Judgment:
Prayer:Criminal Appeal filed under Section 374(2) of CrPC. r/w 36-B of N.D.P.S. Act, 1985, against the judgment of conviction and sentence, dated 21.11.2007, made in C.C.No.154 of 2003 on the file of the learned Special Judge/Additional Special Judge (NDPS Act), Chennai.
J U D G M E N T
1. By mutual consent, the appeal itself is taken up for final disposal at the time of admission, since the learned counsel for the appellant made an endorsement that he is confining his argument only to the question of modification of the default sentence. Mr.N.P.Kumar, the learned Special Public Prosecutor for N.C.B. cases also agreed for the same.
2.Mr.T.K.Sampath, learned counsel appearing for the appellant submitted that he is confining his argument only to the question of modification of default sentence and he also made an endorsement to that effect. He further submitted that the appellant herein was arrayed as A2 and accused 1 to 3 were convicted for the offences under Sections 8(c) r/w 21(c) of N.D.P.S. Act and they were sentenced to undergo 10 years rigourous imprisonment each and to pay a fine of Rs.1,00,000/- each in default in payment to undergo one year rigourous imprisonment. The period of detention already undergone by the accused shall be set off under Section 428 Cr.P.C., against which, the present appeal has been preferred by appellant/A2.
3.Learned counsel for the appellant/A2 further contended that after confirming conviction, A2 is languishing in judicial custody on 3.11.2002, which is more than nine years and no one is there to look after his family. It is further submitted that the appellant is not having any financial source to pay the fine amount of Rs.1,00,000/- as imposed by the trial Court. His entire family members are suffering in view of the confinement of the accused on the basis of the conviction and sentence imposed on him by the trial Court. Hence, he prayed that the default sentence one year rigourous imprisonment may be reduced to one month rigourous imprisonment. To substantiate his arguments, he relied upon the judgments rendered by our High Court in Crl.A.No.291 of 2010 and M.P.No.1 of 2010 and Crl.A.No.689 of 2008 and also Apex Court judgment reported in 2006 Drugs Cases (Narcotics) 707 (Balwinder Singh v. Asst. Commissioner Customs and Central Excise).
4.Resisting the same, Mr.N.P.Kumar, the learned Special Public Prosecutor for N.C.B. cases, would submit that A2 handed over the contraband being 14.385 kgs of Heroin to A1 and in turn, A1 handed over to A3 and at that time, they were caught hold by the respondent and the contraband was seized. They are possessing heavy quantities of contraband and they also voluntarily gave statements under Section 67 of N.D.P.S. Act. Further, at the time of questioning under Section 67 of N.D.P.S. Act, A2 stated that he had previously involved in the same kind of offence by handing over contraband to A1. It is further contended that in view of such offence for which the appellant/A2 has been convicted, the question of modification of default sentence does not arise and hence, he prayed for dismissal of the appeal.
5.I have given my careful consideration to the rival submissions made by both sides and also perused the entire materials available on record.
6.It is true, the appellant, who was arrayed as A2, convicted and sentenced by the trial Court as stated above. It is seen that the sentence imposed on him was 10 years rigourous imprisonment and the fine of Rs.1,00,000/- in default in payment to undergo one year rigourous imprisonment. It is also pertinent to note that appellant/A2 was arrested on 3.11.2002 and from the date onwards, he is languishing in jail. Now the only question arises for consideration of this Court is to the effect whether the appellant deserves for the modification of default sentence.
7.At this juncture, it is appropriate to consider the decision of Apex Court reported in 2006 Drugs Cases (Narcotics) 707 (Balwinder Singh v. Asst. Commissioner Customs and Central Excise), in which, it is stated as follows: .. .. The sentence imposed on him was imprisonment for a period of 14 years. Having regard to the facts and circumstances of this case, we reduce the sentence from 14 years to 10 years each for the offences under the NDPS Act and for the offence under Section 120-B IPC. The sentences shall run concurrently. The direction to pay fine is maintained, but the default sentences shall also run concurrently. In the above decision, the accused was convicted for three counts. So the default sentence has been ordered to run concurrently.
8.As per the decision of this Court made in Crl.A.No.291 of 2010 & M.P.No.1 of 2010, the Hon'ble Mr.Justice K.N.Basha reduced the default sentence from one year rigourous imprisonment to one month rigourous imprisonment and the same has been followed by the Judgment of this Court made in Crl.A.No.689 of 2008 by the Hon'ble Justice Mr.S.Nagamuthu. Considering the above decisions, the appellant/A2 is only a Carrier and he received the contraband and handed over to A1. In such circumstances, the above citation is squarely applicable to the facts of the present case.
9.Considering the fact that he is languishing in prison from 3.11.2002 and since the appellant/A2 is only a Carrier, I am inclined to reduce the default sentence from one year rigourous imprisonment to one month rigourous imprisonment.
10.Accordingly, this Court is constrained to modify only the default sentence as imposed by the trial Court from one year rigourous imprisonment to one month rigourous imprisonment.
11.With the above modification, the criminal Appeal is dismissed. Consequently, connected miscellaneous petition is closed.