Madras High Court
N.Kandipan vs State By on 21 July, 2014
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.07.2014 CORAM THE HONOURABLE MRS. JUSTICE ARUNA JAGADEESAN CRL.A.Nos.528 of 2013 and 552 of 2012 N.Kandipan ..Appellant in Crl.A.No.528/2013 R.Prabhakaran ..Appellant in Crl.A.No.552/2012 Vs State by: The Intelligence Officer, Narcotics Control Bureau, South Zone, Chennai. ..Respondent in both the Appeals Appeal filed under Section 374(2) Cr.P.C. R/w 36-B of NDPS Act 1985 as against the judgment passed by the learned I Additional Special Judge, Special Court under EC & NDPS Act cases at Chennai in C.C.No.266 of 2004 dated 14.08.2012. For Appellant in C.A.No.528/2013 : Mr.Suresh for M/s. T.K.Sampath Associates For Appellant in C.A.No.552/2012 : Mr.T.Muruganantham . For Respondent : Mr.N.P.Kumar Special Public Prosecutor. C O M M O N J U D G M E N T
These appeals are preferred against the judgment of conviction and order of sentence passed by the learned Special Judge, I Additional Special Court under NDPS Act, Chennai 104 in C.C.No.266 of 2004 dated 14.08.2012.
2. The appellant named R.Prabhakaran in C.A.No.552 of 2012 is the 2nd accused in C.C.No.266/2004 and the appellant named N.Kandipan in C.A.No.528 of 2013 is the third accused in C.C.No.266 of 2004. They are convicted for the offence under sections 8(c) r/w 21(c) and 29 of NDPS Act 1998 as amended by Act 9/01 and sentenced to undergo 10 years rigorous imprisonment for each offence and to pay a fine of Rs.1,00,000/- for each offence, in default, to undergo 6 months rigorous imprisonment for each offence by each of the accused. Totally there are three accused in this case.
3. The case of the prosecution in brief is that on 30.05.2004, the officer of NCB, P.W.2 Mr.S.Karthikeyan received information that a Srilankan namely Suresh @ Khalifa @ Sriskandaraja, an absconding convict in drug case is indulging in drug trafficking in Mumbai between Madhya Pradesh, Mumbai, Chennai and Srilanka with the assistance of the associate Kandipan(A3) , a Srilankan residing at Kottivakkam and the said Kalifa (A1) has procured about 3 kgs of heroin from Madhya Pradesh and come down to Chennai and was making arrangements to deliver about 3 kgs of heroin to one Ranganathan Prabhakaran (A2), a Srilankan and that the said Khalifa (A1) has sent his associate Kandipan(A3) with 3 kgs of heroin to deliver to Ranganathan Prabhakaran(A2) who has to illegally traffick to Srilanka through Rameshwaram in an Ambassador car bearing registration No.TN-09-J-7817 on 31.05.2004. On receiving the information, the NCB Officer, Chennai rushed to Tambaram Municipal Bus stop with two independent witnesses and mounted surveillance. The officer noticed a white colour Ambassador car coming from Chennai to Tindivanam direction. The officer surrounded the car with the help of two independent witnesses. The driver of the car disclosed his name as Koilraj and he is the owner cum driver of the above Ambassador car. The officer enquired the person who was seated in the car and seized 3 packets and on weighment, it was found to be 1.030 kgs, 1,030 kgs and 1.040 kgs, totally weighing 3.100 kgs. A seizure mahazar was drawn on the same day and the officer issued summons under section 67 of NDPS Act to those persons A2 and A3 on the same day and asked to appear before them and obtained a statement from them and thereafter, arrested them under section 8(c) r/w section 21(c), 28 and 29 of NDPS Act. They were produced before the Remanding Magistrate, Saidapet, Chennai.
4. It is the further case of the prosecution that on 01.06.2004, based on a specific information that a Srilankan Sriskandaraja, an absconding convict is involved in this case and he has come from Mumbai to Chennai on 28.05.2004 and staying in Mogappair area and that he would come to Ambathur O.T. Bus stand, the officer rushed to the bus stand and with the help of photograph, they identified the said Sriskandaraja and brought him to the office after summoning him under section 67 of the NDPS Act and obtained a statement from him. He was produced before IX Metropolitan Court, Saidapet, Chennai. After following the procedure contemplated under the NDPS Act, the samples were sent to chemical analysis and the presence of Di-Acetyl Morphine was confirmed.
5. In order to prove its case, the prosecution examined 8 witnesses and marked 44 exhibits and produced 15 material objects. The trial Court, after analysing the evidence, convicted the appellants and sentenced them as state above.
6. Learned counsel for the appellants/A2 and A3 confined their arguments only to the question of sentence. It is submitted by the learned counsel for the appellants that they have completed the substantive sentence of imprisonment. Learned counsel would further submit that P.W.3 arrested the 2nd accused on 31.05.2004 and he arrested the 3rd accused on 31.05.2004 and both the accused are in prison from the date of arrest i.e., from 31.05.2004 and they have completed the substantive sentence of imprisonment of 10 years and the appellants are not in a position to pay the fine amount. Learned counsel would further submit that the appellants are very poor persons and they are have big family to support and they are not involved in any other offence of similar nature. Learned counsel appearing for the appellants would further submit that the default sentence imposed upon the appellants is 6 months rigorous imprisonment for each offence. He would further submit that considering the fact that the appellants have completed substantive sentence and their inability to pay the fine which is a huge sum, the default sentence may be reduced.
7. On the other hand Mr.N.P.Kumar, learned Special Public Prosecutor appearing for NDPS Act cases would submit that the appellants were in possession of 3.100 kgs of heroin and the quantum of contraband exceeded the commercial quantity and it is a serious offence under NDPS Act and therefore, he vehemently objected to the modification the default sentence.
8. This Court heard the arguments of the learned counsel for the appellants as well as the learned Special Public Prosecutor appearing for the NDPS Act cases.
9. As the learned counsel appearing for the appellants confined their arguments only with regard to award of default sentence, I am not inclined to go into the merits of the case though the appeals were filed challenging the judgment of conviction and sentence of imprisonment. Therefore, the conviction under sections 8(c) r/w 21(c) and 29 of NDPS Act, 1985 and the sentence of 10 years rigorous imprisonment for each offence and Rs.1 lakh for each offence as against the appellants, are confirmed.
10. In view of the above submission made by the learned counsel for the appellants, the default sentence of imprisonment for non-payment of fine has to be considered at this juncture.
11. The Honourable Supreme Court in Shanthilal Vs. State of M.P. Reported in (2007) 11 SCC 243 considered the imprisonment in default of payment of fine with reference to various provisions of IPC and the Code of Criminal Procedure, 1973. This Court in Crl.A.No.356 of 2012 on16.04.2013 has also taken the same view modifying the default sentence to 15 days R.I. on failure of payment of fine for each offence.
12. In a recent decision of the Hon'ble Supreme Court in Shahajadkhan Mahebubkhan Pathn vs. State of Gujarat reported in 2013 (2) LW Crl.254, it has been held 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 magnitude of the offence before ordering the offender to suffer imprisonment in default of payment of fine. Further held that the provisions of Sections 63 to 70 of IPC make it clear that an amount of fine should not be harsh or excessive and where a substantial term of imprisonment is inflicted, an excessive fine should not be imposed except in exceptional cases.
13. In Shantilal Vs. State of M.P. cited supra, it has been held by the Hon'ble Supreme Court as below:
The term of imprisonment in default of payment of fine is not 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.
14. Section 30(1)(b) of Code of Criminal Procedure authorizes the Court to award imprisonment in default of payment of fine upto one fourth term of imprisonment which the Court is competent to inflict as punishment for the offence. The maximum sentence imposable on accused under NDPS Act is 20 years. But in this case, the appellants have been ordered to undergo substantive sentence of 10 years rigorous imprisonment which is a minimum sentence. However on facts, considering the circumstances of the appellants/accused that they are very poor and have to maintain their family and that they could not pay the huge amount of fine of Rs.2 lakhs each and if they are ordered to remain in jail even after the period of substantive sentence is over only because of their inability to pay fine, serious prejudice would be caused not only to them but also to their family members who are innocent, I am of the view that though the amount of payment of fine of Rs.1 lakh for each count (for 2 counts Rs.2 lakhs) which is minimum as specified in Section 18 of NDPS Act cannot be reduced, in view of the legislative mandate, ends of justice would be met, if the appellants are ordered to undergo rigorous imprisonment of 15 days instead of six months for each offence, in default of payment of the fine amount.
15. In the result,
i) The judgment of conviction under sections 8(c) r/w 21(c) and 29 of NDPS Act, 1985 and the sentence of 10 years rigorous imprisonment for each offence and Rs.1 lakh for each offence passed by the learned Special Judge, I Additional Special Court under NDPS Act, Chennai 104 in C.C.No.266 of 2004 dated 14.08.2012 as against the appellants, are confirmed. The learned Special Judge has ordered to run the above said substantive sentences concurrently which also stand confirmed. However, the appellants are ordered to undergo rigorous imprisonment of 15 days instead of six months for each offence, in default of payment of the said fine amount.
ii) It is reported that the appellants have been in custody till date and have completed the substantive sentence of imprisonment on 31.05.2014 and they have completed the default sentences also. In case, the appellants have completed the default sentences also, they shall be released forthwith unless their presence is required in connection with any other case.
iii) The Superintendent of Central Prison, Puzhal-I, Chennai, is directed to act accordingly.
iv) Accordingly, the criminal appeals are disposed of.
21.07.2014 Index:Yes/No Internet: Yes/No vsi Note: Issue order copy on 22.07.2014 To
1. The I Additional Special Judge, Special Court under EC & NDPS Act Cases, Chennai
2. The Intelligence Officer, Narcotics Control Bureau, South Zone, Chennai.
3. The Public Prosecutor, High Court, Chennai.
ARUNA JAGADEESAN,J.
Vsi CRL.A.Nos.528 of 2013 and 552 of 2012 21.07.2014