2016 (3) TMI 471 - HC - Customs

Modification of Sentence order - Held guilty for committing offences 21(c) & 23(c) read with Section 28 of the NDPS Act - Appellant has already undergone substantive sentence awarded to her and is unable to pay the huge fine being a foreign national and in custody for the last more than nine years. - Held that - by taking into consideration Section 30 of Cr.P.C. and the judgment of Shahejadkhan Mahebubkhan Pathan vs. State of Gujarat 2012 (10) TMI 518 - SUPREME COURT , the sentence order is modified to the extent that default sentence for non-payment of fine ₹ 1 lac each shall be SI for one month each instead of three months each. Other terms and conditions of the sentence order are left undisturbed. - Decided partly in favour of appellant

Summary

Issues: Appeal challenging conviction and sentence under NDPS Act, modification of sentence order, consideration of appellant's circumstances for fine payment, comparison with previous judgments, modification of default sentence for non-payment of fine.

Analysis:

1. Conviction and Sentence under NDPS Act:
The appellant filed an appeal challenging the judgment convicting her under Sections 21(c) & 23(c) read with Section 28 of the NDPS Act. The appellant was found in possession of 2.100 kg of heroin at the airport. Despite denying involvement during the trial, the appellant's conviction was affirmed due to overwhelming evidence. The substantive sentence of RI for ten years with a fine of &8377; 1 lac each under both heads was upheld.

2. Modification of Sentence Order:
The appellant's counsel requested a modification of the sentence order, citing that the appellant had already served almost the entire substantive sentence. The court noted that the appellant had been in custody for nine years, two months, and two days as of a certain date. However, the court clarified that the substantive sentence could not be altered as it was the minimum prescribed under the Act. The fine amount of &8377; 1 lac each could also not be changed, despite the appellant's inability to pay.

3. Consideration of Appellant's Circumstances for Fine Payment:
The appellant, being a foreign national with poor economic conditions and having sole responsibility for her three children, was unable to pay the fine imposed. The court took note of her circumstances, including her inability to furnish the required surety bonds for bail due to economic reasons and her younger son's medical condition, but reiterated that the minimum fine amount prescribed by law could not be altered.

4. Comparison with Previous Judgments:
The court referred to a previous judgment where the Supreme Court had reduced a sentence from 15 years to 10 years considering the time already served by the appellant. In that case, the default sentence for non-payment of fine was also reduced. Drawing parallels, the court modified the default sentence for the appellant in this case to one month each instead of three months each, in line with the principles laid down in the previous judgment.

5. Modification of Default Sentence for Non-Payment of Fine:
Relying on Section 30 of the Cr.P.C. and the precedent mentioned, the court modified the default sentence for non-payment of the fine from three months each to one month each. The rest of the terms and conditions of the sentence order remained unchanged. The appeal was disposed of accordingly, and necessary instructions were given for the trial court record and the jail authorities.

This detailed analysis covers the key issues addressed in the judgment, including the appeal against conviction, modification of sentence order, consideration of the appellant's circumstances, comparison with previous judgments, and the modification of default sentence terms.