SHAHEJADKHAN MAHEBUBKHAN PATHANversusSTATE OF GUJARAT

                    [2012] 8 S.C.R. 1177


       SHAHEJADKHAN MAHEBUBKHAN PATHAN                           A
                              v.
                   STATE OF GUJARAT
            (Criminal Appeal No. 1592 of 2012)

                     OCTOBER 5, 2012
                                                                 B
      [P. SATHASIVAM AND RANJAN GOGOi, JJ.]

     Narcotic Drugs and Psychotropic Substances Act, 1985
- ss. B(c), 21 and 29 - Accused-appellants convicted by
courts below for carrying commercial quantity of brown sugar C
(narcotic substance) and sentenced to RI for 15 years -
Prayer before Supreme Court for reduction of the sentence -
Held: The appellants were first time offenders and there was
no past antecedent about their involvement in offence of like
nature on earlier occasions - In view of the same, while o
confirming the conviction of appellants, their sentence
reduced to 10 years, the minimum prescribed sentence under
the relevant provisions of the Act - Government Notification
No. S0.1055 (E) dated 19.10.2001 - Sentence I Sentencing.

     Narcotic Drugs and Psychotropic Substances Act, 1985 E
- ss. B(c), 21 and 29 - Accused-appellants convicted by
courts below for carrying commercial quantity of brown sugar
(narcotic substance), sentenced to RI for 15 years and
directed to pay fine of Rs.1.5 lakh, in default, to further undergo
RI for 3 years - Prayer before Supreme Court for modification F
of the default sentence - Held: When default sentence is
imposed, a person is required to undergo imprisonment either
because he is unable to pay the amount of fine or refuses to
pay such amount - It is the duty of the Court to keep in view
the nature of offence, circumstances in which it was committed, G
the.position of the offender and other relevant considerations
before ordering the offender to suffer imprisonment in default
of payment of fine - In the instant case, considering the
circumstances, viz., the appellants are very poor and have to
                             1177                                H
    1178     SUPREME COURT REPORTS                 [2012] 8 S.C.R.


A maintain their family, it was their first offence and if they fail
  to pay the amount of fine as per the order of the trial court,
  they have to remain in jail for a period of 3 years in addition
  to the period of substantive sentence, serious prejudice will
  be caused not only to them but also to their family members
B who are innocent - The ends of justice would be met if it is
  ordered that in default of payment of fine of Rs.1.5 lakhs, the
  appellants are directed to undergo RI for 6 months instead
  of 3 years as ordered by the trial court and confirmed by the
  High Court - Government Notification No. SO. 1055 (E) dated
C 19. 10.2001 - Code of Criminal Procedure, 1973 - s.30 -
  Penal Code, 1860 - ss. 63 to 70 - Sentence I Sentencing -
  Default sentence.

       On a tip-off, the Narcotic Cell arrested the two
  appellants allegedly for carrying 500 grams brown sugar
D (narcotic substance). The trial court, after considering the
  Government notification No. S0.1055 (E) dated 19.10.2001
  and the provisions of the Narcotic Drugs and
  Psychotropic Substances Act, 1985, held that the quantity
  of the narcotic substance (brown sugar) fell under the
E head "Commercial Quantity" and convicted the
  appellants under Sections B(c),-21 and 29 of the NDPS
  Act and sentenced them to suffer rigorous imprisonment
  (RI) for 15 years. Taking note of the fact that the
  appellants belong to the State of Madhya Pradesh and
F were carrying such commercial quantity of brown sugar
  to the State of Gujarat for do'ing business, the trial court
  also imposed a fine of Rs. 1.5 lakhs each, in default, to
  further undergo RI for 3 years. The order was upheld by
  the High Court and therefore the present appeals.
G
       The appellants did not seriously challenge the
    conviction, however, prayed for reduction of sentence
    and also prayed for modification of default sentence
    awarded by the trial court and confirmed by the High
    Court.
H
   SHAHEJADKHAN MAHEBUBKHAN PATHAN v.             1179
            STATE OF GUJARAT
    Disposing the appeals, the Court                       A
    HELD:1. In view of the limited relief prayed for and
considering the relevant and acceptable materials placed
by the prosecution in support of their case, there is no
need to traverse the finding relating to conviction,
                                                         8
accordingly, the same is confirmed. [Para 7] [1183-F]
Sentence:
     2. For offences punishable under Sections 8(c), 21
and 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985, the minimum sentence prescribed C
is 10 years which may extend to 20 years with fine. In the
instant case, both the appellants are first time offenders
and there is no past antecedent about their involvement
in offence of like nature on earlier occasions. In view of
the same, while confirming the conviction, the sentence D
is reduced to 10 years which is the minimum prescribed
sentence under the relevant provisions of the NDPS Act.
[Paras 8, 9] [1184-C, F-G]
    Ba/winder Singh vs. Asstt. Commr., Customs & Central   E
Excise (2005) 4 SCC 146 - relied on.
Default Sentence:
     3.1. 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. If sentence is F
imposed, undoubtedly, an offender must undergo unless
it is modified or varied in part or whole in the judicial
proceedings. However, the imprisonment ordered in
default of payment of fine stands on a different footing.
When such default sentence is imposed, a person is G
required to undergo imprisonment either because he is
unable to pay the amount of fine or refuses to pay such
amount. Accordingly, he can always avoid to undergo
imprisonment in default of payment of fine by paying
such an amount. In such circumstance, it is the duty of H
    1180   SUPREME COURT REPORTS               [2012] 8 S.C.R.


A 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 before
  ordering the offender to suffer imprisonment in default of
  payment of fine. The provisions of Sections 63 to 70 of
B IPC make it clear that an amount of fine should not be
  harsh or excessive. Also where a substantial term of
  imprisonment is inflicted, an excessive fine should not be
  imposed except in exceptional cases. [Para 12) [1190-E-
  H; 1191-A]
C      3.2. Section 30 CrPC speaks about sentence of
  imprisonment in default of fine. Clause (b) of sub-section
  (1) of Section 30 CrPC authorizes the Court to award
  imprisonment in default of fine up to 1/4th of the term of
  imprisonment which the Court is competent to inflict as
D punishment for the offence. However, considering the
  circumstances, viz., the appellants-accused are very poor
  and have to maintain their family, it was their first offence
  and if they fail to pay the amount of fine as per the order
  of the trial court, they have to remain in jail for a period
E of 3 years in addition to the period of substantive
  sentence because of their inability to pay the fine, serious
  prejudice will be caused not only to them but also to their
  family members who are innocent. The ends of justice
  would be met if it is ordered that in default of payment of
F fine of Rs.1.5 lakhs, the appellants shall undergo RI for 6
  months instead of 3 years as ordered by the trial court
  and confirmed by the High Court. [Para 14] [1191-D; 1192-
  A-DJ
     Shanti/al vs. State of M.P. (2007) 11 SCC 243: 2007 (10)
G SCR 727 - relied on.
    Conclusion:
      4. The conviction recorded is confirmed and
  sentence imposed upon the appellants to undergo RI for
H 15 years is modified to 10 years. The order of payment
  SHAHEJADKHAN MAHEBUBKHAN PATHAN v.                 1181
           STATE OF GUJARAT

of fine of Rs.1.5 lakhs each is also upheld but the order A
that in default of payment of fine, the appellants shall
undergo RI for 3 years is reduced to RI for 6 months.
Since the appellants have already served nearly 12 years
in jail, as per the modified period of sentence in respect
of default in payment of fine, there is no need for them B
to continue in prison. The appellants shall be set at
liberty forthwith unless they are required in any other
offence. However, for any reasons, if the appellants have
not completed the modified period of sentence, they will
be released after the period indicated hereinabove is c
over. [Para 15) [1192-E-G]
                    Case Law Reference:
    (2005) 4 sec 146            relied on         Para 8
    2007 (10) SCR 727           relied on         Para 11     D
    CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 1592 of 2012.

    From the Judgment & Order dated 8.7.2002 of the High
Court of Gujarat at Ahmedabad in Criminal Appeal No. 11 of E
2002.

                           WITH

Crl. Appeal No. 1593 of 2012.                                 F
    Dr. Sushil Balwada for the Appellant.

     K. Enatoli Serna, Amit Kumar Singh, Hemantika Wahi for
the Respondent.
                                                              G
    The Judgment of the Court was delivered by

    P. SATHASIVAM, J. 1. Delay condoned.

    2. Leave granted.
                                                              H
    1182     SUPREME COURT REPORTS                  [2012] 8 S.C.R.


A        3. These appeals are directed against the final judgment
    and order dated 08.07 .2002 passed by the High Court of
    Gujarat at Ahmedabad in Criminal Appeal Nos. 11 and 75 of
    2002 whereby the Division Bench of the High Court dismissed
    the appeals filed by the appellants herein and affirmed the
B   judgment dated 10.12.2001 passed by the Additional Sessions
    Judge, Ahmedabad City in Sessions Case No. 381 of 2000.

         4. Brief facts:

        (a) On 04.09.2000, on a tip-off, the Narcotic Cell, Police
c   Bhavan, Gandhinagar, Gujarat arrested two persons, viz.,
    Shahejadkhan Mahebubkhan Pathan and Narendrasinh
    Chandrashekhar Rai (the appellants herein) carrying 500 grams
    brown suga~ (narcotic substance) at Kalupur Railway Station,
    Ahmedabad while they were traveling in Sarvodaya Express
D   from Delhi to Ahmedabad through Ratlam.

         (b} After following the procedure regarding search and
    seizure and after registering the case under the Narcotic Drugs
    and Psychotropic Substances Act, 1985 (in short 'the NDPS
E   Act'), the samples were sent to the Forensic Science
    Laboratory (FSL) for examination.

        (c) On 19.12.2000, after filing of the charge sheet, the case
    was committed to the Court of Session and numbered as
    Sessions Case No. 381 of 2000.
F
         (d) The Additional Sessions Judge, Ahmedabad City, after
    considering the notification of the Government being No.
    S0.1055 (E) dated 19.10.2001 and the provisions of the
    NDPS Act held that the quantity of the narcotic substance
G   (brown sugar) falls under the head "Commercial Quantity" and
    found the appellants guilty for the offence punishable under
    Sections 8(c}, 21 and 29 of the NDPS Act and sentenced them
    to suffer rigorous imprisonment (RI) for 15 years. The Additional
    Sessions Judge, after taking note of the fact that the appellants
H
   SHAHEJADKHAN MAHEBUBKHAN PATHAN v.                     1183
     STATE OF GUJARAT [P. SATHASIVAM, J.]

belong to the State of Madhya Pradesh and were carrying such A
commercial quantity of brown sugar to the State of Gujarat for
doing business, also imposed a fine of Rs. 1.5 lakhs each, in
default, to further undergo RI for 3 years.

    (e) Being aggrieved, the appellants herein filed Criminal B
Appeal Nos. 11 and 75 of 2002 before the High Court of
Gujarat. The Division Bench of the High Court, by impugned
order dated 08.07.2002, dismissed the said appeals.
Questioning the same, the appellants herein have filed separate
appeals by way of special leave before this Court.
                                                                    c
      5. Heard Dr. Sushil Balwada, learned counsel for the
appellants-accused and Ms. K. Enatoli Serna, learned' counsel
for the respondent-State.

    6. Learned counsel appearing for both the appellants D
before the High Court as well as before this Court, considering
the materials placed by the prosecution, has not seriously
canvassed the conviction, however, taking note of various
aspects including the age and poorness, prayed for reduction
of sentence. In addition to the same, learned counsel also E
prayed for modification of default sentence awarded by the
Additional Sessions Judge, Ahmedabad City and confirmed by
the High Court.

     7. In view of the limited relief prayed for and considering
the relevant and acceptable materials placed by the                 F
prosecution in support of their case, there is no need to
traverse the finding relating to conviction, accordingly, we
hereby confirm the same.

Sentence:                                                           G
      8. Coming to the question of sentence, it is not in dispute
that the appellants were charged for possession of brown sugar
in the' quantity of 500 grams which falls under the head
"commercial quantity". As per the notification of the Government
                                                                    H
    1184     SUPREME COURT REPORTS                   [2012] 8 S.C.R.


A  being No. S0.1055(E) dated 19.10.2001, it is necessary to
   consider the same in terms of Section 21 (c) of the NDPS Act.
  The trial Judge, taking note of the fact that the appellants were
   carrying such commercial quantity of brown sugar to the State
   of Gujarat from the State of Madhya Pradesh, awarded RI for
B 15 years and also directed them to pay a fine of Rs.1.5 lakhs
  each, in default, to further undergo RI for 3 years. For offences
   punishable under Sections 8(c), 21 and 29 of the NDPS Act,
   undoubtedly, the minimum sentence prescribed is 10 years
  which may extend to 20 years with fine. In this regard, ii is useful
c to refer a decision of this Court in Ba/winder Singh vs. Asstt.
   Commr., Customs & Central Excise, (2005) 4 SCC 146. The
  appellant therein was convicted for offences punishable under
  Sections 18, 22, 23, 25, 28, 29 and 30 of the NDPS Act and
  Section 120-B of the Indian Penal Code, 1860 (in short 'the
  IPC'). This Court, having regard to the facts and circumstances
0
  and taking note of the fact that the appellant therein was
  convicted for the said offences for the first time (emphasis
  supplied), while confirming the conviction, reduced the sentence
  from 14 years to 10 years for the offences under the NDPS Act
  and the IPC.
E
        9. It is projected before us that both the appellants are first
  time offenders and there is no past antecedent about their
  involvement in offence of like nature on earlier occasions. It is
  further brought to our notice, which is also not disputed by the
F learned counsel for the State that as on date, the appellants
  had served nearly 12 years in jail. In view of the same and in
  the light of the decision of this Court, in Ba/winder Singh (supra),
  while confirming the conviction, we reduce the sentence to 10
  years which is the minimum prescribed sentence under the
G relevant provisions of the NDPS Act.

    Default Sentence:

         10. Coming to the next claim of the appellants, i.e., default
    sentence, the trial Judge, taking note of various aspects
    •nciuding the fact that the appellants were carrying commercial
   SHAHEJADKHAN MAHEBUBKHAN PATHAN v.                       1185
     STATE OF GUJARAT [P. SATHASIVAM, J.]

quantity of brown sugar from the State of Madhya Pradesh to          A
the State of Gujarat for doing business, imposed a fine of Rs.1.5
lakh each, in default, ordered to undergo RI for 3 years.

     11. According to the learned counsel for the appellants, the
default sentence, i.e., 3 years, is very harsh and the Additional B
Sessions Judge ought not to have imposed such sentence for
non-payment of fine amount. In view of the same, he relied on
a decision of this Court in Shanti/a/ vs. State of M.P. (2007)
11 SCC 243 wherein this Court considered the imprisonment
in default of payment of fine with reference to various provisions
of IPC and the Code of Criminal Procedure, 1973 (in short 'the C
Code') and held as under:

     "31 ........... 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            o
     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     E
     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,    F
     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.
                                                                     G
     32. 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, there:ore, observed:
                                                                     H
    1186   SUPREME COURT REPORTS                    [2012] 8 S.C.R.


A             "Death, 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
B      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 authors further stated: (Ratanlal & Dhirajlal at pp.
c      226-27)

               ..... 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,
D      naturally occurred to us. The offender may be imprisoned
       till the fine is paid, 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
E      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
F
       not sometimes impose a fine which shall be beyond the
       means of an offender......

             ..... On the other hand, to sentence an offender to fine
       and to a certain fixed term of imprisonment in default of
G      payment, and then to leave it to himself to determine
       whether he will part with his money or lie in gaol, appears
       to us to be a very objectionable course .....

            ..... We propose that, at the time of imposing a fine,
H      the Court shall also fix a certain term of imprisonment
SHAHEJADKHAN MAHEBUBKHAN PATHAN v.                       1187
  STATE OF GUJARAT [P. SATHASIVAM, J.]

which the offender shall undergo in default of payment. In A
fixing this term, the Court will in no case be suffered to
exceed a certain maximum, which will vary 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- B
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."

33. The issue also came up for consideration in some C
cases. In Emperor v. Mendi Ali, AIR 1941 All 310 M was
charged with an offence of 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 D
sudden provocation as he saw her (his wife) "with his own
eyes committing adultery with N". 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 E
of Rs 100 or to undergo rigorous imprisonment for one
year.

 34. In a suo motu revision, the High Court observed that
 the Sessions Judge had awarded maximum term of                   F
 sentence on M for the offence for which he was found guilty
 "and 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' rigorous
 imprisonment."
                                                                  G
 35. Considering the facts, Braund, J. stated: (Mendi Ali
 case, AIR p. 311)

 "So 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        H
    1188   SUPREME COURT REPORTS                   [2012] 8 S.C.R.


A       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 under_go a yet further
       term of imprisonment. And, in my judgment, without
       venturing to say whether it is a course which is strictly in
B      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 undergone in default
       will bring the aggregate sentence of imprisonment to more
       than the maximum term of imprisonment sanctioned by the
c      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.'

       36. We may as well refer to a decision of this Court in
D      Palaniappa Gounder v. State of T.N. (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
E      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.

       37. The Court considered the provisions of IPC as also
F      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.

       38. Speaking for the Court, Chandrachud, J. (as His
       Lordship then was) said: (SCC pp. 638-39, para 9)
G
              "9. But 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
H             the power to impose on the appellant a sentence
SHAHEJADKHAN MAHEBUBKHAN PATHAN v.                    1189
  STATE OF GUJARAT [P. SATHASIVAM, J.]

      of fine along with the sentence of life imprisonment     A
      the question still arises whether a sentence of fine
      of Rs 20,000 is justified in the circumstances of the
      case. Economic offences are generally visited with
      heavy fines because an offender who has enriched
      himself unconscionably or unjustifiably by violating     B
      economic laws can be assumed legitimately to
      possess the means to pay that fine. He must
      disgorge his ill-gotten wealth. But quite different
      considerations would, in the generality of cases,
      apply to matters of the present kind. Though there       C
      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 to serve any
                                                               0
      social purpose. In fact, the common trend of
      sentencing is that even a sentence 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      E
      offence of murder is wholly 'inapposite' (see, for
      example, State v. Pandurang Tatyasaheb Shinde,
      AIR 1956 Born. 711 at p. 714), but before imposing
      the sentence of fine, particularly a heavy fine, along
      with the sentence of death or life imprisonment, one     F
      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
      case. As observed by this Court in Adamji Umar
      Dalal v. State of Bombay, AIR 1952 SC 14                 G
      determination of the right measure of punishment
      i~ often a point of great difficulty and no hard-and-
      f;ist rule can be laid down, it being a matter of
      ~iscretion which is to be guided by a variety of
      considerations but the Court must always bear in         H
    1190     SUPREME COURT REPORTS                    [2012] 8 S.C.R.


A               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: (AIR p. 16, para 5)

                 '5 .... In imposing a fine it is necessary to have as
B
         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.'
c
         Though that case related to an economic offence, this
         Court reduced the sentence of fine from Rs 42,300 to Rs
         4000 on the ground that due regard was not paid by the
         lower court to the principles governing the imposition of a
D        sentence of fine."

          12. It is clear and reiterated that the term of imprisonment
    in default of payment of fine is not a sentence. To put ii clear, it
    is a penalty which a person incurs on account of non-payment
    of fine. On the other hand, if sentence is imposed, undoubtedly,
E   an offender must undergo unless it is modified or varied in part
    or whole in the judicial proceedings. However, the
    imprisonment ordered in default of payment of fine stands on
    a different footing. When such default sentence is imposed, a
    person is required to undergo imprisonment either because he
F   is unable to pay the amount of fine or refuses to pay such
    amount. Accordingly, he can always avoid to undergo
    imprisonment in default of payment of fine by paying such an
    amount. In such circumstance, we are of the view that it is the
    duty of the Court to keep in view the nature of offence,
G   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. The provisions of
H   Sections 63 to 70 of IPC make it clear that an amount of fine
    SHAHEJADKHAN MAHEBUBKHAN PATHAN v.                       1191
      STATE OF GUJARAT [P. SATHASIVAM, J.]

should not be harsh or excessive. We also reiterate that where       A
a substantial term of imprisonment is inflicted, an excessive fine
should not be imposed except in exceptional cases.

      13. While taking note of the above principles, we are
conscious of the fact that the present case _is under the NOPS
                                                                     8
Act and for certain offences, the Statute has provided minimum
sentence as well as minimum fine amount. In the earlier part
of our judgment, taking note of the fact that the appellants being
the first time offenders, we imposed the minimum sentence, i.e.,
10 years instead of 15 years as ordered by the trial Court. In       C
other words, the appellants have been ordered to undergo
substantive sentence of RI for 10 years which is minimum.

     14. In view of the above, it is relevant to mention Section
30 of the Code which speaks about sentence of imprisonment
in default of fine:                                                  D

    "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 authorized
    bylaw:
                                                                     E
    Provided that the term-

     (a)    is not in excess of the powers ofthe Magistrate
            under section 29;
                                                                     F
     (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             G
           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."                                                     H
    1192    SUPREME COURT REPORTS                   [2012] 8 S.C.R.


A It is clear that clause (b) of sub-section (1) of Section 30 of the
  Code authorizes the Court to award imprisonment in default of
  fine up to 1/4th of the term of imprisonment which the Court is
  competent to inflict as punishment for the offence. However,
  considering the circumstances placed before us on behalf of
B the appellants-ace.used, viz., they are very poor and have to
  maintain their family, it was their first offence and if they fail to
  pay the amount of fine as per the order of the Additional
  Sessions Judge, they have to remain in jail for a period of 3
   years in addition to the period of substantive sentence because
C of their inability to pay the fine, we are of the view that serious
   prejudice will be caused not only to them but also to their family
   members who are innocent. We are, therefore, of the view that
   ends of justice would be met if we order that in default of
   payment of fine of Rs.1.5 lakhs, the appellants shall undergo
   RI for 6 months instead of 3 years as ordered by the Additional
0
   Sessions Judge and confirmed by the High Court.

       15. For the reasons stated above, both the appeals are
  partly allowed. The conviction recorded is confirmed and
  sentence imposed upon the appellants to undergo RI for 15
E years is modified to 10 years. The order of payment of fine of
  Rs.1.5 lakhs each is also upheld but the order that in default of
  payment of fine, the appellants shall undergo RI for 3 years is
  reduced to RI for 6 months. Since the appellants have already
  served nearly 12 years in jail, we are of the view that as per
F the modified period of sentence in respect of default in payment
  of fine, there is no need for them to continue in prison. The
  appellants shall be set at liberty forthwith unless they are
  required in any other offence. It is further made clear that for
  any reasons, if the appellants have not completed the modified
G period of sentence, they will be released after the period
  indicated hereinabove is over.

         16. The appeals are allowed to the extent mentioned
     above.

 H B.B.B.                                       Appeals disposed of.