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CASE NO.: Appeal (crl.)  1375 of 2007

PETITIONER: SHANTI LAL

RESPONDENT: STATE OF M.P

DATE OF JUDGMENT: 08/10/2007

BENCH: C.K. THAKKER & ALTAMAS KABIR

JUDGMENT: J U D G M E N T  ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 752 OF 2007 C.K. THAKKER, J.

1.              Leave granted. 2.              The present appeal is filed by the appellant- accused against the judgment and order dated February  20, 2004 passed by the High Court of Madhya Pradesh  (Indore Bench) in Criminal Appeal No. 1258 of 1997.  By  the said order, the High Court confirmed an order of  conviction and sentence recorded by the Second  Additional Sessions Judge, Neemuch on November 20,  1997 in Special Criminal Case No. 12 of 1994. Both the  courts convicted the appellant herein for an offence  under Section 8 read with Section 18 of the Narcotic  Drugs and Psychotropic Substances Act, 1985  (hereinafter referred to as \021the Act\022) and ordered him to  undergo rigorous imprisonment for ten years and also to  pay fine of rupees one lakh, in default to undergo  rigorous imprisonment for three years. 3.              The case of the prosecution was that on May 1,  1993, at about 4.00 a.m. in the morning, Station House  Officer, Ratangarh received secret information through  an informant that one Shantilal (appellant herein)  resident of village Kankariya Talai was carrying narcotic  drug and was expected to have come from the said  village. He was to carry illegal opium to Beju (Rajasthan).  The information was recorded by the Officer in  Rojnamcha No. 997. The Rojnamcha was then sent for  information to S.D.O.P., Jawad in accordance with Sectin  42 of the Act. ASI Gopal Singh (PW7) proceeded with the  police party along with panch-witnesses Modi Ram (PW4)  and Abdul Tazim (PW8) in a jeep.  They were divided in  two groups and hid themselves. At about 7.00 a.m., the  appellant was seen taking out a bag used to carry  fertilizer from a heap of grain from a field. When he was  coming out of Bara with the bag in his hand, he was  intercepted by ASI Gopal Singh and caught with the  assistance of police party. Gopal Singh told the accused  that it was suspected that he was carrying contraband  material and he had right to get search made by a  Gazetted Officer or by a Magistrate or by the witness  himself i.e. Gopal Singh. The appellant, however, opted  his search by ASI Gopal Singh himself.  Accordingly,  search was conducted.  From the person of the appellant- accused, nothing was found but the bag carried by him  contained 7 kilos, 60 grams of narcotic drug. The  substance was smelt by panch-witnesses and it was

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found to be opium.  The appellant was arrested on the  allegation that he was possessing unlawful opium.  He  was taken to the Police Station where a crime was  registered. Muddamal was deposited in Malkhana. After  due investigation, charge-sheet was filed against the  accused in Sessions Court, Mandsaur.  The case was  thereafter transferred to the Additional Sessions Judge  for disposal in accordance with law. 4.              The accused pleaded not guilty to the charge.  He contended that he was falsely implicated in the case  and claimed to be tried. He also contended that he was  arrested four days prior to the incident. 5.              The trial Court on the basis of the evidence  adduced by the prosecution and believing the testimony  of PW 7-ASI Gopal Singh, PW 4-Modi Ram (panch I),  PW8-Abdul Wazim (panch II) and other witnesses, held  that the prosecution was successful in proving the case  against the accused.  It also held that all procedural  requirements had been complied with and the accused  was found to be in possession of 7 kilos and 60 grams of  opium and had committed an offence punishable under  Section 18 of the Act. 6.              On question of sentence, the Court afforded  hearing to the accused and finally passed the following  order;     \023For violation of provisions of Section 8 of  the NDPS Act, the accused Shantilal S/o  Devilal, aged 32 years, R/o. Village Kankariya  Talai, P.S. Ratangarh, District Mandsaur being  found guilty of the offence punishable under  Section 18 NDPS Act is punished with rigorous  imprisonment for 10 (ten) years with a fine of  rupees one lakh. In default of payment of fine,  he shall undergo a further rigorous  imprisonment for 3 (three) years\024.          7.              Being aggrieved by the said order, the  appellant moved the High Court of Madhya Pradesh.   (Indore Bench) which confirmed the order of conviction  as well as sentence recorded by the trial Court.  It  observed that the trial Court had rightly held that the  accused was carrying contraband opium weighing 7 kilos  and 60 grams and conviction recorded against him could  not be said to be illegal. Regarding sentence, the High  Court observed that minimum sentence was awarded by  the trial Court and it did not call for interference.   Accordingly, the appeal was dismissed. 8.              The appellant challenged the orders passed by  both the courts by filing the present appeal.  This Court  on January 31, 2007 passed the following order;      \023Delay condoned.            The Trial Court passed the judgment and  order dated 2.11.1997 convicting and  sentencing the accused under sections 8 and  18 of the NDPS Act of rigorous imprisonment  of 10 years and fine of Rs.1 lakh, and in  default, further additional rigorous  imprisonment for three years. It is now stated  by the learned counsel for the petitioner that  the petitioner has undergone the sentence for  nine years and six months and that he is not  able to pay the amount of fine of Rs.1 lakh. If  the amount of fine is not paid, as ordered by  the Court, the petitioner has to undergo the

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rigorous imprisonment of three years.            Issue notice to the respondent limited to  the question as to whether the sentence on  default of payment of fine may be reduced\024.

9.              We have heard the learned counsel for the  parties.  The learned counsel for the appellant contended  that both the courts had committed an error of law in  convicting the appellant.  From the evidence of the  prosecution witnesses, it was not established that the  appellant had committed an offence under the Act and  hence he is entitled to acquittal.  It was also submitted  that mandatory requirements of  the Act had not been  observed and on that ground also, conviction of the  appellant cannot stand.  It was further argued that there  is specific provision for imposition of fine on the accused  in the Act, but there is no provision to impose sentence  in lieu of payment of fine and hence, no punishment  could have been awarded on the accused in default of  payment of fine.  To that extent, therefore, the order is  illegal and is liable to be set aside.  The counsel  submitted that substantive sentence imposed on the  appellant-accused under Section 18 of the Act was  rigorous imprisonment for ten years.  The appellant has  already undergone the said sentence.  But as the fine of  rupees one lakh was imposed and in default of fine, the  trial Court ordered the appellant to undergo rigorous  imprisonment for three years that he is in jail as he could  not pay the amount of fine.  Since the Court has no right  to order substantive sentence in default of payment of  fine, the order passed by the Court imposing sentence  and action of authorities in keeping the appellant in jail  are illegal and unlawful and the appellant is entitled to  be set at liberty forthwith.  Alternatively, it was submitted  by the learned counsel that the appellant is a poor  person; he was mere \021carrier\022 and the contraband opium  did not belong to him; it was his first offence; he did not  abscond after the incident and surrendered immediately;  even after he was enlarged on bail, he never abused the  concession granted in his favour; he presented himself  before the authority of law as soon as he came to know  about the dismissal of his appeal by the High Court.  He  has his \021family\022 and even if it is held by this Court that  imprisonment can be ordered in default of payment of  fine as held by both the courts, on the facts and in the  circumstances of the case that part of the order may be  set aside and liberal view may be taken directing the  release of the appellant. 10.             The learned Advocate for the State of Madhya  Pradesh, on the other hand, supported the order of  conviction and sentence. He submitted that the trial  Court appreciated the evidence on record and considered  the sworn testimony of prosecution witnesses, believed  them and recorded a finding of guilt against the  appellant.  It was also observed that the procedural  requirements had been complied with and prosecution  was successful in proving the guilt of the accused.    Minimum substantive sentence as also minimum amount  of fine (rigorous imprisonment for ten years and payment  of fine of rupees one lakh] was imposed on the appellant.   Such an order cannot be termed illegal or contrary to  law.  The counsel submitted that even in absence of  express provision to suffer imprisonment in default of  payment of fine, the Court must be conceded with the

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said power and it cannot be objected to.  The learned  counsel contended that the provisions of the Code of  Criminal Procedure, 1973 (hereinafter referred to as  \021CrPC\022) make it clear that a Court of law can award  imprisonment in default of payment of fine up to one- fourth of the term of imprisonment which a Court is  competent to inflict as punishment for the offence. As  under Section 18 of the Act (contravention in relation to  opium) a competent Court can order rigorous  imprisonment on an offender for a term which may  extend to twenty years, imprisonment  in default of  payment of fine could be ordered up to five years.  The  trial Court, however, taking liberal view, imposed  sentence in default of payment of fine of three years  which could not be said to be unlawful or otherwise  illegal.  The counsel, therefore, submitted that the appeal  deserves to be dismissed as no case has been made out  by the appellant. 11.             We have given our anxious consideration to  the rival submissions of the parties and in our judgment,  the appeal deserves to be partly allowed. 12.             So far as the conviction recorded by the trial  Court and confirmed by the High Court is concerned, no  infirmity has been pointed out by the learned counsel so  as to come to the conclusion that finding of guilt recorded  by the trial Court and confirmed by the High Court can  be held wrong or illegal.  Both the courts considered the  depositions on oath of the prosecution witnesses and  held that it was proved beyond reasonable doubt that the  appellant-accused was found in possession of  contraband opium weighing 7 kilos 60 grams. Both the  Courts have also held that all the procedural  requirements had been complied with.  The appellant- accused was not possessing on his person contraband  opium, but it was recovered from a bag.  Taking into  account all the facts, in our opinion, both the courts were  right in convicting the accused.  We are, therefore,  unable to uphold the argument of the learned counsel for  the appellant that by holding the appellant guilty, the  Courts below have committed an error of law.  To that  extent, therefore, the contention has no force and is  accordingly negatived. 13.             As regards sentence, the appellant was  carrying opium (7 kilos and 60 grams) and his case was  covered by Section 18 of the Act. Minimum sentence  prescribed thereunder is rigorous imprisonment for ten  years which had been imposed by both the Courts below  which is clearly in consonance with law. Hence, even that  part of the order suffers from no infirmity and must be  upheld. 14.             The learned counsel for the appellant,  however, submitted that the appellant has already  undergone substantive sentence of ten years.  From the  order of January 31, 2007 extracted hereinabove, it  appears prima facie that what the appellant says is  correct. This is further clear from the application  [Criminal Miscellaneous Application No. 1075 of 2006]  filed on December 7, 2006.  But it cannot be overlooked  that the appellant was also ordered to pay minimum fine  of rupees one lakh as required by Section 18 of the Act,  and in default, he was ordered to undergo rigorous  imprisonment for three years.  Admittedly, the said  period is not over. 15.             Thus, an important and debatable question  which arises for our consideration is whether a Court of

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law can order a convict to remain in jail in default of  payment of fine?  It is true that Section 18 of the Act does  not expressly say so.  It merely provides for imposition of  sentence as also payment of fine. The said section, as it  stood at the relevant time, read thus;         18. Punishment for contravention in  relation to opium poppy and opium.\027   Whoever, in contravention of any provision of  this Act, or any rule or order made or  condition of licence granted thereunder  cultivates the opium poppy or produces,  manufactures, possesses, sells, purchases,  transports, imports inter-State, exports inter- State or uses opium shall be punishable, with  rigorous imprisonment for a term which shall  not be less than ten years but which may  extend to twenty years and shall also be liable  to fine which shall not be less than one lakh  rupees but which may extend to two lakh  rupees;       Provided that the court may, for reasons  to be recorded in the judgment, impose a fine  exceeding two lakh rupees.  16.             In our opinion, however, even in absence of  specific provision in the Act empowering a Court to order  imprisonment in default of payment of fine, such power  is implicit and is possessed by a Court administering  criminal justice. In this regard, it may be appropriate to  consider the relevant provisions of the Indian Penal Code  [IPC] and the Code of Criminal Procedure, 1973 [CrPC].   Section 40, IPC defines \021offence\022.  Sections 41 and 42  explain \021special law\022 and \021local law\022 respectively.  Chapter  III, IPC prescribes various punishments.  Few Sections  are relevant which deal with imposition of fine and  imprisonment in default of payment of fine. They are  Sections 63 to 70 and reads thus; 63. Amount of fine Where no sum is expressed to which a fine  may extend, the amount of fine to which the  offender is liable is unlimited, but shall not be  excessive. 64. Sentence of imprisonment for non- payment of fine In every case, of an offence punishable with  imprisonment as well as fine, in which the  offender is sentenced to a fine, whether with or  without imprisonment, and in every case of an  offence punishable with imprisonment or fine,  or] with fine only, in which the offender is  sentenced to a fine, it shall be competent to  the Court which sentences such offender to  direct by the sentence that, in default of  payment of the fine, the offender shall suffer  imprisonment for a certain term, which  imprisonment shall be in excess of any other  imprisonment to which he may have been  sentenced or to which he may be liable under  a commutation of a sentence. 65. Limit to imprisonment for non-payment  of fine, when imprisonment and fine  awardable The term for which the Court directs the  offender to be imprisoned in default of  payment of a fine shall not exceed one-fourth  of the term of imprisonment which is the

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maximum fixed for the offence, if the offence  be punishable with imprisonment as well as  fine. 66. Description of imprisonment for non- payment of fine The imprisonment which the Court imposes in  default of payment of a fine may be of any  description to which the offender might have  been sentenced for the offence. 67. Imprisonment for non-payment of fine,  when offence punishable with fine only If the offence be punishable with fine only, the  imprisonment which the Court imposes in  default of payment of the fine shall be simple,  and] the term for which the Court directs the  offender to be imprisoned, in default of  payment of fine, shall not exceed tile following  scale, that is to say, for any term not exceeding  two months when the amount of the fine shall  not exceed fifty rupees, and for any term not  exceeding four months when the amount shall  not exceed one hundred rupees, and for any  term not exceeding six months in any other  case. 68. Imprisonment to terminate on payment  of fine The imprisonment which is imposed in default  of payment of a fine shall terminate whenever  that fine is either paid or levied by process of  law.

69. Termination of imprisonment on  payment of proportional part of fine If, before the expiration of the term of  imprisonment fixed in default of payment,  such a proportion of the fine be paid or levied  that the term of imprisonment suffered in  default of payment is not less than  proportional to the part of the fine still unpaid,  the imprisonment shall terminate. 70. Fine leviable within six years or during  imprisonment-Death not to discharge  property from liability The fine, or any part thereof which remains  unpaid, may be levied at any time within six  years after the passing of the sentence, and if,  under the sentence, the offender be liable to  imprisonment for a longer period than six  years, then at any time previous to the  expiration of that period; and the death of the  offender does not discharge from the liability  any property which would, after his death, be  legally liable for his debts. 17.             Section 30, CrPC provides for \021sentence of  imprisonment in default of fine\022.  It is also relevant and  reads as under; 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 authorised by law:   Provided that the term-

(a)     is not in excess of the powers of the

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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.

18.             We may as well refer to Section 25 of the  General Clauses Act, 1897 which states; 25. Recovery of fines.- Sections 63 to 70 of  the Indian Penal Code (45 of 1860) and the  provisions of the Code of Criminal Procedure (5  of 1898) for the time being in force in relation  to the issue and the execution of warrants for  the levy of fines shall apply to all fines imposed  under any Act, Regulation, rule or bye-law  unless the Act, Regulation, rule, or bye-law  contains an express provision to the contrary. 19.             From the above provisions, in our opinion, it is  clear that if a person commits any offence under IPC, he  can be punished and when such offence is punishable  with substantive sentence and fine, or substantive  sentence or fine, or fine only, in default of payment of  fine, he can be ordered to undergo imprisonment. Section  30, CrPC prescribes maximum period for which a Court  may award imprisonment in default of payment of fine. 20.             But more important issue is whether the above  statutory provisions would apply to special laws and  offences committed by a person not covered by IPC. In  the present case, we are concerned with the provisions of  Narcotic Drugs and Psychotropic Substances Act, 1985  which is a special law. There is no express power in a  Court to order imprisonment in default of payment of  fine. But to us, the law is well-settled and it has been  held since more than a century that such an order can  be passed by a competent Court of law having power to  impose fine as one of the punishments. 21.             In Queen-Empress v. Yakoob Sahib, ILR (1899)  22 Mad 238, the accused was convicted for an offence  under Section 3(10) of the Towns Nuisances Act  (Madras), 1889 (Act III of 1889) and was ordered to pay a  fine of rupees eight and in default of payment, to undergo  simple imprisonment for one week.  The relevant  provision of law empowered the Court to award \023fine not  exceeding Rs. 50 or imprisonment of either description  not exceeding eight days\024. 22.             Benson, J. observed that the question was  whether the award of a week\022s imprisonment in default of  payment of fine was legal.  His Lordship considered the  relevant provisions of IPC and stated;      \023The question is whether the award of a  week\022s imprisonment in default of payment of  the fine is legal, or whether the term of  imprisonment in default is limited by Section  65, Indian Penal Code, to one-fourth of the  term (eight days) of imprisonment awardable  for the offence under Section 3 of Act III of

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1889, i.e., to two days in the present case.  Section 67, Indian Penal Code, has obviously  no application to the case. It refers solely to  the cases in which the offence is punishable  with fine only. The present case is punishable  with imprisonment or with fine at the option of  the Magistrate, though not with both. Section  65, Indian Penal Code, however, in my opinion,  is applicable to such a sentence. The words  \023punishable with imprisonment as well as fine\024  in that Section must be understood in the  same sense as those words bear in Section 64.  The wording of Section 64, it must be  admitted, is not happy, but I am of opinion  that the Legislature intended by it to  provide for the award of imprisonment in  default of payment of fine in all cases in  which fine can be imposed. Those cases the  section divides into three classes, viz., offences  (1) \023punishable with imprisonment as well as  fine,\024 (2) \023punishable with imprisonment and  fine\024 and (3) \023punishable with fine only\024. The  first of these classes in my opinion includes  two classes, viz., (a) offences like the present  punishable with imprisonment or fine in the  alternative, and (b) offences punishable, as  most of those under the Indian Penal Code are,  with imprisonment, or fine, or both,  cumulatively. Grammatically it would seem  also to include the second class, viz., offences  punishable with imprisonment and fine, but  this class is separately mentioned, probably  because reference was intended to cases in  which a substantive sentence of imprisonment  must be awarded, the fine, if any, being only in  addition thereto. The Legislature, by Section  64, having given the general power to impose  imprisonment in default of payment of fine,  then proceeded to lay down limits to that  power. Section 65 limited the power in the first  class of cases, Section 67 in the third class. If  the second class is, as I think it is, included in  the first, then Section 65 applies to it also; but,  in any case, Section 33, Criminal Procedure  Code, imposes the same limit in unmistakable  terms. It seems to me unreasonable to suppose  that the Legislature did not intend to include  cases like the present in the first class since  the result would be that, in such cases alone,  there would be no limit save that of the general  power of a Magistrate, and a first-class  Magistrate in a case like the present could  award two years\022 rigorous imprisonment in  default of payment of a petty fine, though in all  other classes of cases his power is strictly  limited\024.    (emphasis supplied)             23.             In Sukhdeo Singh v. Calcutta Corporation, AIR  1953 Cal 41, A was convicted by the Municipal  Magistrate for keeping a buffalo within the municipal  limit without the prior permission of the Municipal  Board. He was, therefore fined Rs. 15 and in default, to  suffer simple imprisonment for one week.  It was  contended by A that in lieu of fine, the Magistrate could

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not have passed an order of sentence of imprisonment as  no such power had been given to him under the Calcutta  Municipal Act, 1923 [Act III of 1923].  The Court,  however, after considering Sections 40, 41, 42 and 64 to  67, IPC came to the conclusion that the learned  Magistrate could order sentence of imprisonment in lieu  of fine by virtue of the said provisions. 24.             A similar question came up for consideration  before this Court before fifty years in Bashiruddin Ashraf  v. State of Bihar, 1957 SCR 1032. There a mutawalli was  charged for violating the provision of Section 58 of the  Bihar Wakfs Act, 1947 (Bihar Act VIII of 1948) for not  discharging the obligation enjoined upon him as a  mutawalli.  He was, therefore, convicted under Section  65(1) of the Act by the Divisional Magistrate, Patna and  was ordered to pay a fine of Rs. 100 and in default to  undergo simple imprisonment for 15 days.   Section 65(1)  read thus; 65 (1) If a mutawalli fails without reasonable  cause, the burden of proving which shall be  upon him, to comply with any order or  direction made or issued under clauses (i), (o)  or (q) of sub-section (2) of section 27 or under  section 56, to comply with the provisions of  sub-section (1) of section 57, sub-section (1) of  section 58, section 59 or section 60, or to  furnish any statement, annual account,  estimate, explanation or other document or  information relating to the waqf of which he is  mutawalli, which he is required or called upon  to furnish under any of the other provisions of  this Act, he shall be punishable with fine  which may extend, in the case of the first,  offence, to two hundred rupees and, in the  case of second or any subsequent offence, to  five hundred rupees.  

25.             It was contended on behalf of the mutawalli  that Section 65 did not provide for imprisonment in  default of payment of fine. He was, however, ordered to  suffer 15 days\022 simple imprisonment in default of  payment of fine which was illegal.  This Court considered  Section 33 of the Code of Criminal Procedure, 1898  (similar to Section 30 of the present Code of Criminal  Procedure, 1973) and Sections 40 and 67, IPC and held  that the contention had no force and it was open to the  Court to order imprisonment of the accused in default of  payment of fine. 26.             Though Section 25 of the General Clauses Act,  1897 was not referred to in Bashiruddin Ashraf, in our  opinion, bare reading of the said provision also makes it  explicitly clear and leaves no room for doubt that  Sections 63 to 70, IPC and the provisions of CrPC  relating to award of imprisonment in default of payment  of fine would apply to all cases wherein fines have been  imposed on an offender unless \021the Act, Regulation, Rule  or Bye-law contains an express provision to the contrary\022.  We are, therefore, unable to uphold the bald contention  of the appellant that in absence of specific provision to  order imprisonment in default of payment of fine in a  statute, a Court of law has no power to order  imprisonment of an offender who fails to pay fine and  such action would be illegal or without authority of law.   In our judgment, in absence of a provision to the  contrary, viz. that no order of imprisonment can be

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passed in default of payment of fine, such power is  explicit and can always be exercised by a Court subject  to the relevant provisions of IPC and CrPC. 27.             The next submission of the learned counsel for  the appellant, however, has substance. 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 \021otherwise\022.  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. 28.             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;      \023Death, 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  mulet which is ruinous to a labourer is easily  borne by a tradesman, and is absolutely unfelt  by a rich Zamindar.  It is impossible to fix any  limit to the amount of a fine which will not  either be so high as to be ruinous to the poor,  or so low as to be no object of terror to the  rich.  There are many millions in India who  would be utterly unable to pay a fine of fifty  rupees; there are hundreds of thousands from  whom such a fine might be levied, but whom it  would reduce to extreme distress; there are  thousands to whom it would give very little  uneasiness; there are hundreds to whom it  would be a matter of perfect indifference, and  who would not cross a room to avoid it.  The  number of the poor in every country exceeds in  a very great ratio the number of the rich.  The  number of poor criminal it is a matter of  absolute indifference whether the fine to which  he is liable to be limited or not, unless it be so  limited as to render it quite inefficient as a  mode of punishing the rich.  To a man who  has no capital, who had laid by nothing, whose  monthly wages are just sufficient to provide  himself and his family with their monthly rice,

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it matters not whether the fine for assault be  left to be settled by the discretion of the  Courts, or whether a hundred rupees be fixed  as the maximum.  There are no degrees in  impossibility.  He is no more able to pay a  hundred rupees than to pay a lac.  A just and  wise Judge, even if entrusted with a boundless  discretion will not, under ordinary  circumstances, would leave it quite in the  power of an unjust or inconsiderate Judge to  inflect on such an offender all the evil which  can be inflicted on him by means of fine \005.              It appears to us that the punishment of  fine is a pecuniary appropriate punishment for  all offences to which men are prompted by  cupidity; for it is a punishment which operates  directly on the very feeling which impels men  to such offences.  A man who has been guilty  of great offences arising from cupidity, of  forging a bill of exchange, for example, of  keeping a receptacle for stolen goods, or of  existence embezzlement, ought, we conceive, to  be so fined as to reduce him to poverty.  That  such a man should, when his imprisonment is  over, return to the enjoyment of three-fourths  of his property, a property which may be very  large and which may have been accumulated  by his offences, appears to us highly  objectionable. Those persons who are most  likely to commit such offences would often be  less deterred by knowing that the offender had  passed several years in imprisonment, than  encouraged by seeing him, after his liberation,  enjoying the far larger part of his wealth\024.  [see  Ratanlal & Dhirajlal, \021Law of Crimes\022; 26th  Edn.; (2007); pp.221-22]            29.             The Authors further stated;                    \023The next question which it became  our duty to consider was this : 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 aid,  or he may be imprisoned for a certain term,  such imprisonment 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.  Nothing could make such a system  tolerable except the constant interference of  some authority empowered to remit

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sentences; and such constant interference we  should consider as in itself an evil.  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 goal, appears to us to  be a very objectionable course.  The high  authority of Mr. Livingstone is here against  us.  He allows the criminal, if sentenced to a  fine exceeding one-fourth of his property, to  compel the Judge to commute the excess for  imprisonment at the rate of one day of  imprisonment for every two dollars of fine,  and he adds, that such imprisonment must  in no case exceed ninety days.  We regret that  we cannot agree with him; the object of the  penal law is to deter from offences, and this  can only be done by means of inflictions  disagreeable to offenders.  The law ought not  to inflict punishments unnecessarily severe;  but it ought not, on the other hand, to call  the offender into council with his Judges, and  to allow him an option between two  punishments.  In general, the circumstance  that he prefers one punishment raises a  strong presumption that he ought to suffer  the other.  The circumstance that the love of  money is a stronger passion in his mind than  the love of money is a stronger passion in his  mind than the love of personal liberty is, as  far as it goes, a reason for our availing  ourselves rather of his love of money than of  his love of personal liberty for the purpose of  restraining him from crime.  To look out  systematically for the most sensitive part of a  man\022s mind, in order that we may not direct  our penal sanctions towards that part of his  mind, seems an injudicious policy.                  \023We are far from thinking that the  course which we propose is unexceptionable;  but it appears to us to be less open to  exception that any other which has occurred  to us.  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 very 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\024        [See Ratanlal & Dhirajlal; supra; pp.226-27]            30.             The issue also came up for consideration in  some cases. In Emperor v. Mendi Ali, ILR 1941 All 608 :  AIR 1941 All 310, M was charged with an offence of

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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) \023with his own eyes committing adultery  with N\024. 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. 31.             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 \023and 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\022  rigorous imprisonment\024. 32.             Considering the facts, Braund, J. stated;      \023So 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  undergo 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\024.                                               (emphasis supplied)         33.             We may as well refer to a decision of this Court  in Palaniappa Gounder v. State of T.N. & Ors., (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. 34.             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. 35.             Speaking for the Court, Chandrachud, J. (as  His Lordship then was) said; \023But 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

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of the case. Economic offences are generally  visited with heavy fines because an offender  who has enriched himself unconsciously 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 wrote 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 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 Singh, AIR  1956 Bom 711, at p.714) but before imposing  the sentence of fine, particularly a heavy fine,  along with the sentence of death of 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 cases. As  observed by this Court in Adamji Umer Dalal v.  The State of Bombay, (1952) SCR 172,  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: "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 imprisonment is inflicted, an excessive fine  should not accompany it except in exceptional  cases" (p. 177). Though that case related to     an economic offence, this Court reduced       the sentence of fine from Rs. 42,300/- to       Rs. 4,000/-on the ground that due regard was  not paid by the lower Court to the principles  governing the imposition of a sentence of fine\024.            36.             We are mindful and conscious that the present  case is under the NDPS Act.  Section 18 quoted above  provides penalty for certain offences in relation to opium  poppy and opium.  Minimum fine contemplated by the  said provision is rupees one lakh [\021fine which shall not be  less than one lakh rupees\022].  It is also true that the  appellant has been ordered to undergo substantive  sentence of  rigorous imprisonment for ten years which is  minimum.  It is equally true that maximum sentence  imposable on the appellant is twenty years.  The learned  counsel for the State again is right in submitting that  clause (b) of sub-section (1) of Section 30, CrPC

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authorizes the Court to award imprisonment in default of  payment of fine up to one-fourth term of imprisonment  which the Court is competent to inflict as punishment for  the offence.  But considering the circumstances placed  before us on behalf of the appellant-accused that he is  very poor; he is merely a carrier; he has to maintain his  family; it was his first offence; because of his poverty, he  could not pay the heavy amount of fine (rupees one lakh)  and if he is ordered to remain in jail even after the period  of substantive sentence is over only because of his  inability to pay fine, serious prejudice will be caused not  only to him, but also to his family members who are  innocent.  We are, therefore, of the view that though an  amount of payment of fine of rupees one lakh which is  minimum as specified in Section 18 of the Act cannot be  reduced in view of the legislative mandate, ends of justice  would be met if we retain that part of the direction, but  order that in default of payment of fine of rupees one  lakh, the appellant shall undergo rigorous imprisonment  for six months instead of three years as ordered by the  trial court and confirmed by the High Court. 37.             For the reasons aforesaid, the appeal is partly  allowed, conviction recorded and sentence imposed on  the appellant to undergo rigorous imprisonment for ten  years is confirmed.  An order of payment of fine of rupees  one lakh is also upheld. But an order that in default of  payment of fine, the appellant shall undergo rigorous  imprisonment for three years is reduced to rigorous  imprisonment for six months. To that extent, the     appeal filed by the appellant is allowed.  If the appellant  has undergone substantive sentence of rigorous  imprisonment for ten years as also rigorous  imprisonment for six months as modified by us in default  of payment of fine, the appellant shall be set at liberty  forthwith unless he is required in any other offence.  If  the appellant has not completed the said period, he will  be released after the period indicated hereinabove is over.  The appeal is accordingly disposed of.