HIGH COURT OF PUNJAB AND HARYANA
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Falshaw, J. -
(1.) AJIT Singh, the Petitioner, was convicted on his own plea of guilty under Section 61(1)(c) of the Excise Act and sentenced to a fine of Rs. 1000 or in default six months' imprisonment and in appeal his fine was reduced by the learned Sessions Judge to Rs. 700 or in default four months' imprisonment. The fine was not paid and Ajit Singh underwent the whole of the sentence in default. After that the trial Court issued a warrant under Section 386, Code of Criminal Procedure and Section 70, Penal Code, for the realisation of the amount of the fine by distress in spite of the opposition of Ajit Singh. The latter moved the learned Sessions Judge in revision and the case has been forwarded by the learned Second Additional Sessions Judge with the recommendation that the order for the issue of a distress warrant be cancelled On the ground that no special reasons exist for realising the fine within the meaning of the proviso to Section 386(1), Code of Criminal Procedure, which reads:
Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless for special reasons to be recorded in writing it considers it necessary to do so." The reasons given by the learned trial Magistrate are that as far as he could remember at the time of the trial when the accused pleaded guilty he was ready to pay a fine of up to Rs. 500 but did not pay and instead appealed when the fine of Rs. 1000 was imposed on him. The learned Magistrate deduced his ability to pay the amount of the fine from the fact that he was a shopkeeper, and had been able to afford to engage a counsel . These reasons in themselves do not appear sufficient ground for assuming the ability of Ajit Singh to pay the fine, as he may be only a shopkeeper in a very small way, and his counsel may have been only a junior commanding a small fee. There do not appear to be any authorities of what constitute special reasons within the meaning of the proviso, but I would venture to express the opinion that the fine should only be realized after the full term of imprisonment in default has been undergone if there is abundant proof that the convicted person had ample means to pay the fine but contumaciously refrained from doing so, or if the realisation of the line was equitably necessary in order to compensate an injured party, or if the sontoncd of imprisonment imposed in default had been manifestly inadequate. It does not seem to me that any of these reasons exist in the present case, and I accordingly accept the recommendation of the learned Additional Sessions Judge and set aside the order of the trial Court for the issue of a warrant for realisation of the fine.;
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