The court has the discretion to reduce the sentence of an appellant who has already undergone a substantial portion of the sentence and who is a foreign national.

Headnote:
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 21 - SECTION 8(C) - SECTION 67 - CUSTOMS ACT, 1962 - SECTION 135-A - SECTION 11 - SECTION 79 - CONVICTION AND SENTENCE FOR POSSESSION OF HEROIN - APPEAL AGAINST CONVICTION AND SENTENCE - REDUCTION OF SENTENCE - NIGERIAN NATIONAL - LONG PERIOD OF INCARCERATION.
Fact of the Case:

The appellant, a Nigerian national, was convicted under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for possession of 800 grams of heroin. He was sentenced to 12 years of rigorous imprisonment and a fine of Rs. 1,00,000/-. The appellant challenged the conviction and sentence.
Finding of the Court:

The court upheld the conviction of the appellant, finding that the prosecution had established that the appellant was in possession of 800 grams of heroin on 9-7-1989. However, the court reduced the sentence to 10 years of rigorous imprisonment and a fine of Rs. 1,00,000/- in default of which the appellant would undergo rigorous imprisonment for 6 months.
Issues: 1. Whether the appellant was guilty of the offence under section 21 of the NDPS Act? 2. Whether the sentence imposed by the trial court was excessive?
Ratio Decidendi: 1. The court held that the prosecution had proved beyond reasonable doubt that the appellant was in possession of 800 grams of heroin on 9-7-1989. The court relied on the evidence of the panchas, the seizure memo, and the chemical analysis report to conclude that the appellant was guilty of the offence under section 21 of the NDPS Act. 2. The court considered the fact that the appellant was a Nigerian national and had been in jail since 9-7-1989. The court also noted that the appellant had already undergone 10 years of imprisonment. Taking these factors into account, the court reduced the sentence to 10 years of rigorous imprisonment and a fine of Rs. 1,00,000/-.
Final Decision: The appeal was partly allowed. The conviction of the appellant under section 21 of the NDPS Act was upheld, but the sentence was reduced to 10 years of rigorous imprisonment and a fine of Rs. 1,00,000/-. In default of payment of the fine, the appellant would undergo rigorous imprisonment for 6 months.

JUDGMENT - TRIVEDI D.K., J.:---The appellant-accused is a Nigerian National was placed for trial before the Special Judge for Greater Bombay in N.D.P.S. Case No. 762 of 1989 and has challenged the judgment and order of conviction recorded by the learned Special Judge, Greater Bombay, dated 28-4-1995 convicting the appellant-accused for the offences under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "N.D.P.S. Act") and the appellant-accused was ordered to suffer rigorous imprisonment for 12 years and to pay a fine of Rs. 1,00,000/- in default the appellant-accused to undergo rigorous imprisonment for one year.

2. As per the prosecution case the appellant-accused was occupying room No. 101 of the Hotel Green Star 8-7-1989 and was found in possession of 800 grams of heroin in contravention of the prohibition under section 8(c) of the N.D.P.S. Act which is punishable under section 21 of the said Act.

3. As per the charge framed against the appellant-accused it is the prosecution case that on 9-7-1989 at room No. 101 of Hotel Green Star, Colaba, Mumbai, the accused had purchased or possessed 800 grams of heroin valued at Rs. 1,60,000/- in contravention of the prohibition imposed under section 8(c) of the N.D.P.S. Act and thereby committed offence under section 21 of the N.D.P.S. Act and on the same day in the course of the same transaction made preparation to export 800 grams of heroin valued at Rs. 1,60,000/- in contravention of prohibition imposed under section 8(c) of the N.D.P.S. Act and accused has committed offence punishable under section 8(c) read with sections 23 and 30 of the N.D.P.S. Act and he was further charged that on the same day appellant-accused made preparation to export the said heroin out of India in contravention of the prohibition imposed under section 11 of the Customs Act, 1962 read with section 79 of the N.D.P.S. Act and accordingly the accused has committed offence under section 135-A of the Customs Act, 1962. The statement of the accused under section 67 of the N.D.P.S. Act was recorded by the Investigating Officer, N.C.B., Bombay, Shri Sawant on 10-7-1989.

4. During the trial the prosecution has also placed reliance upon the said statement of the accused recorded under section 67 of the N.D.P.S. Act dated 10-7-1989 which was on the record at Exhibit 40. As per the prosecution case the sample drawn, seized from the accused were sent for analysis to the Director of Forensic Science Laboratory, Bombay and as per the report submitted by the Assistant Chemical Analyser vide his letter dated 25-7-1989 and as per the said report the said sample was found and it was detected as heroin. During the trial the chemical analyser report and qualitative report were produced at Exhibits 23 and 22 and as per the said opinion it was opined that the sample was a preparation of Diacety Morphine, a narcotic drug as defined under the N.D.P.S. Act.

5. The defence of the accused was of complete denial and according to him no search and seizure has taken place in his presence and the accused is falsely implicated in the case.

6. The learned Special Judge on considering the role as well as documentary evidence led before him and considering the defence of the accused under section 313 of the Cri.P.C. has accepted the prosecution case and held that the appellant-accused was occupying the room No. 101 of Hotel Green Star on 9-7-1989 and further proved that as per the evidence led by the prosecution from his possession 800 grams of heroin was recovered from room No. 101 of Hotel Green Star on 9-7-1989 at about 4.30 p.m. in contravention of the prohibition under the N.D.P.S. Act, and while considering the provisions of the N.D.P.S. Act and on considering the evidence, the learned Special Judge has held that the accused has committed an offence under section 8(c) which is punishable under section 21 of the N.D.P.S. Act. However, the learned Special Judge has not accepted the p

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