasivam,J.

1) Delay condoned.

2) Leave granted.

3) These appeals are directed against the final judgment and  

order dated 08.07.2002 passed by the High Court of Gujarat at  

Ahmedabad in Criminal Appeal Nos. 11 and 75 of 2002  

whereby the Division Bench of the High Court dismissed the  

appeals filed by the appellants herein and affirmed the  

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judgment dated 10.12.2001 passed by the Additional Sessions  

Judge, Ahmedabad City in Sessions Case No. 381 of 2000.    

4) Brief facts:

(a) On 04.09.2000, on a tip-off, the Narcotic Cell, Police  

Bhavan, Gandhinagar, Gujarat arrested two persons, viz.,  

Shahejadkhan Mahebubkhan Pathan and Narendrasinh  

Chandrashekhar Rai (the appellants herein) carrying 500  

grams brown sugar (narcotic substance) at Kalupur Railway  

Station, Ahmedabad while they were traveling in Sarvodaya  

Express from Delhi to Ahmedabad through Ratlam.    

(b) After following the procedure regarding search and  

seizure and after registering the case under the Narcotic Drugs  

and Psychotropic Substances Act, 1985 (in short ‘the NDPS  

Act’), the samples were sent to the Forensic Science Laboratory  

(FSL) for examination.   

(c) On 19.12.2000, after filing of the charge sheet, the case  

was committed to the Court of Session and numbered as  

Sessions Case No. 381 of 2000.   

(d) The Additional Sessions Judge, Ahmedabad City, after  

considering the notification of the Government being No.  

SO.1055 (E) dated 19.10.2001 and the provisions of the NDPS  

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Act held that the quantity of the narcotic substance (brown  

sugar) falls under the head  “Commercial Quantity” and found  

the appellants guilty for the offence punishable under Sections  

8(c), 21 and 29 of the NDPS Act and sentenced them to suffer  

rigorous imprisonment (RI) for 15 years.  The Additional  

Sessions Judge, after taking note of the fact that the  

appellants belong to the State of Madhya Pradesh and were  

carrying such commercial quantity of brown sugar to the State  

of Gujarat for doing business, also imposed a fine of Rs. 1.5  

lakhs each, in default, to further undergo RI for 3 years.  

(e) Being aggrieved, the appellants herein filed Criminal  

Appeal Nos. 11 and 75 of 2002 before the High Court of  

Gujarat.  The Division Bench of the High Court, by impugned  

order dated 08.07.2002, dismissed the said appeals.  

Questioning the same, the appellants herein have filed  

separate appeals by way of special leave before this Court.

5) Heard Dr. Sushil Balwada, learned counsel for the  

appellants-accused and Ms. K. Enatoli Sema, learned counsel  

for the respondent-State.

6) Learned counsel appearing for both the appellants before  

the High Court as well as before this Court, considering the  

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materials placed by the prosecution, has not seriously  

canvassed the conviction, however, taking note of various  

aspects including the age and poorness, prayed for reduction  

of sentence.  In addition to the same, learned counsel also  

prayed for modification of default sentence awarded by the  

Additional Sessions Judge, Ahmedabad City and confirmed by  

the High Court.

7) In view of the limited relief prayed for and considering the  

relevant and acceptable materials placed by the prosecution in  

support of their case, there is no need to traverse the finding  

relating to conviction, accordingly, we hereby confirm the  

same.

Sentence:

8) Coming to the question of sentence, it is not in dispute  

that the appellants were charged for possession of brown sugar  

in the quantity of 500 grams which falls under the head  

“commercial quantity”. As per the notification of the  

Government being No. SO.1055(E) dated 19.10.2001, it is  

necessary to consider the same in terms of Section 21(c) of the  

NDPS Act.  The trial Judge, taking note of the fact that the  

appellants were carrying such commercial quantity of brown  

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sugar to the State of Gujarat from the State of Madhya  

Pradesh, awarded RI for 15 years and also directed them to  

pay a fine of Rs.1.5 lakhs each, in default, to further undergo  

RI for 3 years.  For offences punishable under Sections 8(c), 21  

and 29 of the NDPS Act, undoubtedly, the minimum sentence  

prescribed is 10 years which may extend to 20 years with fine.  

In this regard, it is useful to refer a decision of this Court in  

Balwinder Singh vs. Asstt. Commr., Customs & Central  

Excise, (2005) 4 SCC 146.  The appellant therein was  

convicted for offences punishable under Sections 18, 22, 23,  

25, 28, 29 and 30  of  the NDPS Act and Section 120-B of the  

Indian Penal Code, 1860 (in short ‘the IPC’).  This Court,  

having regard to the facts and circumstances and taking     note    

of     the     fact     that     the     appellant     therein     was     convicted     for     the     said    

offences     for     the     first     time   (emphasis supplied), while  

confirming the conviction, reduced the sentence from 14 years  

to 10 years for the offences under the NDPS Act and the IPC.

9) It is projected before us that both the appellants are first  

time offenders and there is no past antecedent about their  

involvement in offence of like nature on earlier occasions.  It is  

further brought to our notice, which is also not disputed by the  

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learned counsel for the State that as on date, the appellants  

had served nearly 12 years in jail. In view of the same and in  

the light of the decision of this Court, in Balwinder Singh  

(supra), while confirming the conviction, we reduce the  

sentence to 10 years which is the minimum prescribed  

sentence under the relevant provisions of the NDPS Act.   

Default Sentence:

10) Coming to the next claim of the appellants, i.e., default  

sentence, the trial Judge, taking note of various aspects  

including the fact that the appellants were carrying commercial  

quantity of brown sugar from the State of Madhya Pradesh to  

the State of Gujarat for doing business, imposed a fine of  

Rs.1.5 lakh each, in default, ordered to undergo RI for 3 years.

11) According to the learned counsel for the appellants, the  

default sentence, i.e., 3 years, is very harsh and the Additional  

Sessions Judge ought not to have imposed such sentence for  

non-payment of fine amount.  In view of the same, he relied on  

a decision of this Court in Shantilal vs. State of M.P. (2007)  

11 SCC 243 wherein this Court considered the imprisonment  

in default of payment of fine with reference to various  

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provisions of IPC and the Code of Criminal Procedure, 1973 (in  

short ‘the Code’) and held as under:

“31.  ……….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. 32. A general principle of law reflected in Sections 63 to 70  IPC is that an amount of fine should not be harsh or  excessive. The makers of IPC were conscious of this problem.  The authors of the 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 of the offender as to the  character and magnitude of the offence….

The authors further stated: (Ratanlal & Dhirajlal  at pp. 226-27)

…..When a fine has been imposed, what  measures shall be adopted in default of payment? And  here two modes of proceeding, with both of which we  were familiar, naturally occurred to us. The offender  may be imprisoned till the fine is paid, or he may be  imprisoned for a certain term, such imprisonment  

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being considered as standing in place of the 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, if  the 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 of an  offender……

…..On the other hand, to sentence an offender  to fine and to a certain fixed term of imprisonment in  default of payment, and then to leave it to himself to  determine whether he will part with his money or lie in  gaol, appears to us to be a very objectionable  course…..  

…..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 vary 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.”

33. The issue also came up for consideration in some cases.  In Emperor v. Mendi Ali, 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 of  killing 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 of the power of self- control. But the Sessions Judge not only imposed the  maximum imprisonment of ten years under Section 304 Part  I but he also imposed a fine of Rs 100 or to undergo rigorous  imprisonment for one year.

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34. 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.”

35. Considering the facts, Braund, J. stated: (Mendi Ali case,  AIR p. 311)

“So far as the fine is concerned, I cannot think it is  proper, in the case of a poor peasant, to add to a very  long term of substantive imprisonment a fine which  there is no reasonable prospect of the 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 undergone 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.”

36. We may as well refer to a decision of this Court in  Palaniappa Gounder v. State of T.N. (1977) 2 SCC 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 of the  propriety of fine.

37. 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.

38. Speaking for the Court, Chandrachud, J. (as His  Lordship then was) said: (SCC pp. 638-39, para 9)

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“9. 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 unconscionably 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 quite  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 exercised  because the sentence of death is an extreme penalty to  impose and adding to that grave penalty a sentence of  fine is hardly calculated to serve any social purpose. In  fact, the common trend of sentencing is that even a  sentence of life imprisonment is seldom combined with  a heavy sentence of fine. We cannot, of course, go so  far as to express approval of the unqualified view  taken in some of the cases that a sentence of fine for  an offence of murder is wholly ‘inapposite’  (see, for  example, State v. Pandurang Tatyasaheb Shinde, AIR  1956 Bom. 711 at p. 714), but before imposing the  sentence of fine, particularly a heavy fine, along with  the sentence of death or life imprisonment, one must  pause to consider whether the sentence of fine is at all  called for and if so, what is a proper or adequate fine  to impose in the circumstances of the case. As  observed by this Court in Adamji Umar Dalal v. State of  Bombay, AIR 1952 SC 14 determination of the right  measure of punishment is often a point of great  difficulty and no hard-and-fast rule can be laid down,  it being a matter of discretion which is to be guided by  a variety of considerations but the Court must always  bear in mind the necessity of maintaining a proportion  between the offence and the penalty proposed for it.  Speaking for the Court, Mahajan, J. observed in that  case that: (AIR p. 16, para 5)

‘5. … In imposing a fine it is necessary to have  as much regard to the pecuniary circumstances of the  accused persons as to the character and magnitude of  the offence, and where a substantial term of  

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imprisonment is inflicted, an excessive fine should not  accompany it except in exceptional cases.’ Though that case related to an economic offence, this  Court reduced the sentence of fine from Rs 42,300 to  Rs 4000 on the ground that due regard was not paid  by the lower court to the principles governing the  imposition of a sentence of fine.”

12) It is clear and reiterated that the term of imprisonment in  

default of payment of fine is not a sentence.  To put it clear, it  

is a penalty which a person incurs on account of non-payment  

of fine.  On the other hand, if sentence is imposed,  

undoubtedly, an offender must undergo unless it is modified or  

varied in part or whole in the judicial proceedings.  However,  

the imprisonment ordered in default of payment of fine stands  

on a different footing.  When such default sentence is imposed,  

a person is required to undergo imprisonment either because  

he is unable to pay the amount of fine or refuses to pay such  

amount.  Accordingly, he can always avoid to undergo  

imprisonment in default of payment of fine by paying such an  

amount.  In such circumstance, we are of the view that it is  

the duty of the Court to keep in view the nature of offence,  

circumstances in which it was committed, the position of the  

offender and other relevant considerations  such as pecuniary  

circumstances of the accused person as to character and  

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magnitude of the offence before ordering the offender to suffer  

imprisonment in default of payment of fine.  The provisions of  

Sections 63 to 70 of IPC make it clear that an amount of fine  

should not be harsh or excessive.  We also reiterate that where  

a substantial term of imprisonment is inflicted, an excessive  

fine should not be imposed except in exceptional cases.

13) While taking note of the above principles, we are  

conscious of the fact that the present case is under the NDPS  

Act and for certain offences, the Statute has provided  

minimum sentence as well as minimum fine amount.   In the  

earlier part of our judgment, taking note of the fact that the  

appellants being the first time offenders, we imposed the  

minimum sentence, i.e., 10 years instead of 15 years as  

ordered by the trial Court.  In other words, the appellants have  

been ordered to undergo substantive sentence of RI for 10  

years which is minimum.   

14) In view of the above, it is relevant to mention Section 30  

of the Code which speaks about sentence of imprisonment in  

default of fine:

“30. Sentence of imprisonment in default of fine – (1) The  Court of a Magistrate may award such term of imprisonment  in default of payment of fine as is authorized by law:

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Provided that the term- (a) is not in excess of the powers of the 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 of payment  of the fine.

(2) The imprisonment awarded under this section may be  in addition to a substantive sentence of imprisonment for the  maximum term awardable by the Magistrate under Section  29.”  

It is clear that clause (b) of sub-section (1) of Section 30 of the  

Code authorizes the Court to award imprisonment in default of  

fine up to 1/4th of the term of imprisonment which the Court is  

competent to inflict as punishment for the offence.  However,  

considering the circumstances placed before us on behalf of  

the appellants-accused, viz., they are very poor and have to  

maintain their family, it was their first offence and if they fail  

to pay the amount of fine as per the order of the Additional  

Sessions Judge, they have to remain in jail for a period of 3  

years in addition to the period of substantive sentence because  

of their inability to pay the fine, we are of the view that serious  

prejudice will be caused not only to them but also to their  

family members who are innocent.  We are, therefore, of the  

view that ends of justice would be met if we order that in  

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default of payment of fine of Rs.1.5 lakhs, the appellants shall  

undergo RI for 6 months instead of 3 years as ordered by the  

Additional Sessions Judge and confirmed by the High Court.

15) For the reasons stated above, both the appeals are partly  

allowed.  The conviction recorded is confirmed and sentence  

imposed upon the appellants to undergo RI for 15 years is  

modified to 10 years.  The order of payment of fine of Rs.1.5  

lakhs each is also upheld but the order that in default of  

payment of fine, the appellants shall undergo RI for 3 years is  

reduced to RI for 6 months.  Since the appellants have already  

served nearly 12 years in jail, we are of the view that as per the  

modified period of sentence in respect of default in payment of  

fine, there is no need for them to continue in prison.   The  

appellants shall be set at liberty forthwith unless they are  

required in any other offence.  It is further made clear that for  

any reasons, if the appellants have not completed the modified  

period of sentence, they will be released after the period  

indicated hereinabove is over.   

16) The appeals are allowed to the extent mentioned above.

………….…………………………J.  

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               (P. SATHASIVAM)                                  

       ………….…………………………J.                 (RANJAN GOGOI)                                   

NEW DELHI; OCTOBER 5, 2012.

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