- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO.493 OF 2005 APPEAL NO.493 OF 2005 APPEAL NO.493 OF 2005 Abaubakar Sow ...Appellant vs. Shri P.V.Nayak (I.O.Narcotic Cell) Custom Preventive, Mumbai ...Respondent Ms Rupali Shinde for the Appellant Mr.P.A.Pol, A.P.P. for State Mr.J.C.Satpute with Mr.H.U.Mehta for respondent no.1. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : FEBRUARY 16,2009 : FEBRUARY 16,2009 : FEBRUARY 16,2009 JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard the learned counsel for the appellant and the learned counsel for the 1st respondent. The appellant has been convicted for the offence punishable under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the said Act). He has been sentenced to suffer R.I for 10 years and to pay fine of Rs.1 lac. In default to payment of fine, he has been sentenced to undergo R.I for 6 months. The appellant was arrested on 15th December 1998. He was not enlarged on bail during the pendency of trial as well as during the pendency of Appeal. 2. The learned counsel for the Appellant has made limited submissions confined to sentence. She pointed out that the Appellant has already undergone substantive sentence of R.I for 10 years. She pointed out that the Appellant has also - 2 - undergone sentence for two months in default of payment of fine amount of Rs.1 lac. She submitted that considering the facts and circumstances of the case, the Appellant be let off on the sentence which is already undergone. 3. The learned counsel for the 1st respondent pointed out that the Appellant was found in possession of the 3 kgs of Heroin. He submitted that the Appellant is a national of Republic of Gunee and his Visa has not been renewed. He submitted that even if this court is accepting the submission of the Appellant, necessary steps will have to be taken to deport him. 4. I have carefully considered the submissions. The Appellant was admittedly arrested on 15th December 1998. He continued to be in jail through out the proceeding of trial and during the pendency of this Appeal. Thus, on 14th December 2008, he completed 10 years in custody. Thereafter, he had undergone sentence for further period of 2 months. 5. The incident is of 15th December 1998. The material on record shows that at that time the age of the Appellant was about 31/32 years. As pointed out earlier, he has undergone sentence of period of 10 years and 2 months. The learned counsel for the Appellant placed reliance on the decision of this court in case of Dil Bahadur vs. State of Goa (2008 All - 3 - M.R. (Cri.) 457). 6. Considering the aforesaid peculiar facts of the case, the appellant deserves to be let off on the sentence which is already undergone. As stated earlier the entire substantive sentence has been already undergone and in addition to that in default of payment of fine, he has undergone R.I. for 2 months. 7. Hence, Appeal is disposed of by passing the following order : i) The conviction of the appellant for offence punishable under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is hereby confirmed. The substantive sentence of R.I. for 10 years is also confirmed. The sentence to pay fine of Rs.1 lac is also hereby confirmed. However, the sentence in default of payment of fine is reduced to the one which is already undergone by the appellant. ii) The appellant shall be immediately set at liberty unless he is required in some other matter. iii) Rest of the impugned Judgment and Order is confirmed. It will be open for the 1st respondent-Union of India to - 4 - submit a copy of this order to the concerned Embassy. It will be also open for the 1st respondent-Union of India to initiate proceeding for deporting the Appellant from India. iv) Service of writ of this order by Hamdust is allowed. v) Parties to act upon an authenticated copy of this order. JUDGE JUDGE JUDGE