Madras High Court
James Okafor @ Lacky vs The State Rep. By on 23 June, 2022
Crl.A.No.58 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.06.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.No.58 of 2020
James Okafor @ Lacky .. Appellant
Vs
The State rep. by
The Intelligence Officer
Narcotics Control Bureau
Chennai Zonal Unit, Chennai.
NCB file No.48/1/6/2012-NCB/MDS. .. Respondent
Prayer: Criminal Appeal filed under Section 374(2) of CRPC, to set aside
the judgment dated 05.12.2017 in C.C.No.161 of 2012 on the file of the
Additional district judge/Presiding Officer, Special Court for Essential
Commodities Act Cases, Coimbatore and allow the appeal.
For the Appellant : Mr.S.Ayanraja Jothee
For the Respondent : Mr.N.P.Kumar
Special Public Prosecutor
ORDER
This appeal is filed aggrieved by the judgment of the learned
Additional District Judge / Presiding Officer, Special Court for Essential
Commodities Act Cases, Coimbatore, dated 05.12.2017 in C.C.No.161 of
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Crl.A.No.58 of 2020
2012 in and by which the petitioner was convicted for the offences under
Section 29 of the NDPS Act and was sentenced to undergo rigorous
imprisonment for a period of ten years and to pay a fine of Rs.1 lakh and in
default of payment of fine, to undergo rigorous imprisonment for a period
of one year; and for the offence under Section 8(c) r/w 21(c) of the NDPS
Act and sentenced to under go rigorous imprisonment for a period of ten
years and to pay a fine of Rs.1 lakh and in default of payment of fine, to
undergo rigorous imprisonment for a period of one year; and for the
offences under Section 8(c) r/w 28 of the NDPS Act to undergo rigorous
imprisonment for a period of ten years and to pay fine of Rs.1 lakh and in
default to payment of fine, to undergo rigorous imprisonment for one year.
2. The case of the prosecution is that the first and second accused
entered into criminal conspiracy at Delhi in the year 2011 and 2012 to
finance, procure, possess, transport and illegally export heroine and
cocaine (Narcotic Drugs) out of India to Belgium. On 23.05.2012, at about
12.20 Hours, Mr.K.R.Srikanth, Intelligence Officer, NCB, received an
information over office telephone from one Vijay Robert, the Branch
Manager, DTDC Courier and Cargo Ltd., Avinashi Road, P N Palayam,
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Crl.A.No.58 of 2020
Coimbatore, which upon instructions from the Superintendent Rakesh
Kumar, further conveyed to Intelligence Office over office phone on the
same day. At that time, about 03.00 Hours, one Nigerian national by name
James Okafor, has booked a consignment on 22.05.2012 to Belgium and
the goods are suspected to conceal narcotic drugs in them. The said James
also informed the Courier Service that he may be coming back in the
morning of 24.05.2012 to determine the status of the consignment. If the
goods are properly checked, the narcotic drugs may be seized and the
sender may be sent to prison thereto. Pursuant to which, the NCB officials
went to the DTDC Courier and Cargo Ltd., Coimbatore and conducted the
seizure proceedings in the presence of the witnesses, in which, the
contraband was seized.
3. Pursuant thereto, a complaint was filed and the accused denied
the charges and stood trial. The prosecution examined P.W.1 to P.W.9 to
bring home the charges and marked Exhibit P.1 to P.37 and produced
M.O.1 to M.O.9 before the Trial Court. Upon being questioned about the
material evidence on record and the incriminating circumstances, the
accused denied the same as false. However, thereafter, no evidence was let
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Crl.A.No.58 of 2020
in on behalf of the defence and therefore, the Trial Court proceeded to hear
learned Public Prosecutor and learned Counsel for the accused and after
appraisal of the evidences, by the judgment dated 05.12.2017, convicted
the accused of all the three charges and sentenced as aforesaid.
4. Learned counsel for the appellant, even though started the
arguments on merits, after some time, considering the fact that the
appellant has already undergone the substantial sentence of ten years and
is now undergoing only the default sentence of payment of fine, would
restrict his arguments in respect of the default sentence alone. Learned
counsel would submit that the petitioner is a foreign national and there is
nobody else to help him and he is in penury and is under dire-straits and
therefore, he is unable to pay the fine amount of Rs.1 lakh each in respect
of all the three counts totaling to the amount of Rs.3 lakhs.
5. Learned Public Prosecutor appearing on behalf of the respondent
would submit that the Trial Court has rightly convicted the petitioner and
in the case of this nature, where huge haul of narcotic substances was
recovered, the imposition of the fine amount being a minimum amount, as
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Crl.A.No.58 of 2020
prescribed by the Act is mandatory and therefore he would submit that if
the fine amount is not paid, the accused has no other option than to
undergo default sentence which will not run concurrently but after the
period of substantial sentence and therefore, the appellant has to undergo
the default sentence. He would also submit that it is a fact that the
appellant has completed ten years of rigorous imprisonment being the
substantial sentence.
6. I have considered the rival submissions made on behalf of either
side and perused the material records of this case.
7. As submitted by the learned counsel on either side, the appellant
has already undergone the substantial sentence of ten years of rigorous
imprisonment. As rightly contented by learned Public Prosecutor, the Trial
Court has imposed only the minimum fine of Rs.1 lakh and therefore, the
said amount cannot be modified or varied by this Court. However,
considering the fact that the appellant accused is totally not in a position to
pay the fine amount of Rs.3 lakhs and being a foreigner and is having no
other help or contact and also considering the fact that he is in jail for
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Crl.A.No.58 of 2020
more than ten years, I am inclined to modify the default sentence in respect
of non-payment of fine alone from a period of one year in respect of each
count to one month in respect of each count and the accused will undergo
default sentence of one month each consecutively, respect of the three
counts. Learned counsel for the petitioner would submit that he has now
completed a substantial sentence and the default sentence in respect of one
count. He has to undergo the remaining two months default sentence for
the balance two counts, and thereafter he shall be released from the prison,
if he is not wanted in respect of any other case. It goes without saying that
after release of the petitioner, being a foreign national, he will be only
taken to the camp in accordance with the provisions of the Foreigners Act.
Index : yes/no 23.06.2022
Speaking order/Non-speaking order
drm
To
1. Additional District Judge/Presiding Officer
Special Court for Essential Commodities Act Cases, Coimbatore.
2. The Public Prosecutor, High Court of Madras.
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Crl.A.No.58 of 2020
D.BHARATHA CHAKRAVARTHY. J.,
drm
Crl.A.No.58 of 2020
23.06.2022
https://www.mhc.tn.gov.in/judis
