Obinna Basil Anaebo @ Emmanuel vs State
2014 Latest Caselaw 6272 Del

$~25
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CRL.A. 434/2014

      OBINNA BASIL ANAEBO @ EMMANUEL           ..... Appellant
                    Through: Ms. Sumi Anand and Mr. Arvinder
                             Singh, Advocates.

                         versus

      STATE                                                 ..... Respondent
                         Through:      Mr. P.K. Mishra, APP for the State
                                       with SI Sanjiv, PS Crime Branch.

      CORAM:
      HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

      % SUDERSHAN KUMAR MISRA, J. (ORAL)

Crl. A. 434/2014 & Crl. M.B. 737/2014 and Crl. M.A. 18414/2014

1. The aforesaid appeal was admitted for hearing by this Court on 4th April, 2014 and the matter was directed to be listed in the week commencing 25th August, 2014 in the category of 'Regulars'. Since the main appeal itself had been listed for final hearing on a fixed date, consequently, the prayer of the appellant for suspension of sentence was declined at that stage and it was further directed that in case the matter is not heard on that date then the appellant's application for suspension of sentence will be considered.

2. The present appeal has not been taken up for final disposal despite the same having been listed for hearing in the week commencing 25th August, 2014 due to the heavy cause list of this

Court.

3. The appellant has now moved an application; being Crl. M.A. No.18414/2014; under Section 482 Cr.P.C. seeking release of the appellant/applicant on the sentence already undergone. The appeal as well as the present application has been moved through the services of Delhi High Court Legal Services Committee and nominal roll of the appellant has also been forwarded by the Jail Superintendent.

4. Issue notice.

Mr. P.K. Mishra, Additional Public Prosecutor enters appearance and accepts notice on behalf of the State/respondent. He submits that he does not wish to file any reply to the application and that he has no objection to the main appeal also being taken up for final disposal today itself.

5. The appellant was convicted by the Court below on 20th February, 2014 in connection with FIR No. 22/2013 registered at Police Station Crime Branch under Sections 21/61/85 of the NDPS Act read with Section 419 and 474 IPC and Section 14 of the Foreigners Act. He was sentenced to rigorous imprisonment for two years for an offence under Section 21(b) of NDPS Act and fine of Rs.20,000/- and in default of payment of fine to further undergo simple imprisonment for two months. For the offence under Section 419 IPC the appellant was sentenced to simple imprisonment for a period of six months and a fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month. For the offence under Section 474 IPC the appellant was sentenced to simple imprisonment for a period of one year and fine of

Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month. For the offence under Section 14 of the Foreigners Act the appellant was sentenced to simple imprisonment for a period of one year and a fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month. These sentences were directed to run concurrently and it was directed that benefit under Section 428 Cr.P.C. be granted to the appellant who had been in judicial custody since 10th February, 2013.

6. In substance, the appellant had been convicted for possession of 20 grams of cocaine; impersonation; possession of a forged Visa; and for staying in India without valid documents of stay. The quantity of cocain in the matter is an intermediate quantity. A perusal of the nominal roll shows that as on 14th November, 2014 the appellant has undergone custody for 1 year 9 months and 2 days. His conduct during the said period of incarceration is stated to be satisfactory and nothing adverse has been reported against him. He is stated to have been behaving properly and has been a good inmate.

7. Counsel for the appellant has relied on a decision of this Court in the case titled as Edom Simon Chimezie v. State of NCT of Delhi, Crl. Appeal No. 613/2014 decided on 16th May, 2014 where also, in a similar matter, a foreign national was convicted of unlawful possession of 300 grams of heroin and was sentenced under Section 21(b) of the NDPS Act to undergo rigorous imprisonment for four years along with fine and also under Section 14 of the Foreigners Act. In that matter the appellant had served a sentence of 2 years 4 months

and 21 days out of four years. There is no minimum sentence prescribed under Section 21 (b) of the NDPS Act and Section 14 of the Foreigners Act.

8. Counsel for the appellant submits that similarly, in this case also, the appellant happens to be a foreign national belonging to Nigeria. Further, it is also contended that as compared to the decision of this Court in Edom Simon Chimezie (supra) relied upon by counsel for the appellant, the present case stands on a better footing. The appellant in that case was convicted for possession of 300 grams of heroin, whereas in this case the appellant has been convicted for possession of 20 grams of cocaine. In Edom Simon Chimezie (supra) reliance was also placed on the decision of the Supreme Court in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau (2008) 5 SCC 161 and another decision in Crl. Appeal No. 466/2014 titled as State v. Hari Krishan Guthala & Ors. decided on 21st April, 2014.

9. There is force in the submission of counsel for the appellant, and the ratio of this Court's decision in Edom Simon Chimezie (supra) is applicable to the facts of this case also. I consider it appropriate to reduce the sentence awarded to the appellant to the period already undergone by him, including the sentence in default of payment of fine as well. The appeal is allowed only to the aforesaid extent while the conviction of the appellant for the offences in question is upheld since there is no illegality or infirmity in the same. Consequently, the appellant, who is stated to be in custody be released forthwith if not wanted in any other case. Appellant be apprised of today's judgement through concerned Jail Superintendent.

10. The appeal and the applications including Crl. M.B. 737/2014 which is rendered infructuous are disposed off accordingly.

SUDERSHAN KUMAR MISRA JUDGE NOVEMBER 28, 2014/ AK