MP 1 APEAL593_06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 593 OF 2006 1. Olatunde Harding @ Ikenna Ik Obikwerugu @ I. K. Bossman, aged about 47 years. Residing at Ideomi Village, Idemili Local Government, Anambra State, Nigeria. 2. Chuma Okere, aged about 29 years, Residing at Village Umouji, P.O. Onyche, Anambra State, Nigeria. and both presently undergoing sentence at Kolhapur Central Prison, Kolhapur ... Appellants Versus 1. Union of India (At the instance of Intelligence Officer, Narcotics Control Bureau, 3rd Floor, Exchange Building, Sprott Road, Ballard Estate, Mumbai-400 038 2. The State of Maharashtra ... Respondents WITH CRIMINAL APPEAL NO. 597 OF 2006 Ms. Arumagam Coopaman @ Diana Paulsen @ Rita, aged about 39 years, residing at Vistaero Apartments, Flat No.718, 12-Mitchell Street-Berea, Off Louis Botha Avenue North, Johannesburg, South Afrika, and presently undergoing sentence at Byculla Central Prison, Mumbai ... Appellant Versus 1. Union of India (At the instance of Intelligence Officer, Narcotics Control Bureau, 3rd Floor, Exchange Building, Sprott Road, Ballard Estate, Mumbai-400 038 2. The State of Maharashtra ... Respondents Mr. Anil Lalla, Advocate i/b. M/s. Lalla and Lalla for the Appellant. Mr. Sandeep K. Shinde, Special Public Prosecutor for the Respondent No.1. Smt. P. P. Shinde, APP for the Respondent No.2 State. CORAM : J. H. BHATIA, J. DATE : 14TH OCTOBER 2011 MP 2 APEAL593_06 ORAL JUDGMENT : These appeals are preferred by the original accused Nos. 1, 2 and 3 against the judgment and order passed in NDPS Special Case No. 41 of 2002 by the learned Special Judge, Greater Bombay whereby the accused were convicted for the offences under Section 8(c) r/w. Section 21 NDPS Act and were sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/- each and in default to pay fine to undergo further rigorous imprisonment for one year. They were also convicted for the offences under Section 25 r/w. Section 29 of the NDPS Act but no separate sentence was passed. 2. Prosecution case, in brief, is that on 09.11.2001, the officer of Narcotics Control Bureau received information that one Nigerian national namely I. K. Bossman, that is, accused No.1 was staying in Flat No.202, C-35, Unique Garden Building, Shanti Park, Mira Road, District-Thane and was trafficking in cocaine and heroin in large quantities and had also stored the drugs in the said flat. There was also information that on 10.11.2001 between 8.00 a.m. to 9.00 a.m., some foreign buyers would be coming to the said flat for purchasing huge quantity of heroin. After completing certain formalities, the officers of Narcotics Control Bureau kept surveillance around that flat and after one foreign lady entered into the flat, some officers of Narcotics Control Bureau along with the Panchas knocked the door of that flat. The door was opened by the accused No.1. During the search, from different packets, total 11.450 kgs of heroin was seized. Samples of 5 grams each were taken and sealed. The remaining drug was also similarly repacked, sealed and seized under a Panchnama. The C.A. report confirms that the samples were of heroin. During the investigation, in all, six persons were arrested, and after investigation, all those six accused persons were put to trial. After the trial, accused Nos. 1, 2 and 3, who are appellants before the Court, were convicted and sentenced as stated above, while, accused Nos. 4 to 6 were acquitted of all the charges. MP 3 APEAL593_06 3. The learned Counsel for the accused appellants states that the accused persons are already in custody and jail since 10.11.2001, and in few days, they are likely to complete the substantive sentence of imprisonment. He made a statement that he would not press the appeal on merits and would not challenge the conviction. However, he urged that the sentence of imprisonment in default to pay fine is excessive and may be reasonably reduced. Learned Special Public Prosecutor has no objection to pass appropriate orders in respect of the sentence of imprisonment in default to pay fine. 4. As the provisions for remission of sentence of imprisonment are not applicable to the cases where the accused are convicted under the NDPS Act, inspite of the good conduct and behaviour of the accused during the period when they are undergoing the sentence of imprisonment, they do not get any benefit of remission. The accused persons were arrested on 10.11.2001, and since then, they are continuously in jail without any remission or parole. Their substantive sentence of imprisonment would be completing on 09.11.2011. The learned Counsel contends that the appellants are not in a position to pay fine, and because of that reason, they will have to remain in jail for one year more if the sentence of imprisonment in default to pay fine is maintained. Taking into consideration the facts and circumstances, in my opinion, sentence of imprisonment in default to pay fine may be reduced to three months to meet the ends of justice. 5. Therefore, the appeals are partly allowed. While the substantive sentence of imprisonment for ten years as well as fine is maintained, the sentence of imprisonment for one year in default to pay fine of Rs.1,00,000/- is reduced to the imprisonment for three months. 6. The appeals stand disposed of accordingly. (J. H. BHATIA, J)