Full Judgment Text
2022:DHC:5952
$-43
IN THE HIGH COURT OF DELHI AT NEW DELHI
Order pronounced on 03.06.2022
*
%
CRL.A. 121/2017 & CRL.M.(BAIL) 337/2020, CRL.M.(BAIL)
985/2021
+
CHRISTION ASIEME NSOFOR Appellant
Through: Mr. Adarsh Priyadarshi, Advocate.
Versus
STATE STAlE^JNUiu (NCT OF DELHI) ^^^^^j^_^^Nayak,APPforSta^ Respondent
Insp. Satyawan, Security Unit.
A.SI Omprakash, Narcotics Cell,
Crirne Branch.
TO N^E MR. JUSTICEjTAit^^T SINGH
Tuiwant Singh. J.: f i ; ' 1 /
1. The appellant has fi fe d against his conviction date
04 08 2016 under Section 21 (C) of The Narcotic Drugs & Psyehotroptc
Substances, Act, 1985 Acf') and SeeUon
186/353/332/420/468/471/34IPC and Section 14 (a) of The Foreigners c ,
©
T-' • A r•t"^ Hp was awarded sentence on the above fi ve
1946 ("The Foreigners Act ). tie was dwaiu
counts as under by order dated 17.08.2016:-
(i) Ten years rigorous imprisonment
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offence under Section 186IPC;
(Hi) Eight months rigorous imprisonment for the commission of
offence under Section 353 IPC;
(iv) One year rigorous imprisonment for the commission of
offence under Section 332 IPG;
(v) Two years rigorous imprisonment and fi ne of Rs.5,000/-for
the commission of^. offence under Section 14 (a) of the
Foreigners Act and in default of payment of fi ne, to further
undergo simple imprisonment for fi fteen days".
1.1 The appeal was admitted on 0L02.2017. The appellant had also
moved an application for suspension of sentence, however, the same was
disposed of as not pressed on 31.07.2017. Although on 26.10.2018, it was
ordered that the appeal is required to be expedited for heanng keeping in
view that he had undergone 6 years imprisonment out of 10 years awarded
to him but due to various reasons the same could not be heard. In between,
hearing of the appeal was delay^ becau^ of the pandemic as the matters
were adjourned enbloc and the'^rtsj^ire only with urgent/new
matters. rS
1 2 The appellant again fo r suspension of sentence
being Crl.M (Bail) 337/2020 and'Cri:M.(Bail) 985/2021 on the ground that
he had already undergone 9 and half yeara imprisonment, which are
© pending.
2. Nominal roll was also called for and placed on record.
2.1 Written submissions were filed by both the sides on merits of appeal.
3 Arguments were heard.
31 The brief facts of the case are that on 03.o"7.2012 at about 5:00 P.M. a
secret information was received in the office of Narcotics Cell, Shakkarpur
that the appellant, a Nigerian national, would come near the Metro Pillar
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M'V
No.741, Uttam Nagar, New Delhi between 7 to 7:30 P.M. for supplying
huge quantity of Heroin to someone. A raiding team was constituted by SI
Satywan (PW7 I.O.). At about 7 to 7:30 P.M. the appellant was
apprehended by the raiding team. A notice under Section 50 NDPS Act was
given to him but he refused to be searched before any Magistrate or
Gazetted Officer. His personal search was conducted and 400 gms of Heroin
kept in a polyphone pouch was recovered from the right side pocket of his
pant. The appellant was arrested and FIR No.182/12 was registered dated
04.07.2012 in the Police Station Crime Branch, Malviya Nagar. The ease
property was deposited in Malkhana at P.S. Crime Branch, Malviya Nagar.
After the investigation of the case, the Investigating officer fi led the charge
sheet on 18.10.2012 under Section 21 nf the NDPS Act, Section 14 of the
Foreigner Act, 1946 and Section 186/353/332 IPG. On 21.01.2013 the
charge for the offence of under Section 21 of NDPS Act, Section 41
Foreigners Act, and Sections; 186/353/532/420/468/471/34 IPG was framed
by the Trial Judge. After:; trial, ; the. pfe§ent; appellant was convicted as
detailed, in the preceding paragrapiisi • ; '
3.2 Nominal roll dated 28.01.2022 which shows that as on that date, the
appellant had undergone incarceration of 9 years, 6 months and 24 days and
remaining unexpired portion of sentence is 5 months and 6 days. By now 4
months and 7 days further incarceration has taken place, so the remaining
unexpired portion of the substantive sentence is about 1 month.
3.3 Learned counsel or the appellant has submitted under instructions,
that keeping in view the facts and circumstances of the present case, it is
prayed on behalf of the appellant that he accepts his conviction under
Section 21(G) of the NDPS Act and Sections 186/353/332/IPG and Section
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14 (A) of the Foreigners Act as he has almost completed the entire
substantive sentence, so now he is confining his prayer only to fine of Rs.
1,00,000/- in default of payment of fine, six months simple imprisonment
under Section 21 (C) of NDPS Act and Section 14 (A) of the Foreigners Act,
fine of Rs. 5,000/- and in default sentence of 15 days.
4. In view of this submission, the conviction order/judgment dated
04.08.2016 in Sessions Case No. 17/2/20212 is upheld. As far as the
sentence is concemed, the appellant has almost undergone the entire
substantive sentence and hardly about one month of unexpired portion of the
sentence is left out. The submission of the leamed counsel for the appellant
is that the appellant is a foreigri natidnal. arid his native country is Nigeria;
over the last about 10 years he is lodged in jail and he has no means to pay
fine imposed through the order on sentence dated 17.08.2016, so his request
is to reduce the period of siiriple imprisonment awarded in default of
payment of fine to the minimum.. ' : ' ,
4.1. Leamed counsel for the appellant Has relied upon a judgment passed
by a coordinate bench of tliis 'CduifVritt'&1. Appeal No. 213/2006 titled
Chanyangba Tamang V5. M.S. Raman, AIR Customs Officer decided on
30.11.2009 in support of his request that this Court has power to reduce the
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sentence imposed upon him in default of payment of fine. The relevant
portion of the judgment is reproduced hereunder:-
"5. The learned counsel for the appellant states that considering
the evidence produced during trial, the appellant does not
dispute his conviction on merits. He further states that the only
prayer being made by the appellant is to reduce the sentence
imposed upon him in default of payment of fine.
9. The appellant has already spent more than nine years in
custody. Keeping in view all the facts and circumstances of the
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ase including the inability of the appellant to pay the amount
of fi ne despite having been in jail for more than nine years ,
w lie maintaining the substance sentence of ten years awarded
to him, the sentence imposed upon the appellant in default of
payment of fi ne is reduced to one month each under Section 21
(C) and 23 read with Section 28 ofNDPSAct".
4.2 On the other hand, learned APP has submitted that the fine imposed
under NDPS Act is the minimum prescribed in Section 21 (C) of NDPS Act.
The relevant Section is reproduced hereunder:-
Punishment for contravention in relation to manufactured
drugs and preparations.
(a) ....
(b)...
(c) where the contravention involves commercial quantity, with
rigorous imprisonment for a term which shall not be less than
ten years but which may extend to iyventy years and shall also
be liable to fi ne which shalt not be less than one lakh rupees but
which may extend to two IdkH rupee
Provided that the court.may, for reasons to be recorded in the
judgment, impose a fi ne exceeding t^p lakh rupees. "
5. Keeping in view the facts hnd eireum^^^ of the case especially the
ground reality that the present appellant is languishing in jail for the last ten
^ years; he being foreign nation has no,family, support in India and he has no
means to pay the fine imposed by the Trial Court under Section 21 (C) of the
NDPS Act and Section 14 of the Foreigners Act and also the fact that the
appellant is not challenging his conviction on merits, I am inclined to reduce
the sentence imposed upon him in default of payment of fme^as under, while
maintaining the substantive sentence awarded to him under various sections:
(1) The sentence of fine imposed under Section 21 (C) of NDPS of
Rs. 1,00,000/- and in default SI of six months is reduced to SI for one
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so
month;
(2) The sentence of fine of Rs. 5,000/- under Section 14 (A) of the
Foreigners Act and in default the simple imprisonment for 15 days is
reduced to SI for 5 days.
The appeal and the pending applications are disposed of accordingly.
6.
TALWANT SINGH,
JUNE 3,-2022/nk
5",
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