Delhi High Court
Dario Vuanello vs Customs on 29 January, 2016
Author: Suresh Kait
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 29th January, 2016
+ CRL.A. 686/2001
DARIO VUANELLO ..... Appellant
Represented by: None.
Versus
CUSTOMS ..... Respondent
Represented by: Mr. Satish Aggarwala and
Ms. Pooja Bhaskar, Advs.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. By way of the present appeal filed under Section 374 (2) Cr.P.C.
appellant has challenged the order dated 31.08.2001, whereby he was held
guilty for the offences punishable under Section 20 (b) (ii) and Section 28
read with Section 23 of NDPS Act.
2. Further challenged the order on sentence of the even date, whereby
he was sentenced to undergo RI for a period of 10 years with fine of
Rs.1,00,000/- for the offence punishable under Section 20 (b) (ii) of
NDPS Act and in default of payment of fine, he was further sentenced to
undergo SI for a period of six months.
3. As regards the offence under Section 28 read with Section 23 of
NDPS Act, the appellant was sentenced to undergo RI for a period of 10
years with fine of Rs.1,00,000/- and in default of payment of fine, he was
further sentenced to undergo SI for six months.
4. Vide order dated 12.07.2006, the sentence of the appellant was
suspended. Since, appeared none on his behalf, vide order dated
14.07.2015, non-bailable warrants to be executed through SHO concerned
were directed to be issued against the appellant. However, the said
warrants could not be executed upon the appellant. Moreover, the surety
of the appellant namely Mr. Ajay Kumar Baluni moved an application
vide Crl. M.A. 14776/2015 on the ground that he is not able to produce
the appellant and sought discharge of his surety bond. Accordingly, vide
order dated 07.10.2015, the said surety was directed to deposit the surety
bond amount of Rs.50,000/- with the Registrar (Appellate).
5. It is established from order dated 23.11.2015 passed by the
Registrar (Original) that the surety of the appellant had deposited two
drafts being no. 247728 and 247729 for an amount of Rs.40,000/- and
Rs.10,000/- respectively issued by UCO Bank, Delhi High Court Branch
in terms of order dated 07.10.2015.
6. As noted above, presence of convict could not be procured.
Identical situation has been dealt by the Division Bench of this Court in
Mukesh v. State 152 (2008) DLT 201 (DB) and pertinent observations
have been made as under:
'In most cases, the interests of convict may not be
adequately safeguarded by the appointment of
Advocates in Legal Aid Scheme or by Amicus Curiae.
The appellant would be satisfied only if his appeal is
argued by an Advocate of his choice. On the other
hand, a party which chooses not to participate in the
hearing of his appeal can scarcely complain of
violations of his fundamental right to remonstrate
against the curtailment of his personal freedom. A
convict cannot abuse the process and defeat criminal
justice'
7. Recently, the Supreme Court in Mohd. Sukur Ali v. State of Assam
(2011) 4 SCC 729 has reiterated that a Criminal Appeal ought to be
decided in the absence of the Counsel.
8. The aforesaid observations made in Mukesh (Supra) and Mohd.
Sukur Ali (Supra) is aptly applied to the instant case. Moreover, none
appeared on behalf of the appellant, despite sufficient opportunities given
and his sentence has already been suspended by this Court during the
pendency of appeal. Thus, it seems that appellant is not interested to
pursue the present appeal.
9. Accordingly, the present appeal is dismissed.
10. TCR be remitted henceforth with copy of this order.
11. Let learned Trial Court/Successor Court to procure the appearance
of convict and commit him to Prison for serving the remaining sentence.
SURESH KAIT, J
JANUARY 29, 2016
jg
