DEVILAL @ BHERULAL Vs. STATE OF M.P.

JUDGEMENT

(1.) By this appeal under Section 374 of the Cr.P.C. appellant Devilal has challenged the judgment dated 24.11.2009 passed by the Special Judge, NDPS Act (Fast Track), Neemuch in Special Sessions Case No.07/2005 convicting the accused for offence under Section 8/18 (b) of the NDPS Act and sentencing him to undergo 10 years rigorous imprisonment and fine of Rs.1 lac; in default of payment of fine he was to undergo two years additional rigorous imprisonment.

(2.) Counsel for the appellant has vehemently submitted the fact that the appellant had been falsely implicated and the learned Judge of the lower Court had failed to consider that it was not within the appellant's knowledge that any opium had been recovered from him. Counsel also urged that there is violation under Sections 42 and 57 of the NDPS Act and the mandatory provisions of the law had been flouted. Counsel for the appellant also candidly admitted that he was not much aggrieved by the conviction at present since the appellant has already undergone the custodial sentence of 10 years. However, the fine imposed being Rs.1 lac the appellant being a poor person was unable to pay the same. Counsel urged that looking to the young age of the accused being only 40 year old at the time of the incident; the custodial sentence of the default clause be reduced.

(3.) Counsel placed reliance in the case of Shantilal Vs. State of M.P., 2008 1 SCC(Cri) 1 whereby under identical circumstances the Apex Court had while considering the tenability and imposition of custodial sentence in default of payment of fine found that the sentence and penalty were distinct and held that 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 nonpayment of fine and sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole, either in appeal or 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. Counsel submitted that on account of nonpayment of fine the Apex Court had consequentially reduced the sentence in default of payment from 2 years to 6 months. Counsel submitted that the benefit be also extended to the present appellant.