1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 332 OF 2010 Whitcombe Geoffrey William ...Appellant vs. Union of India & Anr. ...Respondents Mr.Taraq Sayyed and Mr.Sartaj Shaikh for the Appellant. Mr.D.N. Salvi for Respondent No.1. CORAM : V.M. KANADE, J. DATED : JUNE 17, 2010 P.C. :- 1 Heard the learned Counsel for the appellant and the learned Counsel for the Union of India. 2 The appellant has been convicted by the Special Judge for the offence punishable under Section 20(b)(ii)(c) read with 8(c) and 23(c) read with 8(c), 20(b)(ii)(c) and Section 28 of the NDPS 2 Act. The appellant herein pleaded guilty to the charge which was framed by the Special Judge and after the said charge was properly explained to him. In view of the plea recorded by the Special Judge, he was pleased to convict the appellant and sentenced him to suffer RI for 10 years and to pay fine of Rs.1 lakh on the two counts and in default, he was sentenced to undergo RI for three months. The trial court directed that the sentence should run concurrently. The appellant is in jail since 21st April, 2006. The Special Judge was pleased to pass the order of conviction by its judgment and order dated 13th August, 2007. The appellant is a British national and has filed a letter of request to the Ministry of Home Affairs, Government of India, for his repatriation to his country under the Transfer Agreement executed between United Kingdom and India for the purpose of serving the remaining part in a prison in UK as provided in the said Transfer Agreement. A letter of request was received by Indian authorities from British High Commission, New 3 Delhi, in which it is stated that under the British Legislation, the Government of UK will not be in a position to enforce six months sentence as provided by the Indian court in default of payment of fine of Rs.2 lakhs, therefore, request for repatriation was not accepted. In the appeal which is preferred by the appellant, the appellant is only seeking reduction of the in default sentence imposed by the Special Judge. It is submitted that the appellant is not in a position to pay the amount of fine imposed by the trial court. He submitted that the in default sentence may be reduced to 45 days on two grounds. It is submitted that the appellant has pleaded guilty to the charge levelled against him by the Special Judge and secondly, it is submitted that he has already undergone about 4 years of sentence out of the 10 years awarded by the Special Judge. 3 The learned Counsel for Union of India submitted to the orders of this court. 4 4 In my view, taking into consideration the aforesaid two circumstances and also taking into consideration the Transfer Agreement executed between India and UK and since the only impediment for the transfer as expressed by the British High Commission at New Delhi is that the additional sentence of six months imposed by the Special Judge on account of non-payment of the fine by the appellant, it would be appropriate if the said in default sentence is reduced from 180 days to 45 days. The appellant, secondly, is not challenging the order of the Special Judge on merits and he shall be undergoing the entire substantive sentence imposed by the Special Judge, Mumbai. Under these circumstances, therefore, the appeal is partly allowed. The conviction imposed by the Special Judge, Mumbai, is confirmed. However, so far as the in default sentence is concerned, the in default sentence of three months on each count of conviction is reduced to 20 days each on each count. 5 As a result, the sentence is reduced and the appellant shall now undergo 10 years of RI for the offence punishable under Sections 20(b)(ii)(c) read with 8(c) and 23(c) and Section 28 of the NDPS Act and shall pay fine of Rs.1 lakh each on each count and in default of payment of fine, shall undergo rigorous imprisonment for 20 days in the place of three months awarded by the Special Judge on each count and therefore, the total in default sentence for both the counts is reduced to 40 days instead of six months. 5 The appeal is partly allowed in the aforesaid terms and disposed of. 6 Certified copy expedited. (V.M. KANADE, J.)