Delhi High Court
Unice Ada Jemor vs Customs on 21 August, 2013
Author: Sunita Gupta
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. A. No. 1103/2010
Date of Decision: 21st August, 2013
UNICE ADA JEMOR ..... Petitioner
Through Mr. Dinesh Malik, Advocate
versus
CUSTOMS ..... Respondent
Through Mr. Pramod Bahuguna,
Advocate
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
SUNITA GUPTA, J. (Oral)
1. The appellant has preferred the present appeal against the
judgment dated 27th March, 2010 and order on sentence dated 31st
March, 2010 of Additional Sessions Judge, Delhi by which she was
convicted for committing offence punishable under Section 21(c) and
Section 28 r/w Section 23 (c) of NDPS Act and sentenced to undergo
rigorous imprisonment for 10 years and to pay a fine of Rs.1 lac each,
in default of payment of fine to undergo SI for six months.
2. The appellant was apprehended from the Departure Hall at IGI
Airport on 24th August, 2003 and was alleged to be in possession of
Heroine weighing 1.690kg by the Custom Authorities. In order to
substantiate its case, prosecution examined 14 witnesses besides one
court witness. Statement of the accused was recorded under Section
313 Cr. P.C. No defence evidence was led. After considering the
facts on record and appreciating the arguments of the concerned
parties, vide impugned order, the appellant was held guilty of being
found in possession of Heroine weighing 1.690 kg which she was
attempting to export out of India as she was bound to fly to
Amsterdam by KLM Flight No. 872 dated 25th August, 2003. As
such, she was convicted for the offence punishable under Section
21(c) and Section 28 r/w Section 23 (c) NDPS Act. Being aggrieved,
the appellant has preferred the present appeal.
3. During the course of arguments, learned counsel for the
appellant, on instructions from the appellant, submitted that he does
not challenge the conviction of the appellant for the offence
punishable under Section 21(c) and Section 28 r/w Section 23(c) of
NDPS Act. He, however, prays for modification of the order on
sentence as the appellant has already undergone 9 years 11 months
and 21 days as per the nominal roll. The appellant is very poor and is
unable to deposit the amount of fine. Further, she is a chronic patient
of various deceases due to HIV+.
4. Reliance was placed on Shahejadkhan Mehbubkhan Pathan
Vs. State of Gujarat, 2012 (10) SCALE and Raj Kumar Vs. State,
Crl. Appeal No. 63/2006.
5. I have considered the submissions of the parties and have
examined the trial court record.
6. Since the appellant has not opted to challenge the findings of
the learned Trial Court on conviction under Section 21(c) and Section
28 r/w Section 23 (c) of NDPS Act, the order of conviction of the
Trial Court stands confirmed.
7. As regards the quantum of sentence, the appellant was
sentenced to undergo rigorous imprisonment for 10 years each and
both the substantive sentences were ordered to run concurrently. As
per the nominal roll dated 17th August, 2013, the appellant has almost
served the substantial sentence inasmuch as she remained in custody
for a period of 9 years 11 months and 21 days.
8. As per the report, she was convicted in FIR 218/06 under
Section 332, PS Hari Nagar and the sentence has already expired.
However, her overall conduct has been reported to be satisfactory.
She is also suffering from HIV+. As such, considering all these facts
and circumstances of the case and in the interest of justice, the order
of substantive sentence under both the sections is maintained as it is
the minimum sentence, i.e., RI for 10 years.
9. In the case of Shahejadkhan (supra) relied upon by the learned
counsel for the appellant, Hon'ble Supreme Court reduced the
sentence from 15 years to 10 years as the appellant therein had
already served nearly 12 years in jail. The order on payment of fine
of Rs.1,50,000/- was upheld but default sentence was reduced from
RI for 3 years to RI for 6 months. It was observed that :-
"The term of imprisonment in default of payment of fine
is not a sentence. To put it clear, it is a penalty which a
person incurs on account of non-payment of fine. On the
other hand, if sentence is imposed, undoubtedly, an
offender must undergo unless it is modified or varied in
part or whole in the judicial proceedings. However, the
imprisonment ordered in default of payment of fine
stands on a different footing. When such default sentence
is imposed, a person is required to undergo imprisonment
either because he is unable to pay the amount of fine or
refuses to pay such amount. Accordingly, he can always
avoid to undergo imprisonment in default of payment of
fine by paying such an amount. In such circumstances,
we are of the view that it is 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. We also
reiterate that where substantial term of imprisonment is
inflicted excessive fine should not be imposed except in
exceptional cases."
10. This judgment was followed in Raj Kumar (Supra) by this
Court. While maintaining the substantive sentence, the default
sentence was reduced from 6 months to 3 months.
11. Taking into consideration Section 30 of Cr.P.C. and judgment
of Hon'ble Supreme Court followed by this Court, the default
sentence of 1 year each is reduced to 3 months each. It is 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.
12. The appeal filed by the appellant is disposed of in the above
terms. Pending applications also stand disposed of.
13. A copy of the order be sent to Superintendent, Tihar Jail, who
shall send a copy of same to the appellant also.
14. Copy of the order along with trial court record be sent back to
the Trial Court.
SUNITA GUPTA, J
AUGUST 21, 2013
rs
