Delhi High Court
Azubuogu Ekene Patric vs State Of Nct Of Delhi on 12 June, 2017
$1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on : 12th June, 2017
+ CRL.A. 861/2016
AZUBUOGU EKENE PATRIC ..... APPELLANT
Through: Mr. Sumeet Verma and Mr.
Abhijeet Sharma, Advocates with appellant
in custody
versus
STATE OF NCT OF DELHI ..... RESPONDENT
Through: Ms. Aashaa Tiwari, APP with SI
Pawan Kumar, Special Cell
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. By the appeal at hand, the appellant had brought challenge to
the judgment dated 05.03.2016 passed by Special Judge, Narcotic
Drugs and Psychotropic Substances Act, 1985 (NDPS Act) in sessions
case no.28/11 arising out of a report under Section 173 of the Code of
Criminal Procedure, 1973 (Cr.P.C.) submitted on conclusion of
investigation into first information report no.31/11 of police station
Special Cell whereby the appellant was held guilty and convicted for
offences punishable under Section 21 (b) of NDPS Act and under
Section 14-A of Foreigners Act, 1946 (Foreigners Act) as also to the
order on sentence passed on 15.03.2016 in its wake.
2. The gravamen of the charge against the appellant in the case
presented before the Special Judge primarily was that the appellant
and co-accused Dennis Sopuluchukwu (since declared proclaimed
offender), both Nigerian nationals, were intercepted and apprehended
on 17.05.2011 at about 5.55 p.m. in the area of Sector-7, Dwarka,
Delhi wherein the appellant was found having received from the co-
accused a packet which, upon being checked, was found to contain
prohibited substance cocaine, it being found to weigh 10 grams. It
may be added that the co-accused was also found having in his
possession another similar packet of same substance of same quantity.
After compliance with the provisions of NDPS Act, the recovered
substance was taken into possession, samples having been drawn
therefrom, which upon being sent to Forensic Science Laboratory
(FSL) confirmed it to be cocaine. It was found that the appellant did
not have in his possession a valid passport or visa, his explanation
being that he had entered India on a valid passport and visa in May
2008 for business purpose and having lost the said travel documents
he had reported the matter to Indian police as also to the Nigerian
Embassy, the latter having later issued, on 02.04.2013, a new passport
(Ex. DW1/A) in his favour, it being valid for and upto 01.04.2018.
3. The appellant contested the case pleading not guilty to the
charge that was framed on the basis of evidence presented. After trial,
he was held guilty and convicted on both counts. By order dated
15.03.2016, the learned trial judge awarded rigorous imprisonment for
four years with fine of Rs.5,000/- each on the two counts and in case
of default in the payment of fine adding simple imprisonment of one
month each. The order on sentence noted that during investigation,
the appellant had been in custody from 17.05.2011 till 16.02.2013
where-after we was enlarged on bail. This is confirmed by the
nominal roll dated 09.06.2017 which, however, also indicates that
during the period of release on bail, he was also arrested in yet another
case, it being FIR no.15/15 of police station Crime Branch also
involving offences punishable under Section 21 of NDPS Act and
Section 14 of Foreigners Act, which case is still pending trial.
4. When the appeal came up for hearing, the appellant submitted
that he wanted to make clean breast of his guilt and, therefore, would
like to admit the facts concerning the two offences for which he has
been held guilty and convicted by the trial court. As requested by the
appellant, through his counsel, his statement has been recorded
separately. By the said statement, he has admitted that he was found
having in his possession 10 grams of cocaine on 17.05.2011 and that
on the said date he did not have any valid passport or visa. Having
gone through the evidence led on record, even otherwise, there is no
reason why the correctness of the allegations constituting the charge
for the two offences against him should be doubted. His guilt has
been properly brought home by evidence adduced. In view of the
facts now admitted additionally, it is clear that the conviction for the
offences under Section 21(b) of NDPS Act and Section 14A of the
Foreigners Act must be maintained. The appeal to that extent must be
dismissed. It is accordingly disposed of.
5. Coming to the question of sentence, the nominal roll indicates
that the appellant has already undergone, till 09.06.2017, incarceration
for a total period of 3 years 11 months 9 days. Having regard to the
nature of offences committed, particularly the offence under Section
21 of NDPS Act, the sentence of rigorous imprisonment for 4 years as
imposed by the learned trial judge on each count appears to be just and
proper. However, there is merit in the prayer for reducing the rigor of
the sentence to the extent of pecuniary punishment and also a need for
clarification that the punishment on each count ought to run
concurrently.
6. For the foregoing reasons, the order on sentence is modified, to
the effect that in case of default in payment of fine, he shall undergo
two days simple imprisonment on each count.
7. The appeal is disposed of with above modification of the
sentence. The Superintendent Jail, Tihar shall be suitably informed
with a copy of the judgment for necessary compliance.
R.K.GAUBA, J.
JUNE 12, 2017
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