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.