Page 1 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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Page 2 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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Page 3 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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Page 4 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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Page 5 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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Page 6 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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Page 7 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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Page 8 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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Page 9 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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Page 10 “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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Page 11 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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Page 12 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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Page 13 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 1/4

th

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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Page 14 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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Page 15 (P. SATHASIVAM)

………….………………………… J.

(RANJAN GOGOI)

NEW DELHI;

OCTOBER 5, 2012.

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