Paragraph numbers below are the court’s original numbering, recovered from the source text.
19. From the above provisions, in our opinion, it is clear that if a F 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 G 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 H the provisions ofNarcotic Drugs and Psychotropic Substances Act, 1985 SHANTILALv. STATE[C.K. THAKKER,J.] which is a special law. There is no express power in a Court to order A 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, B 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 fme of rupees eight and in default of payment, to undergo simple imprisonment for one week. The relevant provision oflaw empowered the Court to award "fine not exceeding Rs. 50 or imprisonment of either C description not exceeding eight days".
22. Benson, J. observed that the question was whether the award of a week's imprisomnent in default of payment of fine was legal. His Lordship considered the relevant provisions oflPC and stated; "The question is whether the award of a week's 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 1889, i.e., to two E 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, F however, in my opinion, is applicable to such a sentence. The words "punishable with imprisonment as well as fine" 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 G 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) "punishable with imprisonment as well as fine," (2) "punishable with imprisonment and fine" and (3) "punishable with fine only". H c (2007] 10 S.C.R. The first of these classes in my opinion includes two classes, viz., (a) offences like the present punishable with imp;isonment 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' rigorous imprisonment in default of payment of a petty fine, though in all other classes of cases his power is strictly limite,d". (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, G the Magistrate could 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. SHANTI LAL v. STATE [C.K. THAKKER,J.]
24. A similar question came up for consideration before this Court A before fifty years in BashiruddinAshrafv. 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 B 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 C (2) of section 27 or under section 56, to comply with the provisions of sub-section (1) of section 57, sub-section (I) 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 mutawa/li, which he is required D 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 E did not provide for imprisonment in default of payment of fine. He was, however, ordered to suffer 15 days' 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 F 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 G 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 'the Act, Regulation, Rule or Bye-law contains an express provision to the H A contrary'. We are, therefore, unabie to uphold the bald contention of the c\ 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 oflaw. In our judgment, in absence B of a provision to the contrary, viz. that no order of imprisonment can be 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 Cr PC. _;.__- c
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 'otherwise'. D 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 E 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 r … F 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; "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 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 SHANTILALv. STATE[C.K. THAKKER,J.] the character and magnitude of the offence. The mulet which is A 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 B 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 c 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 D capital, who had laid by nothing, whose monthly wages are just sufficient to provide himself and his family with their monthly rice, 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 E 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 …. 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 G of exchange, for example, of keeping a receptacle for stolen goods, or of existence embezzlement, ought, we conceive, to be so tined 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 H c 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". [see Ratanlal & Dhirajlal, 'Law of Crimes'; 26th Edn.; (2007); pp.221-22]
29. The Authors further stated; "The 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 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 'r .. SHANTI LAL v. STATE [C.K. THAKKER,J.] we cannot agree with him; the object of the penal law is to deter A 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 B prefers one punishment raises a strong presumption that he ought to suffer the other. The circumstance that the love of money is a ~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 c 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's mind, in order that we may not direct our penal sanctions towards that part of his mind, seems an injudicious policy. "We are far from thinking that the course which we propose is D -""'{ 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 E 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 F 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" ..:>- [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 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 H (2007] 10 S.C.R. A 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 of Rs.100 or to undergo rigorous imprisonment for one year. c
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 "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".
32. Considering the facts, Braund, J. stated; "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 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". (emphasis supplied)
33. We may as well refer to a decision of this Court in Palaniappa Gounder V. State of TN & Ors., [1977] 2 sec 634. In that case, p G 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. SHANTILALv. STATE[C.K. THAKKER,J.]
34. The Court considered the provisions oflPC as also CrPC and A ·- l 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; "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 the power to impose on the appellant a sentence of fine along with the sentence of life imprisonment the question still arises whether C 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 unconsciously or unjustifiably by violating economic laws can be assumed legitimately to possess the means to pay that fine. He must disgorge D 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 E 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 F Singh, AIR (1956) Born 711, at p.714) but before imposing the sentence of fine, particularly a heavy fine, along with the sentence of death oflife 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 G 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 H c (2007] 10 S.C.R. 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). Tbough 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".
36. We are mindful and conscious that the present case is under the NDPS Act. Section 18 quoted above provides penalty for certain offences D in relation to opium poppy and opium. Minimum fine contemplated by the said provision is rupees one lakh ['fine which shall not be less than one lakh rupees']. It is also true that the appellant has been ordered to r- 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 E in submitting that clause (b) of sub-section (1) of Section 30, CrPC 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; 'r F 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 ifhe 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 G 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 H shall undergo rigorous imprisonment for six months instead of three years SHANTILALv. STATE[C.K. THAKKER,J.] as ordered by the trial court and confinned 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 confinned. An order of payment of fine of rupees one lakh is also upheld. But an order that in default of payment of B 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 C 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. RP. Appeal disposed of. D