CHARLES OKEKE Vs. ASSISTANT COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THE appellant a foreign National was tried before the learned Special Judge, Greater Bombay in N.D.P.S. Special Case No.1340 of 1988 for the charges under section 8(c) read with Section 21 of the NDPS Act and secondly under Section 8(c) read with Sections 23 and 28 of the NDPS Act and thirdly under Section 135(1)(a) read with Section 135(1)(ii) of the Customs Act.

(2.) BRIEFLY stated the case against the appellant is as follows:

(3.) WE have heard Ms.Kaushik for the appellant, Mr.Agrawal for Respondent No.1 and Mr.Borulkar, APP. Ms.Kaushik did not press the appeal on merits as regards the conviction of the appellant. She however pointed out that the appellant has been sentenced to maximum 10 years of substantive sentence. He has also been awarded fine of Rs.1,00,000/- on each of the two counts under the NDPS Act. It was further pointed out that the appellant was arrested on 13th September 1988 and since then he is in custody. It was submitted that the appellant having been arrested prior to introduction of section 32-A of the NDPS Act, the said provision disentitling a person convicted under the provisions of the NDPS Act for remission will not be applicable to him, she, therefore, submitted that the appellant has undergone substantive sentences with remissions. She also pointed out that the appellant has also undergone nearly seven months of default sentence. It was urged by the learned counsel that the appellant being a foreign national, is not in a position to pay the fine amount of Rs.1,00,000/-. She submitted that the appellant comes from a poor family and has merely acted as a carrier. She urged that the default sentences awarded by the trial Court are excessive. She, therefore, urged that the default sentences should be reduced to a period of sentence already undergone by the appellant. As the appellant is a foreign national and will not be in a position to pay the fine, it would be unjust to him to continue in jail for a further period of one year on account of default sentences. Mr.Agrawal in fairness did not challenge the submissions made on behalf of the appellant for reducing the default sentences as suggested by learned counsel for the appellant.