Allahabad High Court
Musheer vs State Of U.P. on 23 July, 2010
Court No. - 5 Case :- CRIMINAL APPEAL No. - 1124 of 2005 Petitioner :- Musheer Respondent :- State Of U.P. Petitioner Counsel :- Anil Kumar Pandey Respondent Counsel :- Govt.Advocate Hon'ble Vedpal,J.
Appellant Musheer has filed this appeal against the judgment and order dated 3.8.2005, passed by Shri Sharda Prasad Tiwari, H.J.S., the then Additional Sessions Judge( Court No. 4), district Barabanki in S.T.No. 104 of 2000 (Case Crime No.150 of 2000) State Vs. Musheer relating to the Police Station Zaidpur,district Barabanki whereby the appellant was convicted for the offence punishable under Section 8/21(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 ( Hereinafter referred to as Act) and was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rupee one lac and in default of payment of fine to further undergo imprisonment for a period of two years.
The prosecution version, as is revealing from the record, is that on 13.7.2000 at 2.55 a.m. the Station Officer of Police Station Zaidpur received a telephonic call that Musheer r/o Tikra Usman of Police Station Zaidpur had opium and morphine at his house. On the basis of the said information a raid was arranged. The Police party headed by Kunwar Gyananjai Singh tried to take public witness but none was prepared to accompany the Police. Thereafter the police party after making search of each other reached the house of Musheer. The door of the house was opened by his wife at the knocking of the Police party and seeing the Police Musheer tried to run away but was arrested at the spot. Musheer was asked as to whether he wished that the search be made in presence of a Gazetted Officer. Musheer refused and gave his consent for his search . On the search being made four kilogramme Morphine was found from the bag. Musheer and his wife were taken into custody and recovered article was sealed at the spot. A memo of search and recovery was prepared by the Police, copy of which was also handed over to Musheer. The Police party returned the Police Station with the arrested persons as well as recovered article, where on the basis of search and recovery memorandum, case crime no. 150 of 2000 for the offence punishable under Section 8/21 of the Act, was registered against accused at 8.45 a.m. The investigation of the case was entrusted to Sub Inspector Sri Ram Mangal Singh. This matter was also investigated upon by Sri S.K. Singh Negi after transfer of Sri Ram Mangal Singh, Sub Inspector. During the investigation of the case statements of the witnesses were recorded under the provisions of Section 161 of the Cr.P.C. The Investigating Officer visited the place of incident and prepared site-plan. Recovered article was analyzed by Forensic Laboratory . The Police after having completed formalities submitted charge sheet against accused Musheer.
The accused was charged for having committed offence punishable under Section 8/21(C) of the Act by the learned trial court. The accused pleaded not guilty to the charge and claimed to be tried. The prosecution in order to prove its case has examined five witnesses in all.
P.W.1 Sudhakar Singh as well as P.W.4 Kunwar Gyananjai Singh, Circle Officer are witnesses of fact. P.W.2 Ram Sewak Nagar is a formal witness, who had entered in the General Diary of the Police Station the telephonic call received at the Police Station and departure of the Police from the Police Station. Chick FIR on the basis of search and recovery of memo prepared by this witness. He also deposed that after completing required formalities Constable Devendra Mishra was sent to get the recovered article analyzed by the Forensic Laboratory. P.W.3 Constable Devendra Mishra is also a formal witness, who had deposed on the factum that he had taken the recovered article for chemical analysis to the Forensic Laboratory and it was got analysed at the Laboratory. P.W.5 Sri S.K. Singh is the Investigating officer of the case, who had deposed on the factum of investigation conducted by him as well as by his predecessor Sri Ram Mangal Singh.
The accused in his statement under Section 313 Cr.P.C. denied the prosecution allegation against him and stated that he has been involved in the case on account of enmity. The accused did not adduce any evidence in his defence before the trial court.
Learned lower court after hearing the parties and going through the record by analyzing evidence on record reached the conclusion that charge stands proved against accused beyond all reasonable doubt and accordingly he convicted and sentenced the accused ( herein appellant),as stated above.
Feeling aggrieved with the said judgment and order, passed by learned court below the appellant has preferred this appeal. I have heard learned counsel for the appellant as well as learned AGA for the State and perused the record of the case.
Learned counsel for the appellant has not challenged the merit of his conviction and sentence passed by the court below. He only contended that the appellant is a poor person and it was his first offence and there is no previous conviction on his credit and he has undergone substantive sentence of imprisonment awarded to him and now he is in jail because he is not in a position to pay the fine imposed on him which is excessive and it should either be reduced or the sentence of imprisonment in default of payment of fine be reduced. 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 found guilty for the offence punishable under Section 4 of the Act and he has been awarded ten years rigorous imprisonment to pay a fine of Rupee one lakh and in default of payment of fine to further undergo imprisonment for a period of two years and , thus, the minimum sentence prescribed for the offence has been awarded to the appellant and as such the amount of fine of Rupee one lac imposed on the appellant cannot be reduced. He further contended that even on merit the appellant has no leg to stand and rightly he has not pressed this appeal on the merit of the conviction. I have carefully considered the respective submissions made by the parties. It reveals from the perusal of the record that P.W.1 Sudhakar Singh and P.W.4 Gyananjai Singh Circle officer have supported the prosecution version on the factum of the receipt of the information at the Police, preparation of raiding party, raid at the house of appellant recovery of four kilogram . Morphine. The said article ,which was recovered from the bag of the accused while he was running away from his house was found morphine on chemical analysis in the laboratory . The report of the laboratory is also on record. The statements of these two witnesses corroborate each other. The statement of the witness of fact also stands corroborated in material particulars with the statements given by the formal witnesses. There is no reason to disbelieve the witnesses produced by the prosecution. The mere fact that the witnesses are Police personnels is not in itself sufficient to doubt their veracity. There is no suggestion from the side of the accused that these Police personnels had any ill will against the appellant to falsely involve him in this anti social offence. The appellant had not adduced any evidence in defence before the court below. Thus, it cannot be said that without actual happening of the incident accused was involved in this case. In these circumstances the learned counsel for the appellant has not rightly pressed this appeal on the merit of the conviction.
Now the question which arises for consideration is as to whether the sentence awarded to the appellant can be reduced. In the present case the appellant has been sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. one lakh . It is the minimum punishment provided for this offence. Thus, there appears no ground to reduce the substantive sentence awarded to the appellant. Now the next question that arises for consideration is as to whether the term of imprisonment 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 to pay the fine and the term of imprisonment which is awarded in default of payment of fine is not a sentence and is merely a penalty and in the similar circumstances Hon'ble the Supreme Court in the case of Shanti Lal ( supra) has reduced the term of imprisonment that was awarded in default of payment of fine of Rupee one lakh from three years to six months and in the present case the sentence awarded in default of payment of fine is only two years so it must be reduced to the period of three months as has been done in Criminal Appeal No. 1486 of 2009 Asharfi Lal Vs. State of U.P. decided by this Court by Hon'ble Mr Justice Y.K.Sangal. I have carefully considered this aspect of the matter. Hon'ble Supreme Court in the case of Shanti Lal( supra) has held as follows;
"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, CrPC 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."
In the present case for the offence under Section 8/21of the Act the minimum sentence provided is ten years rigorous imprisonment and a fine of Rupee one lac. The minimum sentence has already been awarded in by the trial court. Hon'ble the Supreme Court in Shanti Lal( supra) had held that the term of imprisonment in default of payment of fine is not a sentence and it is a penalty which a person incurs on account of non payment of fine . Further more 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 court after recording special reasons may order for recovery of fine despite of the fact that accused has undergone imprisonment in default of payment of fine. In the case before Hon'ble the Supreme Court the appellant was convicted in default of payment of fine to undergo imprisonment for a period of three years while in the present case the appellant has been awarded two years imprisonment in default of payment of fine. Hon'ble the Supreme Court reduced the sentence in default of payment of fine to six months . On the same proportion in the instant case if the imprisonment in default of payment of fine is reduced to four months rigorous imprisonment, it will serve the ends of justice. In view of above, the appeal should be allowed in part accordingly. The appeal is, therefore, partly allowed. The conviction recorded and the sentence imposed on the appellant to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rupee one lac is hereby confirmed, but the order that in default of payment of fine the appellant shall undergo imprisonment for two years is modified to the extent that in default of payment of fine the accused ( appellant herein) shall undergo imprisonment for a period of four months. The appeal filed by the appellant is accordingly allowed in part only. Order Date :- 23.7.2010 Tripathi