(Prayer: Criminal Appeal filed under Section 374(2) of Criminal Procedure Code, to call for the entire records in connection with the C.C.No.15 of 2013 on the file of the learned Special Judge, II Additional Special Court under N.D.P.S Act, Chennai-104 and set aside the conviction and sentence imposed by the learned Special Judge, II Additional Special Court under N.D.P.S Act, Chennai-104 in C.C.No.15 of 2013, dated 25.01.2019.)
This appeal is filed by the accused No.2 in the case aggrieved by the judgment of the learned Special Judge, II Additional Special Court in N.D.P.S Act, Chennai-104, dated 25.01.2019 in C.C.No.15 of 2013, in and by which, the appellant was convicted for the offence under Section 8(c) read with Section 21(c) and 29 of the N.D.P.S Act and was sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo two years Rigorous Imprisonment and for the offence under Section 29 of the N.D.P.S Act and was sentenced to undergo ten years Rigorous Imprisonment and fine of Rs.1,00,000/- and in default of payment of fine, two years Rigorous Imprisonment.
2. The case of the prosecution is that on specific information on 28.10.2012, the officers went to the Central Railway Station and recovered 2 kgs Heroin from both the accused and thereafter also, recovered another 2 kgs from their residence. After completion of investigation, a complaint is duly filed before the Special Court and to bring home the charges, the prosecution examined P.Ws.1 to 13 and marked Exs.P-1 to P-60 and also produced M.Os.1 to 22. Upon being questioned about the material evidence on record and incriminating circumstances, the accused denied the same as false. But, however, no evidence was let in on behalf of the defence. The Trial Court, thereafter, proceeded to hear the learned Special Public Prosecutor for the prosecution and the learned Counsel for the accused and by a judgment, dated 25.01.2019, found the accused guilty and sentenced them as above. Aggrieved by the same, the second accused has preferred the present appeal.
3. Even though the learned Counsel for the appellant started arguing on merits, considering the fact that the accused have undergone about the 9 years 11 months sentence, restricted his submissions only on the sentence. The learned Counsel submitted that even though only minimum fine amount of Rs.1,00,000/- is imposed in respect of each offence, the accused is unable to pay the fine amount. From the very fact that for the past nine years, is unable to pay the fine amount itself would demonstrate the inability. As a matter of fact, the second accused is from Mumbai. There is no person to help him and is unable him to pay the fine. Under these circumstances, the learned Counsel, relying upon the pronouncements of this Court in similar cases in S.Edmand and Anr. Vs. State rep. By the Intelligence Officer, N.C.B, South Zonal Unit, Chennai (NCB F.No.48/1/08/2006-NCBMDS) (Crl.A.Nos.161 and 281 of 2014), N.Kandeepan and Anr. Vs. State rep. By the Intelligence Officer, N.C.B, South Zone, Chennai (Crl.A.Nos.528 of 2013 and 552 of 2012), T.Udayachandran @ Ramesh Vs. State rep. by the Intelligence Officer (CDJ 2012 MHC 1209), V.Vettichelvan Vs. Central rep. By the Senior Intelligence Officer, Directorate of Revenue Intelligence (CDJ 2009 MHC 5356), Rajapandi and Anr. Vs. State rep. By the Inspector of Police, Chennai (Crime No.91/12) (CDJ 2021 MHC 5821), Shahejadkhan Mahebubkhan Pathan Vs. State of Gujarat (AIR 2013 SC (Criminal))and also the latest pronouncement of the Hon'ble Supreme Court in Dayalu Kashyap Vs. The State of Chhattisgarh (2022 LiveLaw (SC) 100), would submit that the default sentence alone may be considered by this Court considering the age of the petitioner and the fact that he is unable to pay the fine amount.
4. Per contra, the learned Special Public Prosecutor would submit that only the minimum fine amount has been imposed by the Trial Court and if the accused is unable to pay the fine amount, he supposed to undergo the default sentence. Therefore, the prayer of the learned Counsel for the appellant need not be acceded to.
5. I have considered the rival submissions made on either side and perused the material records of the case. Considering the fact that the prayer is made only in respect of the default sentence, considering the dictum of this Court in the earlier judgments, I am of the view that the appellant/accused has demonstrated his inability to pay the fine. In such cases, as per the pronouncements in the earlier judgments, this Court can consider appropriately the default sentence. After considering the facts and circumstances of this case, I am of the view that the default sentence of one month each in respect of each of the offence to be undergone after the substantial imprisonment period of ten years, consecutively one month after the other, thus totalling 10 years 2 months Rigorous Imprisonment.
6. In view thereof, this Criminal Appeal is partly allowed on the following terms:-
(i) The conviction and substantive sentence of imprisonment and fine amount imposed by the learned Special Ju
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dge, II Additional Special Court under N.D.P.S Act, Chennai-104 vide order, dated 25.01.2019 in C.C.No.15 of 2013 is confirmed. The default sentences for non payment of fine alone is modified from two years Rigorous Imprisonment to that of one month Rigorous Imprisonment in respect of each of the offenses; (ii) The default sentence would run only after the expiry of the substantive sentence of ten years and the default sentence in respect of both counts to run consecutively one after the other so that the appellant undergoes the total punishment of 10 years 2 months.