The Supreme Court has ruled that the court has implicit power to award
imprisonment in default of payment of fine even under the special laws
like the Narcotic Drugs and Psychotropic Substances Act, 1985 where
there is no such express power is provided.
A bench comprising Justice C K Thakker and Justice Altamas Kabir said,
“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”.
The court said an important and debatable question which arises for
its consideration is whether a court of law can order a convict to
remain in jail in default of payment of fine? It is true that Section
18 of the NDPS Act does not expressly say so. It merely provides for
imposition of sentence as also payment of fine.
The court noted that it is clear that if a person commits any offence
under the IPC, he can be punished and when such offence is punishable
with substantive sentence and fine, or substantive sentence or fine, or
fine alone, in default of payment of fine, he can be ordered to undergo
imprisonment. Section 30 of the CrPC prescribes a maximum period for
which a court may award imprisonment in default of payment of fine.
But the more important issue is whether the above stated statutory
provisions would apply to special laws and offences committed by a
person not covered by the IPC, said Justice Thakker, writing the
verdict.
However, the court said 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.
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, said court.
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, said apex court.
The court said the conviction recorded and sentence imposed on the
appellant, Shanti Lal, to undergo rigorous imprisonment (RI) for 10
years for possessing opium is confirmed. An order of payment of fine of
Rs 1 lakh is also upheld. But an order that in default of payment of
fine, the appellant shall undergo RI for three years is reduced to six
moths of RI, court ordered.
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