Partly allowed

Selvakumar @ Palaniyandi v. the Intelligence Officer

Madras HC6 Jan 2014CRL A(MD)/279/2013

Case brief

AI extract

What is this about?

The Madras High Court reduced the default sentence of imprisonment for appellants already serving substantive sentences due to inability to pay fines under the NDPS Act, while confirming conviction.

What did the court decide?

Default sentence reduced to one month rigorous imprisonment per offence instead of six months; appellants released forthwith.

Selvakumar @ Palaniyandi Vs the Intelligence Officer — Narcotics (NDPS) | Madras HC (2014)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 06.01.2014

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CORAM:

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THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN

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CRL. A. (MD) No. 279 of 2013

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1.Selvakumar @ Palaniyandi @ Palani

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2.Fernando 3.Logananthan @ Nathan @ Vehishnan @ Kutty

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Micheal Augustin Dixon @ Pawan ...Appellants/A1 to A4

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Vs.

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Intelligence Officer, Narcotic Control Bureau, Chennai Zonal Unit (F.No.48/1/5/2003-NCB, Chennai. ..Respondent/Complainant

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Prayer :- This Criminal Appeal is filed to set aside the judgment passed in C.C.No.658 of 2003 dated 22.08.2013 on the file of Additional District and Sessions Judge and Special Court under NDPS Act, Pudukkottai.

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For Appellant : Mr.T.Muruganantham For Respondent : Mr.Arul Vadivel @ Sekar Special Public Prosecutor for NDPS Act Cases

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J U D G E M E N T

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This Criminal Appeal is preferred against the judgment of conviction and sentence dated 22.08.2013 passed by the learned Additional District Sessions Judge and Special Judge under NDPS Act, Pudukkottai, in C.C.No.658 of 2003.

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2.The appellants 1 to 4 are arrayed as the accused 1 to 4 in C.C.No.658 of 2003 on the file of the learned Additional District and Sessions Judge, Special Judge for NDPS Act Cases, Pudukkottai. Totally, there are four accused in this case. The first appellant was convicted under Sections 8(C) r/w 21(C), 25, 28, 29 of NDPS Act 1985 (Amended) (Act 9/2001) and sentenced to undergo 10 years rigorous imprisonment for each offence and with a fine of Rs.1 lakhs in default to undergo six months rigorous imprisonment for each offence (4 counts). The appellants 2 and 3 are convicted under Sections 8(C) r/w 21(C), 28, 29 of NDPS Act, https://hcservices.ecourts.gov.in/hcservices/ 1985 (Amended)Act 9/2001 and sentenced to undergo 10 years rigorous imprisonment for each offence and to pay a fine of Rs.1

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lakh for each offence in default to undergo 6 months rigorous imprisonment (total fine amount Rs.3 lakhs).The fourth appellant was convicted under Section 8(C) r/w 27(A), 28 and 29 of NDPS Act 1985 (Amended) Act 9/2001 and sentenced to undergo 10 years rigorous imprisonment for each offence and to pay a fine of Rs. 1 lakhs for each offence in default to undergo 6 months rigorous imprisonment. (3 counts). Challenging the above said conviction and sentence passed by the court below, the appellants have preferred this appeal.

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The learned counsel for the appellants 1 and 2 submitted that the appellants 1 and 2 are in prison from 27.04.2003 onwards and they have completed substantive sentence of imprisonment of 10 years and that the appellants 1 and 2 are not in a position to pay the fine amount. He would further submit that the appellants 1 and 2 are poor and have a big family to support and they are not involved in any other offence of similar nature.

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The learned counsel for the appellants 3 and 4 who are arrayed as the accused 3 and 4 submits that the appellants 3 and 4 were arrested even on 20.04.2003 and 08.06.2003 respectively in respect of a different case and was formally shown arrest in this case on 04.03.2009. The learned counsel would submit that even in the final report, the appellants 3 and 4 namely A3 and A4 were not shown as absconding accused and shown as lodged in prison. Therefore, he would submit that they are deemed to be in prison from 20.04.2003 and 08.06.2003 onwards respectively.

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The learned counsel for the appellants 1 and 2 and the learned counsel appearing for the appellants 3 and 4 would submit that they confine their arguments only in respect of the default sentence of imprisonment for non payment of fine imposed upon the appellants since the appellants have already completed substantive sentence of imprisonment.

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Mr. Arul Vadivel @ Sekar, learned Special Public Prosecutor appearing for NDPS Act cases on the other hand would submit that in this case the appellants were in possession of 4.040 kg, 3.340 kg, 4.010 kg & 2.010 kg of Heroin(totaling 13.400 kms) and the quantum of contraband exceeded the commercial quantity and it is a serious offence under NDPS Act and therefore, he has vehemently objected to modify the default sentences.

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This Court heard the argument of the learned counsel appearing for the appellants as well as the learned Special Public Prosecutor for NDPS Act Cases.

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The case of prosecution in brief is that on 25.04.2003, https://hcservices.ecourts.gov.in/hcservices/ on information received by the respondent the appellants 1 and 2 were apprehended and two packets containing 4.040 and 3.340 and

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4.010 and 2.010 kgs of contraband was seized from them respectively. It come to light that the accused 1 to 3 conspired together and pursuance to the said conspiracy with the financial assistance of the fourth accused and with active assistance of the third accused, A1 to A4 were planning to transport it to Srilanka.

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After following the procedure contemplated under Section 18 of NDPS Act samples were taken and subsequently, chemical analysis report was received stating that the sample were found to be heroin.

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In order to prove its case, prosecution examined 8 witnesses, marked 54 exhibits and produced 10 Material Objects. The trial court after analyzing the evidence, convicted and sentenced the appellants as stated above. The evidence of P.W.1 to 3 established the fact that the accused were found in possession of heroin. Ex.P.8 is the statement of the first accused and Ex.P.12 is the voluntary statement of the second accused. The prosecution has established the fact that the accused/appellants were in possession of heroin by letting in oral and documentary evidence. Though the appeal was filed challenging the judgment of conviction under Sections 8(c) r/w 21(1), 25, 28, 29 of NDPS Act 1985, the same is confirmed. The sentence period of 10 years imprisonment for each count and fine of Rs.1 lakh for each count are also confirmed. The substantive sentence are directed to run concurrently by the learned Sessions Judge. The learned counsel appearing for the appellants would submit that considering the fact that they have completed substantive sentence and their inability to pay the fine which is the huge sum, the default sentence may be reduced.

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In view of said submission made by the learned counsel appearing for the appellants the default sentence of imprisonment for non payment of fine has to be considered at this juncture.

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The learned counsel appearing for the appellants would submit that the default sentences imposed upon the appellants is rigorous imprisonment for one year for each offence. He would pray for the default sentence may be reduced and the court may direct the default sentence to run concurrently.

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The Hon'ble Supreme Court in Shantilal Vs. State of M.P reported in (2007) 11 SCC 243 considered the imprisonment in default of payment of fine with reference to various provisions of IPC and the Code of Criminal Procedure, 1973. This Court in Crl.A.No.356 of 2012 on 16.04.2013 has also taken the same view modifying the default sentence to 15 days R.I on failure of payment of fine for each offence. https://hcservices.ecourts.gov.in/hcservices/

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In a recent decision of the Hon'ble Supreme Court in Shahejadkhan Mahebubkhan Pathan Vs.State of Gujarat reported in 2013 (2)LW Crl.254 , it has been held that it is 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 magnitude of the offence before ordering the offender to suffer imprisonment in default of payment of fine. Further held that the provisions of Sections 63 to 70 of IPC make it clear that an amount of fine should not be harsh or excessive and where a substantial term of imprisonment is inflicted, an excessive fine should not be imposed except in exceptional cases.

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In Shantilal Vs. State of M.P cited supra, it has been held by the Hon'ble Supreme Court as below:

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“The term of imprisonment in default of payment of fine is not 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”.

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Section 30(1)(b) of Code of Criminal Procedure authorizes the court to award imprisonment in default of payment of fine upto one fourth term of imprisonment which the court is competent to inflict as punishment for the offence. The maximum sentence imposable on accused under NDPS Act is 20 years. But in this case, the appellants have been ordered to undergo substantive sentence of 10 years rigorous imprisonment which is a minimum sentence. However on facts, considering the circumstances of the appellants/accused that they are very poor and, have to maintain their family,they could not pay the huge amount of fine of Rs.3 lakhs and if they are ordered to remain in jail even after the period of substantive sentence is over only because of their inability to pay fine, serious prejudice would be caused not only to them but also to their family members who are innocent, I am of the view that though the amount of payment of fine of Rs.1 lakh for each count (for 3 counts Rs.3 lakhs) which is minimum as specified in Section 18 of NDPS Act cannot be reduced, in view of the legislative mandate, ends of justice would be met, in default of payment of fine, the appellant shall undergo rigorous imprisonment for one month instead of six months for each count (totally 3 months). https://hcservices.ecourts.gov.in/hcservices/

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In sofaras the appellants 3 and 4 are concerned, the learned counsel would submit, they are in prison from 20.04.2003 and 08.06.2003 onwards and the same may be taken into consideration for computing the period of sentence undergone by them.

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The learned counsel for the appellants would submit that Section 428 of Code of Criminal Procedure would afford sufficient intention that the benefit is intended to cover the period of detention undergone by an accused not only the particular case but also in a different case. The learned counsel relied upon the decision reported in State of Maharashtra and Another Vs. Najakat Alia Mubarak Ali reported in AIR 2001 SC 2255. In paragraph No.18 of the said judgment it is stated as below:

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“Reading Section 428 of the Code in the above perspective, the words “of the same case” are not to be understood as suggesting that the set off is allowable only if the earlier jail life was undergone by him exclusively for the case in which the sentence is imposed. The period during which the accused was in prison subsequent to the inception of a particular case, should be credited towards the period of imprisonment awarded as sentence in that particular case. It is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the said period. The words “of the same case” were used to refer to the pre-sentence period of detention undergone by him. Nothing more can be made out of the collocation of those words”.

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Though arrest of the appellants 3 and 4 formally shown as 04.03.2009 but however, the fact remains that the appellants 3 and 4 were in custody from 20.04.2003 and 08.06.2003 respectively. In the light of decision cited supra, the period of incarceration of the third and fourth appellants is taken as from 20.04.2003 and 08.06.2003 respectively. Thus, the third appellant has completed the substantive sentence on 20.04.2013 and the fourth appellant has completed the substantive sentence on 08.06.2013.

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Having considered the view taken by this Court on earlier occasions and having regard to the law laid down by the Hon'ble Supreme Court in the decisions cited supra and considering the facts and circumstances of this case, this appeal is party allowed by reducing the default sentence to one month rigorous imprisonment for each offence instead of six months for each offence. The conviction and sentence recorded by the court below https://hcservices.ecourts.gov.in/hcservices/ in all other aspects are confirmed.

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The appellants 1 to 4 have been in custody till date and they have completed the default sentence also. They shall be released forthwith unless their presence is required in connection with any other case. 22. Under these circumstances, the Superintendent of Central Prison, Puzhal, Chennai, is directed to act accordingly.

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Sd/Assistant Registrar(T & P) / True copy /

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Sub Assistant Registrar

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