1 APEAL.634-2010.sxw Acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 634 OF 2010 WITH CRIMINAL APPLICATION NO.1176 OF 2011 Baby John @ Unneri Parkel ...Appellant. Vs. The State of Maharashtra . ...Respondents. ---- Mr. P.R. Arjunwadkar, for the Applicant. Mr. P.S. Hingorani, AP.P. for the State. ---- CORAM: V.M. KANADE & M.L. TAHALIYANI, JJ. DATED: NOVEMBER 21, 2011. P.C.:- 1. Heard learned counsel for the appellant, and the learned A.P.P. on behalf of the State. 2. The appellant has been convicted by the Special Judge under MCOC Act for the offence punishable under Section 3(1)(ii) of Maharashtra Control of Organised Crime Act, 1999 and is sentenced to 2 APEAL.634-2010.sxw suffer R.I. for seven years and to pay a fine of rupees five lacs and and in default of payment of fine to suffer further R.I. for two years. 3. Learned counsel appearing on behalf of the appellant submits that he does not wish to challenge the order of conviction on merits. He submits that so far as the default sentence is concerned, the said sentence of two years imposed by the Special Judge under MCOC Act for non payment of fine of rupees five lacs is excessive and harsh and is contrary to the Section 29 of Cr. P.C. It is submitted that in default sentence should not normally be more than 1/4th of the total sentence awarded by the Trial Court. 4. Learned A.P.P. on behalf of the State submits that minimum fine amount for the said offence should be of rupees five lacs and in default sentence is proportional to the amount of fine imposed. 5. In our view, taking into consideration the fact that the appellant is not contesting the appeal on merits, in default sentence can be reduced to six months, particularly taking into consideration the stand of the Government which is taken in Criminal Application No.1311 of 2011 in 3 APEAL.634-2010.sxw Criminal Appeal No.1167 of 2011 in MCOC Special Case No.17 of 2005 decided by the learned Single Judge of this Court on 7th October, 2011. In the said case, the learned A.P.P., after taking instructions from the Home Department, Government of Maharashtra, made a statement that the Government intends to make suitable amendment in MCOC Act in respect of the discrepancy which has occurred in Section 3(1)(ii) of the said Act in respect of sentence of fine. Learned A.P.P. submits that though the proposal has been given for amendment of the said provision, the said provision has not yet amended. 6. It appears that under Section 3(1)(i) of the MCOC Act if the offence results in the death of any person then in that case the said accused can be punished with death or imprisonment for life and minimum fine amount of rupees one lac has to be paid by him. However, under Section 3(1)(ii) of the said Act, it is stated that in any other case where the offence is punishable with imprisonment for a term which is not less than five years and which can be extended to imprisonment for live, in such case a minimum fine of rupees five lacs has to be paid. It was submitted that in respect of the serious offence resulting in death, the minimum fine is rupees one lac, whereas for the lesser offence minimum fine prescribed by 4 APEAL.634-2010.sxw law is rupees five lacs. 7. In view of the stand of the Government and since it is conceded that this inconsistency has crept in at the time of drafting of the Act, in our view, it would be appropriate if in default sentence is reduced to six months instead of two years. Hence, the Criminal Appeal No.634 of 2010 is partly allowed to the said extent only, and is disposed as such. 8. In view of the disposal of the appeal, Criminal Application No. 1176 of 2011 received through the jail does not survive and is disposed of accordingly. (M.L. TAHALIYANI, J.) (V.M. KANADE, J.)