2019 (2) TMI 1157 - HC - Indian Laws

Smuggling - cocaine - Section 21(b) of NDPS Act - Held that - Nominal Roll dated 02.05.2018 reflects that he is not a previous convict and his overall jail conduct is satisfactory. He has already undergone two years and fifteen days incarceration as on 01.05.2018 - the period already undergone by the appellant in this case is taken as a substantive sentence. Other terms and conditions of the sentence order are left undisturbed. The appellant shall deposit the fine as imposed with the Trial Court. On release, the appellant shall be handed over to FRRO for immediate deportation. Petition disposed off.

Summary

Issues involved:
Challenge to legality and correctness of judgment, Conviction under NDPS Act and Foreigners Act, Modification of sentence order, Consideration of mitigating circumstances, Previous conviction status, Jail conduct evaluation, Appellant's personal circumstances, Deportation after release.

Analysis:

The appellant filed an appeal challenging the legality and correctness of a judgment convicting him under Section 21(b) of NDPS Act and Section 14 of Foreigners Act, 1946. The appellant was found in possession of 8 gms of cocaine without a license and overstayed in India after the expiry of his visa. The prosecution presented twelve witnesses and various documents to support its case, leading to the appellant's conviction. During the appeal, the appellant decided not to challenge the conviction findings but sought a modification of the sentence due to his incarceration period and lack of previous convictions. The appellant's jail conduct, personal circumstances, including having a daughter in Nigeria, and health issues were considered. The appellant had already served two years and fifteen days in jail by a certain date, and his clean antecedents were noted. The sentence was modified, considering the time already served as a substantive sentence, and the appellant was ordered to pay the imposed fine and be deported upon release to Nigeria.

The judgment emphasized that the appellant's decision not to challenge the conviction led to the affirmation of the conviction under both charges. However, the focus shifted to modifying the sentence based on the appellant's circumstances, including his time served, lack of prior convictions, satisfactory jail conduct, family situation, and health issues. The court acknowledged the appellant's ordeal since 2012 and the need for compassionate considerations in sentencing. The appellant's cooperation during the trial, custody under FRRO, and clean record were crucial factors in the decision to treat the time served as a substantive sentence. The order required the appellant to pay the fines, maintain other sentence conditions, and be deported upon release, taking into account his personal and health-related challenges.

In conclusion, the appeal was disposed of with the modified sentence terms, considering the appellant's specific circumstances and the time already spent in incarceration. The court directed the Trial Court to be informed of the order, the jail superintendent to be notified, and pending applications to be resolved. The decision reflected a balance between upholding the conviction and recognizing the appellant's mitigating factors, ultimately leading to a compassionate approach in the sentencing process.