BABULAL Vs. STATE OF M P

JUDGEMENT

(1.) By this appeal under Section 374 of the Cr.P.C. appellant Babulal has challenged the judgment dated 17/7/2009 passed by the Special Judge (NDPS Act), Fast Track, District Neemuch in Special Sessions Case No.6/2006 convicting the accused for offence under Section 8/18(B) of the NDPS Act and sentencing him to 10 years rigorous imprisonment and fine of Rs.1 lac; in default of payment of fine he was to undergo 2 years additional rigorous imprisonment.

(2.) Counsel for the appellant has vehemently stated the fact that the appellant has been falsely implicated in the matter. Counsel also urged that there is violation under Sections 42 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 43 years 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 (Cr.)) 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 non - payment 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 non -payment 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.