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Can A Court Of Law Order A Convict To Remain In Jail In Default Of Payment Of Fine Under The Section 18 Of The NDPS Act: Allahabad High Court

Mridul Gupta ,
  25 May 2022       Share Bookmark

Court :
The Hon'ble Allahabad High Court
Brief :

Citation :
Jail Appeal No. - 2497 of 2008

Madan Lal V. State

01 June 2018

The Honourable Mr. Justice Chandra Dhari Singh

Appellant(s): Madan Lal
Respondent(s): State


The instant jail appeal had been filed against the judgment & order passed by the Additional Sessions Judge, by which the appellant was convicted under Section 8/19 N.D.P.S. Act and sentenced for rigorous imprisonment of ten years and fine of Rs.1,00,000/- and in default of payment of fine further two years of simple imprisonment.

Important Provision

The Narcotic Drugs and Psychotropic Substances Act, 1985

Section 8: Except for medical or scientific purposes, cultivation of any coca plant, opium poppy, or cannabis plant is prohibited, as is producing, manufacturing, possessing, selling, purchasing, transporting, warehousing, using, consuming, importing, exporting, or transhipping any narcotic drug or psychotropic substance.

Section 19: Punishment for embezzlement of opium by cultivator.


  • On 30.10.2017 the High Court directed the Superintendent District of Jail Bareillyto submit detailed report in regard to the detention period of the applicant-accused within three weeks. CJM, was also directed to submit compliance report within the aforesaid period.
  • In accordance with the aforementioned order, C.J.M. submitted a report in which it was stated that the appellant had already served the sentence imposed by the Lower Court, but he could not pay the amount of fine of Rs.1,00,000/-, so the Lower Court sentenced the appellant to simple imprisonment for two years in default of payment of fine.


  • Whether a Court of law can order a convict to remain in jail in default of payment of fine?


  • It was submitted that the appellant was impoverished and was the sole breadwinner for his family. It was also suggested that the portion of the order be set aside based on the facts and circumstances of the case and a liberal viewpoint could be taken, directing the release of the appellant.


  • The State, represented by the learned A.G.A., had no opposition to the appellant's release because he had already served nearly 11 years and six months in prison.


  • Section 18 of the Act does not specifically provide that a Court of Law might order a criminal to remain in jail if a fine is not paid. It simply provides for the imposition of a sentence as well as the payment of a fine.
  • The Hon'ble Supreme Court declared in Shantilal vs. State of M.P. [(2007) 11 SCC 243] that even in the absence of a particular provision in the Act authorising a Court to order imprisonment in default of payment of fine, such power was implied and possessed by a Court dispensing criminal justice. In every case involving an offence punishable by both imprisonment and fine, it shall be competent for the Court to direct that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term.
  • In default of a fine, Section 30 Cr.P.C. provides for jail. It states that a Magistrate's Court may impose any length of imprisonment in default of payment of a fine authorised by law. Recovery of fines is stated in Section 25 of the General Clauses Act of 1897.
  • It was obvious from the above provisions that if a person committed any offence under the IPC, he can be penalised, and when such offence is punishable with substantive sentence and fine, he can be compelled to face imprisonment if the fine is not paid. The crucial question was whether the following statutory requirements would apply to special laws and offences committed which were not covered by the IPC. The Court was concerned in this instance with the terms of the NDPS Act, which is anspecial law. In a Court, there was no specific power to order incarceration in default of payment of a fine.
  • The Court was aware that the current case was under the NDPS Act. It was true that the appellant had been sentenced to ten years of rigorous imprisonment as a minimum penalty. However, considering the circumstances presented to the Court on behalf of the appellant-accused that he was very poor and the only earning member of the family; he had to maintain his family; he could not pay the heavy amount of fine (Rs. 1,00,000/-) because of his poverty; and if he was ordered to remain in jail even after the period of substantive sentence was over solely because of his inability to pay fine, serious prejudice will be caused not only to him, but also to his innocent family. As a result, the Court concluded that, while the minimum fine of Rs. 1,00,000/- set in Section 18 of the Act cannot be reduced due to the legislative mandate, the goals of justice would be served if the Court upheld that portion of the direction.


  • Because the appellant had already served approximately 11 years and six months in prison, the current jail appeal was partially allowed, the conviction was recorded, and the appellant's term of rigorous imprisonment for ten years was also confirmed.
  • An order of payment of fine of Rs. 1,00,000/-was also upheld. However, an order that the appellant face simple imprisonment for two years if he did not pay a fine was lowered to simple imprisonment for one year. To that degree, the appellant's appeal was allowed.
  • Because the appellant had already served 11 years and six months, he was released at liberty unless he was charged with any other crime.

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Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE

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