2013 (9) TMI 732 - HC - Customs

Conviction for an Offence Punishable u/s 21(c) and 28 r.w. 23(c) Held that - Taking into consideration Section 30 of Cr.P.C. and judgment of Shahejadkhan Mehbubkhan Pathan Vs. State of Gujarat 2012 (10) TMI 518 - SUPREME COURT - the default sentence of 1 year each was reduced to 3 months each - It was ordered that the appellant shall pay a fine of Rs.1 lac and in default of payment of fine, she shall undergo SI for a period of 3 months each on both counts. It was the duty of the Court to keep in view the nature of offence, the circumstances in which it was committed, the position of the offender and other relevant considerations such as pecuniary circumstances of the accused person as to character and magnitude of offence before ordering the offender to suffer imprisonment in default of payment of fine - The provisions of Sections 63-70 of IPC make it clear that an amount of fine should not be harsh or excessive - where substantial term of imprisonment was inflicted excessive fine should not be imposed except in exceptional cases.

Summary

Issues:
- Appeal against conviction and sentence under NDPS Act
- Possession of Heroine at the airport
- Modification of sentence due to time served and health condition
- Reference to previous judgments for sentence reduction

Analysis:
The judgment pertains to an appeal against the conviction and sentence under the NDPS Act. The appellant was found in possession of Heroine at the airport and convicted under Section 21(c) and Section 28 r/w Section 23 (c) of the NDPS Act. The appellant did not challenge the conviction but sought modification of the sentence due to having served almost the entire term and being a chronic patient with HIV+. The court considered the trial court record and confirmed the conviction as the appellant did not contest it.

Regarding the quantum of sentence, the appellant was initially sentenced to 10 years of rigorous imprisonment for each offense, to run concurrently. However, considering that the appellant had served nearly the entire sentence and her health condition, the court maintained the sentence as the minimum prescribed. The court referred to previous judgments where sentences were reduced based on time served and other factors.

Citing the case of Shahejadkhan, the court highlighted the distinction between imprisonment for non-payment of fines and substantive sentences. The court reduced the default sentence from 1 year to 3 months each, ordering the appellant to pay a fine of Rs.1 lac on both counts. This decision was in line with the principles outlined in the previous judgments referenced during the proceedings.

In conclusion, the appeal was disposed of with the modified sentence terms. The court directed the Superintendent of Tihar Jail to inform the appellant of the order and instructed to send a copy of the order along with the trial court record back to the Trial Court for further action.