Namza Nozogh vs B.R. Nanda

Mohd. Sharnim, J.

(1) Since a very short point is involved I proceed to hear and decide this matter.

(2) This revision petition is directed against an order dated 23/07/1994 passed by the learned Additional cession Judge.

(3) The only point involved in the present revision petition is as to whether the learned Additional Session Judge was competent to direct the petitioner to under go Rl for a period of 2 years 5 months and 3 weeks in default of payment of fine which was Rs.12,50,000.00 imposed on the petitioner. Learned Counsel for the petitioner Mr.Jitender Sethi has contended that the Court is no competent to direct an accused to undergo more than I /4th of the term of imprisonment which is the maximum fixed for the offence committed by a particular accused. According to the learned Counsel, in the instant case the petitioner could not have been punished with an imprisonment for more than 7 years. The learned Additional Sessions Judge, however, for the reasons best known to him, directed the petitioner to undergo Rl for 2 years 5 months and 3 weeks in default of payment of fine, which was obviously wrong. According to him, the maximum term of imprisonment is 7 years. Thus, the petitioner could have been sentenced to under go Rl for 21 months in default of payment of fine. The petitioner, according to him, has already undergone 7 months of imprisonment in default of payment of fine besides 3 years 7 months Rl which he had already undergone. The learned Counsel thus wants that the term of imprisonment in default of payment of fine be reduced to the imprisonment already undergone by the petitioner as he is a foreign national and is not in a position to pay the fine.

(4) The learned Counsel for the respondents have urged to the contrary. According to them, the petitioner was found in possession of40kgs.ofgold.Thus, the instant case is not a case of showing any leniency to the petitioner.

(5) I have heard the learned Counsel for the petitioner and the learned Counsel for the respondents at sufficient length and have very carefully examined the facts of the present case and have given my anxious thoughts thereto.

(6) It is manifest from above that the learned Additional Sessions Judge could not have sentenced the petitioner to undergo Rl for more than 21 months in default of payment of fine vide Section 65 of Indian Penal Code. The petitioner has already depose 7 months at imprisonment out of the said sentence awarded to him besides the term of imprisonment of 3 years 7 months already undergone by him. In this way, the petitioner has already undergone Rl for a period of 4 years 2months. The petitioner is admittedly a foreigner. Thus, he is not in a position to pay the fine imposed on him which is to the tune of Rs. 12,50,000.00 though the learned Magistrate imposed a fine of Rs. 5 lacs only.

(7) Considering the above facts and circumstances I think it expedient in the interest awarded by the learned Additional Sessions Judge to the term of imprisonment already undergone by the petitioner. The petitioner is alleged to have been found in possession of 4100$ and 2700 Iranian Rials. The said amount shall stand forfeited to the State. The revision, petition is disposed of accordingly. The petitioner be released forth with in case he is not required if any other case.