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 ......................Appellant Vs. State of U.P. ................ Opposite Party Hon'ble Vedpal,J.
The appellant Yusuf Ali has filed this appeal from jail against the judgment and order dated 13.5.2009 passed by Sri Ram Karan H.J.S., the then Additional Sessions Judge/Fast Tract Court No.2, Bahraich in Special Trial No.14-A/97 State Vs. Yusuf Ali under Section 8/20 Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'Act') Police Station-Sujauli, District- Bahraich whereby appellant was convicted for the offence punishable under Section 8/20 of the Act and was sentenced to undergo rigorous imprisonment for a period of eleven years and two months and to pay a fine of rupees one lac and twenty five thousand and in default of payment of fine to further undergo imprisonment for a period of two years and nine months. The prosecution version, as is revealing from the record, is that on 1.1.1997 when a police party consisting of Sub- Inspector Devi Din Singh, Constable Lal Bahadur, Constable Ram Dheeraj Verma, Constable Mukhatar Ahmad and Constable Rajendra Nath Tiwari was on patrolling duty and reached near railway line Tigra crossing, the police personnels noticed that some persons are coming towards them on which police party hide themselves behind the bush. After some time, two persons came there who were apprehended by the police and when their names and addresses were inquired into, one of them told his name Jakhir Husain while the other Yusuf Ali. Both of them had a bag in their hand and when they were inquired as to why they were here in the dark night, they told that they have brought charas from Nepal and on being asked for taking search in the presence of Gazetted Officer, both of them forego it and stated that when we have been arrested, you yourself may take our search. On the search being being made, 3 kgs of charas was recovered from the bag of Jakhir Husain and on the search of bag of Yusuf Ali, about one and half Kgs. of charas was recovered. When the licence of the charas was demanded from both the accused persons, they could not show any licence. A formal arrest of both accused was made and recovery memo at about 9:45 p.m. was prepared by the police and after being signed it by the police as well as by the accused persons, the police returned to police station along with arrested persons and the recovered article, where on the basis of arrest and recovery memo, a case for the offence punishable under Section 8/22 of the Narcotic Drugs Psychotropic Substances Act was registered against accused Jakhir Husain and Yusuf Ali. The investigation of the case was entrusted to Sri Kayam Singh. During the investigation, the Investigating Officer recorded statement of the witnesses, prepared a site plan of the place of incident. A sample of recovered article was sent for chemical examination which was found charas. After completing all the formalities of the investigation, the Investigating Officer submitted separate charge sheet against accused persons. After submission of the charge sheet when the case was pending in the trial court, accused Zakhir Husain absented himself, so the case of Yusuf Ali was separated.
Accused Yusuf Ali (appellant herein) was charged by the learned trial court for having committed an offence punishable under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act. Accused pleaded not guilty to the charges and claimed to be tried.
The prosecution in order to prove its case against accused, examined three witnesses in all besides documentary evidence. PW-1 Ram Dheeraj and P.W.-2 Sub-Inspector Devi Din Singh are the witness of facts while P.W.-3 Devi Baksh Sing was a formal witness who was available at the relevant time and who had prepared the chik report and had made an entry in the G.D. of registration of the case and all other important events concerning to the case.
The accused in his statement under section 313 Cr.P.C. denied the prosecution allegations and stated that he has been falsely implicated in the case on account of enmity and the alleged recovery was not made from his possession. Accused did not adduce any evidence in his defence. Learned trial court relying on the prosecution evidence reached to the conclusion that charge stands proved against accused beyond all reasonable doubt and accordingly he convicted and sentenced the accused as stated above. Feeling aggrieved with the said judgment and order, the appellant has preferred this appeal.
I have heard Ms. Trishita Singh learned Amicus Curiae for the accused as well as learned AGA for the State and perused the record of the case.
Learned Amicus Curiae appearing for the appellant has not challenged the merit of the conviction and sentence recorded against appellant by the court below.
He submitted that the appellant is a poor person and has no criminal antecedent and he has already undergone the substantive period of sentence of imprisonment awarded to him and even then he is in jail, because he is not in a position to pay the amount of fine imposed on him and he is serving sentence awarded to him in default of payment of fine and the sentence awarded in default of payment of fine is excessive and it should be reduced in the facts and circumstances of the present case. In support of his contention he relied on Shanti Lal Vs. State of M. P. reported in 2008 (60) ACC 34. Learned AGA contended that the appellant was also awarded sentence to pay a fine of rupees one lac and twenty five thousand and in default of payment of fine he was sentenced to undergo further imprisonment for a period of two years and nine months which appears appropriate and should not be reduced. He further contended that even on the merit, the appellant has no leg to stand and his appeal on merit of conviction has rightly been not pressed.
I have carefully considered the respective submissions made by the parties. It reveals from the perusal of the record that two witnesses of facts testified by the prosecution in support of this case. Both of them have supported the prosecution version. They have corroborated the statement of each other. They were put to cross examination but nothing material could be elicited from their cross examination, which may be of any help to the accused. Thus the learned Amicus Curiae rightly has not pressed this appeal on merit of the conviction. Now the question that arises for consideration is as to whether the sentence awarded to the appellant in default of payment of fine can be reduced.
It has been argued on behalf of the appellant that the appellant is a very poor person. He is not in a position even to engage another counsel and had there been any money with the appellant, he would certainly have made payment or would engage another private counsel but he has not done so. Learned amicus curiae further contended that Hon'ble Supreme Court in case of Shanti Lal (supra) had reduced the term of imprisonment that was awarded in default of payment of fine and as such in the present case sentence awarded in default of payment of fine should also be reduced. I have carefully considered this aspect of the matter. It reveals from the perusal of the ruling cited by the learned Amicus Curiae that Hon'ble Supreme Court in case of Shanti Lal (supra) has held as follow:
"The next submission of the learned counsel for the appellant, however, has substance. The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or "otherwise". A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount. It is, therefore, not only the power, but the duty of the court to keep in view the nature of offence, circumstances under which it was committed, the position of the offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment of fine.?
Hon'ble Supreme Court in this case further held as follows:
"We are mindful and conscious that the present case is under the NDPS Act.
Section 18 quoted above provides penalty for certain offences in relation to opium poppy and opium. Minimum fine contemplated by the said provision is rupees one lakh [" fine which shall not be less than one lakh rupees"]. It is also true that the appellant has been ordered to undergo substantive sentence of rigorous imprisonment for ten years which is minimum. It is equally true that maximum sentence imposable on the appellant is twenty years. The learned counsel for the State again is right in submitting that clause (b) of sub-section (1) of Section 30, Cr.P.C. authorizes the Court to award imprisonment in default of payment of fine up to one-fourth term of imprisonment which the Court is competent to inflict as punishment for the offence. But considering the circumstances placed before us on behalf of the appellant-accused that he is very poor; he is merely a carrier; he has to maintain his family; it was his first offence; because of his poverty, he could not pay the heavy amount of fine (rupees one lakh) and if he is ordered to remain in jail even after the period of substantive sentence is over only because of his inability to pay fine, serious prejudice will be caused not only to him, but also to his family members who are innocent. We are, therefore, of the view that though an amount of payment of fine of rupees one lakh which is minimum as specified in Section 18 of the Act cannot be reduced in view of the legislative mandate, ends of justice would be met if we retain, that part of the direction, but order that in default of payment of fine of rupees one lakh, the appellant shall undergo rigorous imprisonment for six months instead of three years as ordered by the trial court and confirmed by the High Court."
It reveals from the perusal of the above case law that term of imprisonment in default of payment of fine is not a sentence but a penalty which an accused incur on account of non payment of fine. It is true that the appellant was not found able to engage counsel of his choice in the court and initially he has preferred this appeal from jail and later on learned Amicus Curiae was appointed. There is nothing on record that the appellant had criminal antecedent. This incident pertains to the year 1997 about 13 years back. Since then accused is in jail. Awarding imprisonment in default of payment of fine is a mode for realization of the amount of fine. Furthermore, Section 421 Cr.P.C. provides that if an accused has undergone sentence in default of payment of fine even then his liability to pay the fine does not come to an end. The accused has already undergone substantive imprisonment awarded to him and his undergoing imprisonment in default of payment of fine. If there exists special reasons to be recorded for the trial court, the amount of fine may be released from accused even after undergoing imprisonment in default of payment of fine.
In these circumstances keeping in view the principal of law laid down by Hon'ble Supreme Court in case Shanti Lal (supra), I am of the opinion that if imprisonment in default of payment of fine is reduced, it will serve the ends of justice. Since the accused has undergone imprisonment in default of payment of fine in part, it appears appropriate to reduce imprisonment in default of payment of fine to one year and four months. The appeal is, therefore, liable to be party allowed.
In view of the above, the appeal is party allowed. The conviction recorded and the sentence imposed on the appellant to undergo rigorous imprisonment for a period of eleven years and two months and to pay a fine of rupees one lac and twenty five thousand, is hereby confirmed but the order in default of payment of fine to undergo imprisonment is modified to this extent that in default of payment of fine the accused appellant shall undergo imprisonment for a period of one year and four months only. If there remains any other period of the said imprisonment in default of payment of fine, the accused shall undergo it and if he has completed one year and four months' imprisonment in default of payment of fine and he is not wanted in any other case, he shall be released forthwith.
Inform the court below, accordingly.
28 .7.2010 Mahesh Let the copy of this judgment and order be sent to the learned trial court for necessary action along with the record of the case.
Order Date :- 28.7.2010 Mahesh