- (1.)The appellant has been convicted under S. 8/18 (c) of the NDPS Act (for short the Act) and sentenced to rigorous imprisonment of 10 years along with fine of Rs. 1,00,000.00 (one lakh) and in default of payment of fine, to undergo R. I. for two years by the Court of Shri A.S. Tomar, 1st Additional Sessions Judge and Special Judge, Mandsaur in special case No. 67/99 by the judgment dated 7/2/2002. Hence, being aggrieved by the judgment, he has preferred this appeal under S.374 of CrPC.
(2.)According to prosecution case on 7/5/1999, 300 gms. of smack was seized from the possession of the appellant Ambalal. Hence, after trial he was" convicted as above mentioned. It has been argued on behalf of the appellant that he is in jail since 7/5/1999 and has completed the sentence of 10 years and seven months. He has been punished to undergo rigorous of two years in default of payment of fine. Due to poorness and incapableness of payment of fine, he is in jail. There is no provision in the Act to punish for the jail sentence in default of payment of fine; hence appeal be accepted and appellant be acquitted.
It has been argued on behalf of the State that the Court has implicit power to punish to undergo rigorous imprisonment in default of payment of fine. The appellant was convicted for serious offence.

Considered the arguments. Record perused.

(3.)As regards the sentence in default of fine is concerned it has been held by the apex Court in the case of Shantilal v. State of M.P., 2008 1 SCC(Cri) 1, that:-
"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. Sections 63 and 70 IPC are relevant which deal with imposition of fine and imprisonment in default of payment of fine. S. 30 of the CrPC prescribes maximum period for which a Court may award imprisonment in default of payment of fine. To the issue whether the statutory provisions would apply to special laws, here NDPS Act, where there is no express power in a Court to order imprisonment in default of payment of fine, held, the law is well settled that such an order can be passed by a competent Court of law having power to impose fine as one of the punishments. Therefore, contention of the appellant that in absence of specific provisions 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 of law, cannot be upheld. So in absence of a provision to the contrary, 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 sections 63 to 70 of the IPC and S. 30 of the CrPC. A general principle of law reflected in sections 63 to 70 of the IPC is that an amount of fine should not be harsh or excessive."

In this case, the appellant was ordered to undergo substantive sentence of 10 years rigorous imprisonment which is the minimum and also to pay fine of Rs. one lakh with default stipulation of two years' rigorous imprisonment. However, on facts and considering the circumsatances of appellant-accused that he is very poor, has to maintain his family, it is his first offence, because of his poverty, he could not pay the heavy amount of fine and if he is ordered to remain injail 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, who are innocent.