Christion Asiemensofo v. State (NCT of Delhi)

1. The appellant has fifed against his conviction date 04082016 under Section 21(C)ofThe Narcotic Drugs &Psyehotroptc Substances, Act, 1985 Acf') and SeeUon 186/353/332/420/468/471/34IPCandSection14(a)of TheForeigners c, T-' • Ar•t"^ Hp was awarded sentence on the above five 1946("The Foreigners Act ). tie was dwaiu counts asunderbyorder dated 17.08.2016:-

(i) Ten years rigorous imprisonment

Page 1 of[6] CRL.A. 121/2017 2022:DHC:5952 offence underSection 186IPC; (Hi)Eight months rigorous imprisonmentfor the commission of offence underSection 353IPC;

(iv) One year rigorous imprisonmentfor the commission of offence underSection 332IPG;

(v) Two years rigorous imprisonment andfine ofRs.5,000/-for the commission of^. offence under Section 14 (a) of the Foreigners Act and in default ofpayment offine, to further undergosimple imprisonmentforfi 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 ofas notpressed 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 of10 years awarded to him butdueto variousreasonsthe same could notbeheard. Inbetween, hearing ofthe appeal was delay^becau^ ofthe pandemic asthe matters were adjourned enbloc and the'^rtsj^ire only with urgent/new matters. rS

12 The appellant again for suspension ofsentence beingCrl.M(Bail)337/2020and'Cri:M.(Bail)985/2021 onthegroundthat he had already undergone 9 and half yeara imprisonment, which are © pending.

2. Nominalrollwasalsocalledforandplacedonrecord. 2.[1] Writtensubmissionswerefiledbyboththesidesonmeritsofappeal.

31 Thebrieffactsofthecasearethaton03.o"7.2012atabout[5]:00P.M.a secretinformation wasreceivedintheofficeofNarcotics Cell,Shakkarpur thatthe appellant,a Nigerian national,would come nearthe Metro Pillar Page 2of[6] M'V No.741, Uttam Nagar, New Delhi between 7 to 7:30 P.M. for supplying huge quantity ofHeroin to someone.A raiding team was constituted by SI Satywan (PW[7] 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 wasconducted and400gmsofHeroin kept in a polyphone pouch was recovered from the right side pocket ofhis 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 ofthe case,the Investigating officer filed the charge sheet on 18.10.2012 under Section 21 nfthe NDPS Act, Section 14 ofthe 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,inthe 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 ofsentence is 5 months and 6 days. By now 4 months and 7 days further incarceration has taken place, so the remaining unexpired portion ofthe 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 ofthe present case, it is prayed on behalf of the appellant that he accepts his conviction under Section 21(G)ofthe NDPS Actand Sections 186/353/332/IPG and Section CRL.A.121/2017 ^ 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 ofRs. 1,00,000/- in default ofpayment offine, six months simple imprisonment underSection21(C)ofNDPSActand Section 14(A)oftheForeignersAct, fine ofRs.5,000/- and in defaultsentenceof15 days.

4. In view of this submission, the conviction order/judgment dated 04.08.2016 in Sessions Case No. 17/2/2021[2] is upheld. As far as the sentence is concemed, the appellant has almost undergone the entire substantive sentence and hardly aboutone month ofunexpired portion ofthe sentence is left out. The submission ofthe leamed counselfor 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 injail 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 paymentoffine to the minimum.. ': ',

4.1. Leamed counsel for the appellant Has relied upon ajudgment passed by a coordinate bench of tliis'CduifVritt'&1. Appeal No. 213/2006 titled Chanyangba Tamang V[5]. M.S. Raman, AIR Customs Officer decided on 30.11.2009 in support ofhis request thatthis Court has power to reduce the sentence imposed upon him in default of payment of fine. The relevant portion ofthejudgmentis reproduced hereunder:- "5. The learnedcounselfor the appellantstates thatconsidering the evidence produced during trial, the appellant does not dispute his conviction on merits. Hefurtherstates that the only prayer being made by the appellant is to reduce the sentence imposed upon him in defaultofpaymentoffine.

9. The appellant has already spent more than nine years in custody. Keeping in view all thefacts andcircumstances ofthe © CRL.A. 121/2017 Page4of[6] ase including the inability ofthe appellanttopay the amount offine despite having been injailfor more than nine years, w lie maintaining the substancesentence often yearsawarded to him, the sentence imposed upon the appellant in default of paymentof fine is reduced to one month each under Section 21 (C)and23readwithSection 28ofNDPSAct". 4.[2] On the other hand,learned APP has submitted that the fine imposed underNDPSActisthe minimum prescribed in Section21(C)ofNDPSAct. The relevant Section is reproduced hereunder:- Punishmentfor contravention in relation to manufactured drugsandpreparations. (a).... (b)... (c)where the contravention involves commercial quantity, with rigorous imprisonmentfor a term which shall not be less than ten years but which may extendto iyventy years and shall also be liable tofine which shaltnotbe lessthan onelakh rupees but which may extendto two IdkHrupee Provided that the court.may,for reasons to be recorded in the judgment,impose afine exceeding t^p lakh rupees."

5. Keeping in view the facts hnd eireum^^^ ofthe case especially the ground reality that the present appellant is languishing in jail for the last ten ^ years;he beingforeign nation has no,family,supportinIndia and he has no means to pay the fine imposed by the Trial Courtunder Section 21(C)ofthe NDPS Act and Section 14 ofthe Foreigners Act and also the fact that the appellantis not challenging his conviction on merits,I am inclined to reduce the sentence imposed upon him in default ofpaymentoffme^as under,while maintaining the substantive sentence awarded to him under various sections: (1) The sentence offine imposed under Section 21 (C)of NDPS of Rs. 1,00,000/- and in default SIofsix months is reduced to SIfor one CRL.A. 121/2017 Page 5of[6]

1) so

6. month; (2)The sentence offine of Rs. 5,000/- under Section 14(A)ofthe Foreigners Act and in defaultthe simple imprisonmentfor 15 days is reduced to SIfor 5 days. The appealandthepending applications are disposed ofaccordingly.