Holding

In the absence of an express bar, courts have implicit authority to impose imprisonment for default of fine under special statutes, and may exercise discretion to limit the term, as done here by reducing it to six months.

Summary

Shanti Lal was caught carrying 7 kg 60 g of contraband opium and was convicted under Sections 8 and 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The trial court sentenced him to ten years' rigorous imprisonment and a fine of Rs.1 lakh, with an additional three years' imprisonment for default of fine; the High Court affirmed this. On appeal, the Supreme Court examined whether a court can impose imprisonment for non‑payment of fine, especially under a special law, and whether the General Clauses Act and CrPC provisions apply. It held that, absent a contrary provision, courts possess an implicit power to order imprisonment in default of fine, and that this power may be exercised with discretion. Considering the appellant's poverty and carrier status, the Court reduced the default imprisonment from three years to six months while upholding the fine and the substantive ten‑year term.

Issues considered

Whether a court of law can order a convict to remain in jail in default of payment of fine.
Whether Section 25 of the General Clauses Act, 1897 and Section 30 of the Code of Criminal Procedure, 1973 apply to special statutes such as the NDPS Act.

Legislation cited

Code of Criminal Procedure, 1973s. 30
General Clauses Act, 1897s. 25
Indian Penal Code, 1860s. 63, s. 64, s. 65, s. 66, s. 67, s. 68, s. 69, s. 70
Narcotic Drugs and Psychotropic Substances Act, 1985s. 18, s. 8

Subjects

Imprisonment in default of fineNDPS ActSpecial lawFine enforcementCriminal sentencing discretionPoverty and sentencingSection 30 CrPCGeneral Clauses ActIPC sections 63-70

Judgment

SHANTI LAL A
V.
STATE OF M.P.

OCTOBER 8, 2007
B
[C.K. THAKKERAND ALTAMAS KABIR,JJ.]

- _1_ Narcotic Drugs and Psychotropic Substances Act, 1985:
s. 8 r/w s.18-Punishment for contravention in relation to
opium-Accused caught carrying contraband opium-Sentence often
c
years RI andfine ofRs. 1 lakh and in default ofpayment offine further
RIfor 3 years imposed by trial court and confirmed by High Court-
HELD: Both the courts were right in convicting the accused and
imposing the substantive sentence of 10 years RI and fine of Rs. 1 D
lakh-However, considering the facts inter alia that accused was
merely 'carrier' and a poor person unable to pay the fine, in default
ofpayment offine ofRs. l lakh accused shall undergo RIfor six months
instead of 3 years as ordered by trial court and confirmed by High
Court.
E
s. 18-Power of Court to impose imprisonment in default of
payment offine-HELD: Though s. 18 does not expressly provide for
an accused to remain in jail in default ofpayment offine and under
the provisions ofthe Act there is no express power in a court to order
imprisonment in default ofpayment offine, in absence ofa provision p
to the contrary, viz., that no order of imprisonment can be passed in
default ofpayment offine, such power is explicit and can always be
exercised by a court administering criminal justice-Indian Penal
Code, 1860-ss. 63-70-Code of Criminal Procedure, 1973-s.30-
General Clauses Act, 1897-s. 25-Administration ofCriminal Justice. G
Criminal Law:

Imprisonment in default ofpayment offine-Nature of-HELD:
727
H
728 SUPREME COURT REPORTS [2007] 10 S.C.R.
-~ -

A 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-Difference between penalty and sentence-
Explained.
The appellant was caught carrying in a bag 7 kg. and 60 gms.
B of contraband opium. The trial court convicted him u/s 8 read with
s.18 of the Narcotic Drugs and Psychotropic Substances Act, 1985,
and sentenced him to rigorous imprisonment for 10 years and to pay
a fine of rupees one lakh. In default of payment of fine he was ordered
to undergo rigorous imprisonment for three years. The High Court
C having confirmed the conviction and sentence, the appellant flied the
instant appeal.

Besides challenging the orders of the courts below on merits,
it was contended for the appellant that there was no provision in the
D Act to impose sentence in lieu of payment of fine and, therefore, no
substantive sentence could have been imposed on the accused in
default of payment of fine. Alternatively, it was pleaded that the
appellant having undergone the substantive sentence of 10 years,
and being a poor person unable to pay the fine, and merely a 'carrier'
E of the contraband opium not belonging to him, taking a liberal view,
the sentence of imprisonment in default of payment of fine may be
set aside.

Two questions were raised before the Court: Whether a court
oflaw can order a convict to remain in jail in default of payment of
F fine; and whether s.25 of the General Clauses Act, 1897 and s.30 of
the Code of Criminal Procedure would apply to special laws and
offences committed by a person not covered by IPC.

Disposing of the appeal, the Court

G HELD: 1.1. So far as the conviction recorded by the trial court
and confirmed by the High Court is concerned, the same does not
suffer from any infirmity. Both the courts considered the depositions
on oath of the prosecution witnesses and held that it was proved
beyond reasonable doubt that the appellant-accused was found in
H
SHANTILALv. STATE 729

possession of contraband opium weighing 7 kilos 60 grams. Both the A
Courts have also held that all the procedural requirements had been
complied with. The appellant-accused was not possessing on his
person contraband opium, but it was recovered from a bag. Taking
into account all the facts, both the courts were right in convicting
the accused. [Para 12] [736-C-F] B
1.2. As regards sentence, the appellant was carrying opium (7
kilos and 60 grams) and his case was covered by Section 18 of the
Narcotic Drugs and Psychotropic Substances Act, 1985. Minimum
sentence prescribed thereunder is rigorous imprisonment for ten
years which had been imposed by both the Courts below which is C
clearly in consonance with law. Hence, even that part of the order
suffers from no infirmity and is upheld. [Para 13] [736-F, G]
2.1. It cannot be said that in absence of specific provision to
order imprisonment in default of payment of fine in a statute, a Court D
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 of
law. In absence 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 E
the relevant provisions ofIPC and Cr PC. [Para 26] (744-A-B]

2.2. From various provisions oflPC, s.25 of the General Clauses
Act, 1897 and s.30 of the' Code of Criminal Procedure, 1973, it is
clear that if a person commits any offence under IPC, he can be
punished and when such offence is punishable with substantive F
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 Cr PC prescribes maximum period for
which a court may award imprisonment in default of payment of fine.
[Para 19] (740-F-G] G

2.3. Under the provisions of Narcotic Drugs and Psychotropic
Substances Act, 1985 which is a special law, there is no express power
in a court to order imprisonment in default of payment of fine, but
the law is well-settled and it has been held since more than a century
H
730 SUPREME COURT REPORTS [2007] 10 S.C.R.

A that such an order can be passed by a competent court oflaw having
power to impose fine as one of the punishments. It is true that Section
18 of the Act does not expressly provide for an accused to remain
in jail in default of payment of fine. It merely provides for imposition
of sentence as alsQ payment of fine. However, even in absence of
B 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. ...l--
[Paras 15, 16 and 20) [737-C-D; F, G; 741-A)
BashiruddinAshrafv. State of Bihar, [1957) SCR 1032, relied
C on.

Queen-Empress v. Yakoob Sahib, ILR (1899) 22 Mad. 238; and
Sukhdeo Singh v. Calcutta Corporation, AIR (1953) Cal. 41, referred
to.
D 3.1. However, 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
E judicial proceedings or 'otherwise'. A term ofimprisonment ordered
in default of payment of fine stands on a different footing. A person
is required to undergo imprisonment eith~r because he is unable to
pay the amount of fine or refuses to pay such amount. He, therefore, 'r-
can always avoid to undergo imprisonment in default of payment of
F fine by paying such amount. It is, therefore, not only the power, but
also 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 [Para 27) [744-C-E)

3.2. In the instant case, the conviction is under the NDPS Act.
Section 18 of the Act provides penalty for certain offences in relation
to opium poppy and opium and minimum fine contemplated
thereunder is rupees one lakl1. It is true that maximum sentence
H
_J·
SHANTILALv. STATE 731

imposable on the appellant is twenty years, but he has been ordered A
to undergo substantive sentence of rigorous imprisonment for ten
years which is minimum. Clause (b) of sub-section (1) of section 30
Cr PC authorizes the Court to award imprisonment in default of
payment of fine upto one-fourth term of imprisonment for the
offence. A general principle of law reflected in Sections 63-70 IPC B
is that an amount of fine should not be harsh or excessive.
-~ [Paras 28 and 36) [744-F; 750-C-E\

Palaniappa Gounderv. State ofTamil Nadu & Ors., [1977) 2 SCC
634, relied on.
c
Emperor v. Mendi Ali, ILR (1941) All 608: AIR (1941) All 310,
referred to.
3.3. 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, but considering the D
circumstances - the accused is very poor; 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 if he is ordered to remain in jail even after the period of
substantive sentence is over only because of hi~ inability to pay fine, E
serious prejudice will be caused not only to him, but also to his family
members who are innocent-ends of justice would be met by directing
- -..c that in default of payment of fine of rupees one lakh, the appellant
shall undergo rigorous imprisonment for six months instead of three
years as ordered by the trial court and confirmed by the High Court. F
[Para 36) [750-E-H; 751-A)

CRIMINAL APPELLATE n.JRISDICTION : Criminal Appeal No.
1375of2007.
From the Judgment and final Order dated 20.2.2004-of the High G
Court of Madhya Pradesh, Bench at Indore in Criminal Appeal No. 1258
of 1997.
Shiv Kumar Suri for the Appellant.
H
732 SUPREME COURT REPORTS (2007] 10 S.C.R.

~\
A Govind Goel, C.D. Singh, Maru Sagar Samanta Ray, Vairagya
.Vardhan, Sunny Chowdhary and Ram Naresh Yadav for the Respondent.
The Judgment of the Court was delivered by
C.K. THAKKER, J. 1. Leave granted.
B
2. The present appeal is filed by the appellant-accused against the
judgment and order dated February 20, 2004 passed by the High Court
of Madhya Pradesh (Indore Bench) in Criminal Appeal No. 1258 of
1997. By the said order, the High Court confirmed an order of conviction
and sentence recorded by the Second Additional Sessions Judge,
C Neemuch on November 20, 1997 in Special Criminal Case No. 12 of
1994. Both the courts convicted the appellant herein for an offence under
Section 8 read with Section 18 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as 'the Act') and ordered
him to undergo rigorous imprisonment for ten years and also to pay fine
D of rupees one lakh, in default to undergo rigorous iinprisonment for three
years.
3. The case of the prosecution was that on May 1, 1993, at about
4.00 a.m. in the morning, Station House Officer, Ratangarh received secret
E information through an informant that one Shantilal (appellant herein)
resident of village Kankariya Talai was carrying narcoti~ drug and was
expected to have come from the said village. He was to carry illegal opium
to Beju (Rajasthan). The information was recorded by the Officer in
Rojnamcha No. 997. The Rojnamcha was then sent for information to
F S.D:O.P., Jawad in accordance with Sectin 42 of the Act. ASI Gopal
Singh (PW7) proceeded with the police party along with panch-witnesses
Modi Ram (PW4) and Abdul Tazim (PW8) in a jeep. They were divided
in two groups and hid themselves. At about 7.00 a.m., the appellant was
seen taking out a bag used to carry fertilizer from a heap of grain from a
G field. When he was coming out of Bara with the bag in his hand, he was
intercepted by ASI Gopal Singh and caught with the assistance of police
party. Gopal Singh told the accused that it was suspected that he was
carrying contraband material and he had right to get search made by a
Gazetted Officer or by a Magistrate or by the witness himself i.e. Gopal
Singh. The appellant, however, opted his search by ASI Gopal Singh
H
_}
SHANTILALv. STATE[C.K.THAKKER,J.] 733

himself. Accordingly, search was conducted. From the person of the A
appellant-accused, nothing was found but the bag carried by him contained
7 kilos, 60 grams of narcotic drug. The substance was smelt by panch-
witnesses and it was found to be opium. The appellant was arrested on
the allegation that he was possessing unlawful opium. He was taken to
the Police Station where a crime was registered. Muddamal was deposited B
in Malkhana. After due investigation, charge-sheet was filed against the
--1 accused in Sessions Court, Mandsaur. The case was thereafter transferred
to the Additional Sessions Judge for disposal in accordance with law.
4. The accused pleaded not guilty to the charge. He contended that
he was falsely implicated in the case and claimed to be tried. He also C
contended that he was arrested four days prior to the incident.
5. The trial Court on the basis of the evidence adduced by the
prosecution and believing the testimony of PW 7-ASI Gopal Singh, PW
· 4-Modi Ram (panch I), PW8-Abdul Wazim (panch II) and other D
witnesses, held that the prosecution was successful in proving the case
against the accused. It also held that all procedural requirements had been
complied with and the accused was found to be in possession of 7 kilos
and 60 grams of opium and had committed an offence punishable under
Section 18 of the Act.
E
6. On question of sentence, the Court afforded hearing to the
accused and finally passed the following order;
"For violation of provisions of Section 8 of the NDPS Act,
the accused Shantilal S/o Devilal, aged 32 years, Rio. Village F
Kankariya Talai, P.S. Ratangarh, District Mandsaur being found
guilty of the offence punishable under Section 18 NDPS Act is
punished with rigorous imprisonment for 10 (ten) years with a fine
of rupees one lakh. In default of payment of fine, he shall undergo
a further rigorous imprisonment for 3 (three) years".
G
7. Being aggrieved by the said order, the appellant moved the High
Court of Madhya Pradesh. (Indore Bench) which confinned the order of
conviction as well as sentence recorded by the trial Court. It observed
that the trial Court had rightly held that the accused was carrying
contraband opium weighing 7 kilos and 60 grams and conviction recorded H
734 SUPREME COURT REPORTS [2007] 10 S.C.R.

A against him could not be said to be illegal. Regarding sentence, the High
Court observed that minimum sentence was awarded by the trial Court
and it did not call for interference. Accordingly, the appeal was dismissed.
8. The appellant challenged the orders passed by both the courts
by filing the present appeal. This Court on January 31, 2007 passed the
B following order;
"Delay condoned.
The Trial Court passed the judgment and order dated
2.11.1997 convicting and sentencing the accused under sections
c 8 and 18 of the NDPS Act of rigorous imprisonment of 10 years
and fine of Rs.1 lakh, and in default, further additional rigorous
imprisonment for three years. It is now stated by the learned
counsel for the petitioner that the petitioner has undergone the
sentence for nine years and six months and that he is not able to
D pay the amount of fine of Rs.I lakh. If the amount of fine is not
paid, as ordered by the Court, the petitioner has to undergo the
rigorous imprisonment of three years.
Issue notice to the respondent limited to the question as to
whether the sentence on default of payment of fine may be
E
reduced".
9. We have heard the learned counsel for the parties. The learned
counsel for the appellant contended that both the courts had committed r~
an error of law in convicting the appellant. From the evidence of the
F prosecution witnesses, it was not established that the appellant had
committed an offence under the Act and hence he is entitled to acquittal.
It was also submitted that mandatory requirements of the Act had not
been observed and on that ground also, conviction of the appellant cannot
stand. It was further argued that there is specific provision for imposition
G of fine on the accused in the Act, but there is no provision to impose
sentence in lieu of payment of fine and hence, no punishment could have
been awarded on the accused in default of payment of fine. To that extent,
therefore, the order is illegal and is liable to be set aside. The counsel
submitted that substantive sentence imposed on the appellant-accused
H under Section 18 of the Act was rigorous imprisonment for ten years.
_}
SHANTILALv. STATE [C.K. THAKKER,J.] 735

The appellant has already undergone the said sentence. But as the fine A
of rupees one lakh was imposed and in default of fine, the trial Court
ordered the appellant to undergo rigorous imprisonment for three years
that he is in jail as he could not pay the amount of fine. Since the Court
has no right to order substantive sentence in default of payment of fine,
the order passed by the Court imposing sentence and action of authorities B
in keeping the appellant in jail are illegal and unlawful and the appellant is
entitled to be set at liberty forthwith. Alternatively, it was submitted by
the learned counsel that the appellant is a poor person; he was mere
'carrier' and the contraband opium did not belong to him; it was his first
offence; he did not abscond after the incident and surrendered C
immediately; even after he was enlarged on bail, he never abused the
concession granted in his favour; he presented himself before the authority
oflaw as soon as he came to know about the dismissal of his appeal by
the High Court. He has his 'family' and even if it is held by this Court
that imprisonment can be ordered in default of payment of fine as held D
by both the courts, on the facts and in the circumstances of the case that
part of the order may be set aside and liberal view may be taken directing
the release of the appellant.
10. The learned Advocate for the State of Madhya Pradesh, on the
other hand, supported the order of conviction and sentence. He submitted E
that the trial Court appreciated the evidence on record and considered
the sworn testimony of prosecution witnesses, believed them and recorded
a finding of guilt against the appellant. It was also observed that the
procedural requirements had been complied with and prosecution was
successful in proving the guilt of the accused. Minimum substantive F
sentence as also minimum amount of fine (rigorous imprisonment for ten
years and payment of fine of rupees one lakh] was imposed on the
appellant. Such an order cannot be termed illegal or contrary to law. The
counsel submitted that even in absence of express provision to suffer
imprisonment in default of payment of fine, the Court must be conceded G
with the said power and it cannot be objected to. The learned counsel
contended that the provisions of the Code of Criminal Procedure, 1973
(hereinafter referred to as 'CrPC') make it clear that a Court of law can
award imprisonment in default of payment of fine up to one-fourth of the
term of imprisonment which a Court is competent to inflict as punishment H
736 SUPREME COURT REPORTS (2007] 10 S.C.R.

A for the offence. As under Section 18 of the Act (contravention in relation
to opium) a competent Court can order rigorous imprisonment on an
offender for a term which may extend to twenty years, imprisonment in
default of payment of fine could be ordered up to five years. The trial
Court, however, taking liberal view, imposed sentence in default of
B payment of fine of three years which could not be said to be unlawful or
otherwise illegal. The counsel, therefore, submitted that the appeal
deserves to be dismissed as no case has been made out by the appellant. J._--

11. We have given our anxious consideration to the rival submissions
of the parties and in our judgment, the appeal deserves to be partly
C allowed.
12. So far as the conviction recorded by the trial Court and
confirmed by the High Court is concerned, no infirmity has been pointed
out by the learned counsel so as to come to the conclusion that finding of
D guilt recorded by the trial Court and confirmed by the High Court can be
~
held wrong or illegal. Roth the courts considered the depositions on oath i

of the prosecution witnesses and held that it was proved beyond
reasonable doubt that the appellant-accused was found in possession of
contraband opium weighing 7 kilos 60 grams. Both the Courts have also
E held that all the procedural requirements had been complied with. The
appellant-accused was not possessing on his person contraband opium,
but it was recovered from a bag. Taking into account all the facts, in our
opinion, both the courts were right in convicting the accused. We are,
therefore, unable to uphold the argument of the learned counsel for the
F appellant that by holding the appellant guilty, the Courts below have
committed an error oflaw. To that extent, therefore, the contention has
no force and is accordingly negatived.
13. As regards sentence, the appellant was carrying opium (7 kilos
and 60 grams) and his case was covered by Section 18 of the Act.
G Minimum sentence prescribed thereunder is rigorous imprisonment for ten
years which had been imposed by both the Courts below which is clearly
in consonance with law. Hence, even that part of the order suffers from
no infirmity and must be upheld.
14. The learned counsel for the appellant, however, submitted that
H
SHANTI LAL v. STATE [C.K. THAKKER,J.] 737

the appellant has already undergone substantive sentence of ten years. A
From the order of January 31, 2007 extracted hereinabove, it appears
prima facie that what the appellant says is correct. This is further clear
from the application [Criminal Miscellaneous Application No. 1075 of
2006] filed on December 7, 2006. But it cannot be overlooked that the
appellant was also ordered to pay minimum fine of rupees one lakh as B
required by Section 18 of the Act, and in default, he was ordered to
undergo rigorous imprisonment for three years. Admittedly, the said period
is not over.
15. Thus, an important and debatable question which arises for our
consideration is whether a Court of law can order a convict to remain in C
jail in default of payment of fine? It is true that Section 18 of the Act does
not expressly say so. It merely provides for imposition of sentence as also
payment of fine. The said section, as it stood at the relevant time, read
thus;
D
18. Punishment for contravention in relation to opium
poppy and opium.- Whoever, in contravention of any provision
of this Act, or any rule or order made or condition of licence
granted thereunder cultivates the opium poppy or produces,
manufactures, possesses, sells, purchases, transports, imports inter- E
~State, exports inter-State or uses opium shall be punishable, with
rigorous imprisonment for a term which shall not be less than ten
years but which may extend to twenty years and shall also be liable
to fine which shall not be less than one lakh rupees but which may
----.c: extend to two lakh rupees;
F
Provided that the court may, for reasons to be recorded in the
judgment, impose a fine exceeding two lakh rupees.

16. In our opinion, however, even in absence of specific provision
in the Act empowering a Court to order imprisonment in default of G
payment of fine, such power is implicit and is possessed by a Court
administering criminal justice. Jn this regard, it may be appropriate to
consider the relevant provisions of the Indian Penal Code [IPC] and the
Code of Criminal Procedure, 1973 [CrPC]. Section 40, IPC defines
'offence'. Sections 41 and 42 explain 'special law' and 'local law'
H
738 SUPREME COURT REPORTS [2007] 10 S.C.R.

A respectively. Chapter III, IPC prescribes various punishments. Few
Sections are relevant which deal with imposition of fine and imprisonment
in default of payment of fine. They are Sections 63 to 70 and reads thus;
63. Amount offine
B Where no sum is expressed to which a fine may extend, the amount
of fine to which the offender is liable is unlimited, but shall not be
excessive.
64. Sentence of imprisonment for non-payment offine

c In every case, of an offence punishable with imprisonment as well
as fine, in which the offender is sentenced to a fine, whether with
or without imprisonment, and in every case of an offence punishable
with imprisonment or fine, or] with fine only, in which the offender
is sentenced to a fine, it shall be competent to the Court which
D sentences such offender to direct by the sentence that, in default
of payment of the fine, the offender shall suffer imprisonment for a
certain term, which imprisonment shall be in excess of any other
imprisonment to which he may have been sentenced or to which
he may be liable under a commutation of a sentence.
E 65. Limit to imprisonment for non-payment of fine, when
imprisonment and fine awardable
The term for which the Court directs the offender to be imprisoned
in default of payment of a fine shall not exceed one-fourth of the
F term of imprisonment which is the maximum fixed for the offence,
if the offence be punishable with imprisonment as well as fine.
66. Description of imprisonment for non-payment offine
The imprisonment which the Court imposes in default of payment
G of a fine may be of any description to which the offender might
have been sentenced for the offence.
67. Imprisonment for non-payment of fine, when offence
punishable with fine only
H Ifthe offence be punishable with fine only, the imprisonment which
SHANTILALv. STATE[C.K. THAKKER,J.] 739

the Court imposes in default of payment of the fine shall be simple, A,
and] the term for which the Court directs the offender to be
imprisoned, in default of payment of fine, shall not exceed tile
following scale, that is to say, for any term not exceeding two
months when the amount of the-fine shall not exceed fifty rupees,
and for any tenn not exceeding four months when the amount shall B
not exceed one hundred rupees, and for any term not exceeding
six months in any other case.
68. Imprisonment to terminate on payment offine

The imprisonment which is imposed in default of payment of a fine c
shall tenninate whenever that fine is either paid or levied by process
oflaw.
69. Termination of imprisonment on payment ofproportional
part of.fine
D
If, before the expiration of the term of imprisonment fixed in default
of payment, such a proportion of the fine be paid or levied that
the term of imprisonment suffered in default of payment is not less
than proportional to the part of the fine still unpaid, the
imprisonment shall terminate. E
70. Fine leviable within six years or during imprisonment-
Death not to discharge property from liability

The fine, or any part thereof which remains unpaid, may be levied
at any time within six years after the passing of the sentence, and F
if, under the sentence, the offender be liable to imprisonment for a
longer period than six years, then at any time previous to the
expiration of that period; and the death of the offender does not
discharge from the liability any property which would, after his
death, be legally liable for his debts.
G
17. Section 30, CrPC provides for 'sentence of imprisonment in
default of fine'. It is also relevant and reads as under;
30. Sentence ofimprisonment in default offine.--(1) The Court
of a Magistrate may award such tenn of imprisonment in default H
740 SUPREME COURT REPORTS [2007] 10 S.C.R. ~
A of payment of fine as is authorised by law:
Provided that the term-
(a) is not in excess of the powers of the Magistrate under section
29;
B (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
default of payment of the fine.
c
(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.
18. We may as well refer to Section 25 of the General Clauses Act,
D 1897 which states;
25. Recovery offines.- Sections 63 to 70 of the Indian Penal
Code (45 of 1860) and the provisions of the Code of Criminal
Procedure (5 of 1898) for the time being in force in relation to the
issue and the execution of warrants for the levy of fines shall apply
E
to all fines imposed under any Act, Regulation, rule or bye-law
unless the Act, Regulation, rule, or bye-law contains an express
provision to the contrary.
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.] 741

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; D
"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 ofSection 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
~
742 SUPREME COURT REPORTS (2007] 10 S.C.R.

A 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
B 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
c 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
D
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'
E
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)
F 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.
H
SHANTI LAL v. STATE [C.K. THAKKER,J.] 743

24. A similar question came up for consideration before this Court A
before fifty years in BashiruddinAshrafv. State ofBihar, (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 waqfof 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.
E
25. It was contended on behalf of the mutawalli that Section 65
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
SUPREME COURT REPORTS [2007] 10 S.C.R.
~
744

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
CrPC. _;.__-

27. The next submission of the learned counsel for the appellant,
c 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,
G 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
H much regard to the pecuniary circumstances of the offender as to
SHANTILALv. STATE[C.K. THAKKER,J.] 745

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 ....
F
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
746 SUPREME COURT REPORTS [2007] 10 S.C.R.

A 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
B 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
c 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
D 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
E
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 'r ..
empowered to remit sentences; and such constant interference we
F
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.
G 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
H
SHANTI LAL v. STATE [C.K. THAKKER,J.] 747

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]
..:>- G
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
748 SUPREME COURT REPORTS (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.
B 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".
c
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
D 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
E 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
F 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.
H
SHANTILALv. STATE[C.K. THAKKER,J.] 749

> 34. The Court considered the provisions oflPC as also CrPC and A
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;
B
"But legitimacy is not to be confused with propriety and the fact
·- l 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
750 SUPREME COURT REPORTS (2007] 10 S.C.R.

A 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
B 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
c 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.] 751

as ordered by the trial court and confinned by the High Court. A

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