Ma Sol Baillo vs State (Dri) Of Delhi
2016 Latest Caselaw 1347 Del

$-22
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                               DECIDED ON : 19th FEBRUARY, 2016

+            CRL.A. 164/2013 & CRL.M.A.No.2916/2016

      MA SOL BAILLO                                    ..... Appellant

                         Through :   Ms.Sunita Arora, Advocate with
                                     Mr.Krishan Kumar, Advocate.


                         versus

      STATE (DRI) OF DELHI                             ..... Respondent

                         Through :   Ms.Pooja Bhaskar, Proxy counsel
                                     for Mr.Satish Aggarwala,
                                     Advocate.


       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Oral)

1. The instant appeal has been filed by the appellant - Ma Sol

Baillo to challenge the legality and correctness of a judgment dated

18.09.2012 of learned Additional Sessions Judge in Sessions Case

No.71A/2006 under Sections 21/23 NDPS Act by which she was held

guilty for committing offences 21(c) & 23(c) read with Section 28 of the

NDPS Act. By an order dated 20.09.2012, she was awarded RI for ten

years with fine `1 lac each under both the heads. The sentences were to

operate concurrently.

2. In nutshell, allegations against the appellant stated in the

complaint were that on 12.06.2006 at about 05.15 p.m., an intelligence

was gathered by K.S.Ratra, Intelligence Officer that a lady i.e. the

appellant holding Philippines passport was bound for travel to Bangkok

by flight No.TG-316 at 10.00 p.m. from IGI Airport with one checked-in-

baggage (suitcase) containing 2 kg. of heroin in false bottom. The said

information was reduced into writing (Ex.PW-1/A). The team arrived at

the airport and intercepted the appellant holding the Philippines pass-port.

She was apprised about the secret intelligence. Notice under Section 50 of

NDPS Act (Ex.PW-7/B) was served upon her. On search of the suit case,

she was found in possession of 2.100 kg. of heroin; the net weight of

which was 2 kg. Subsequent proceedings were conducted during

investigation. Upon completion of the investigation, a complaint was filed

in the Court. The prosecution examined twelve witnesses to prove its case.

In 313 Cr.P.C. statement the appellant denied her involvement in the

crime and pleaded false implication. The trial resulted in her conviction as

aforesaid.

3. During the course of arguments, appellant's counsel on

instructions stated at Bar that the appellant has opted not to challenge the

findings of the Trial Court on conviction. She, however, prayed to modify

the sentence order as the appellant has already undergone substantive

sentence awarded to her. She is unable to pay the huge fine being a

foreign national and in custody for the last more than nine years.

4. Since the appellant has opted to accept the findings of the

Trial Court on conviction, in the presence of overwhelming evidence, her

conviction under Sections 21(c) & 23(c) read with Section 28 of NDPS

Act is affirmed.

5. Regarding Sentence Order, it transpires that she has already

undergone almost the entire substantive sentence awarded to her. Nominal

Roll dated 14.08.2015 reveals that she has remained in custody for nine

years, two months and two days as on 14.08.2015. She is not involved in

any other criminal case and is not a previous convict. Substantive sentence

i.e. RI for ten years cannot be modified or altered as it is the minimum

sentence prescribed under the Act. The appellant has been further

sentenced to pay a fine of `1 lac each under both the heads and in default

of its payment, she is to suffer SI for three months each. The appellant is

unable to pay the fine but since this is the minimum amount of fine which

is prescribed under the Section, it cannot be changed.

6. The appellant was earlier granted interim bail for a period of

four weeks from the date of release on her furnishing personal bond in the

sum of `10,000/- with one surety of the like amount vide order dated

18.09.2015. She, however, could not furnish the required surety bonds due

to her poor economic condition. Sentence order records that the appellant

is aged around 44 years and is having sole responsibility to maintain her

three children in her native country. Her younger son has a hole in his

heart.

7. In the case of 'Shahejadkhan Mahebubkhan Pathan vs. State

of Gujarat', 2012 (10) SCALE 21, decided on 05.10.2012, the 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 `1,50,000/- was upheld but default sentence was reduced from RI

for 3 years to RI for 6 months. The appellant therein was found in

possession of 500 grams of brown sugar and was convicted for the offence

punishable under Section 8(c), 21 and 29 of NDPS Act. The Division

Bench of Gujarat High Court had dismissed the Crl. A. No. 11 & 75/2002

vide order dated 08.07.2002.

8. Taking into consideration Section 30 of Cr.P.C. and the

judgment of 'Shahejadkhan Mahebubkhan Pathan vs. State of Gujarat',

(supra), 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.

9. Appeal stands disposed of in the above terms. Pending

application also stands disposed of. Trial Court record be sent back

forthwith with the copy of the order. A copy of the order be sent to the

Superintendent Jail for information.

(S.P.GARG) JUDGE

FEBRUARY 19, 2016 / tr