ISSA @ RAJ (MOHD.) Vs. STATE

JUDGEMENT

(1.) The present appeal is directed against judgment dated 22nd October, 2009 convicting the Appellant for offences under Section 5 of the Explosive Substance Act, 1908 (in short the ES Act) read with Section 18 and 23 of the Unlawful Activities Prevention Act, 1957 (in short the UAP Act) besides Section 120B IPC. The Appellant has also challenged the order on sentence dated 26th October, 2009 whereby the following sentences have been awarded to the Appellant. (i) Rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 10,000/- and in default to undergo rigorous imprisonment for a further period of 1 year under Section 5 ES Act. (ii) Rigorous Imprisonment for a period of 7 years under Section 18 of UAP Act and to pay a fine of Rs. 50,000/- and in default to undergo rigorous imprisonment for a period of 1 year. (iii) Rigorous imprisonment for a period of 7 years and to pay a fine of Rs. 50,000/- each and in default to undergo rigorous imprisonment for a further period of 1 year under Section 27 of the UAP Act. (iv) Rigorous imprisonment for a period of 4 years under Section 120B IPC.

(2.) Early hearing of this appeal was allowed on 31st October, 2011. However, in view of the adjournments sought the matter could not be heard. Finally on 15th January, 2013 the production of the Appellant was directed and when he was produced it was revealed that he had undergone the substantive sentence on all the counts on 16th November, 2012 and thereafter he is undergoing sentence in lieu of fine which is 3 years R.I. on the three counts put together. On 21st February, 2013 learned counsel for the Appellant on instructions from the Appellant sought time to address arguments on the point that even in a case of enhanced penalty the quantum of fine and the sentence in default of payment of fine awarded by the learned Trial Court was on the higher side, unwarranted and liable to be set aside.

(3.) Learned counsel for the Appellant submits that the quantum of fine has not been defined in the special enactments i.e. ES Act and the UAP Act, however Section 63 IPC provides that the fine should not be excessive and as per Section 64 IPC the sentence in default of payment of fine should not exceed one-fourth of the maximum sentence that can be awarded. There is no previous involvement. The Appellant should not be prejudiced due to his poverty and for not being able to deposit the fine amount. Thus, the fine amount and the sentence in default of payment of fine be reduced.