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. 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 prosecution case in respect of the charge that the accused made preparation to export the said heroin seized from the accused to the extent of 800 grams in contravention of the prohibition under the N.D.P.S. Act and further held that the prosecution has failed to prove that accused made preparation to export the said heroin out of India in contravention of prohibition imposed under the Customs Act. 7. In the appeal memo several grounds have been taken while challenging the judgment and order of conviction and sentence. Ms. Amrolia appearing on behalf of the appellant-accused has took us through the entire evidence as well as the judgment under challenge and after going through the same, Ms. Amrolia is not in a position to challenge the order of conviction recorded by the learned Special Judge based on evidence when the prosecution has established that on 9-7-1989 the appellant occupied room No. 101 of Hotel Green Star at Colaba, Bombay, and from his possession 800 grams of heroin was seized in presence of panchas, under panchanama and the learned Special Judge has accepted the prosecution case regarding seizure of 800 grams of heroin from the appellant-accused. Accordingly Ms. Amrolia has fairly conceded about the order of conviction recorded by the learned Special Judge. However, according to her while arguing the matter, she submitted that looking to the defence of the accused and as the appellant-accused is a Nigerian National and at the relevant time he was prosecuting his study in New Law College, Mahim, and he was law student, the sentence imposed on the appellant-accused be reduced as the appellant-accused is from the day of his arrest, namely, 9-7-1989 in jail, and till today in view of the order of conviction and sentence recorded he is in jail even after the judgment and order of conviction recorded by the learned Special Judge on 28-4-1995 and considering the said period he is in jail for about 10 years. She accordingly submitted that the order of sentence imposed by the learned Special Judge imposing rigorous imprisonment for 12 years be reduced as well as default clause for non-payment of fine and the sentence imposed also be reduced. 8. We have heard Mr. Thakur for respondent No. 1 as well as Mr. Shingarpure, the learned A.P.P. for respondent No. 2-State. 9. 8. We have heard Mr. Thakur for respondent No. 1 as well as Mr. Shingarpure, the learned A.P.P. for respondent No. 2-State. 9. Considering the submissions made by Ms. Amrolia and on considering the submissions of Mr. Thakur appearing for respondent No. 1 and the learned A.P.P., even the learned Counsels appearing for the respondents have also submitted that it is true that the appellant-accused is a Nigerian National and he is in jail from his arrest i.e. 9-7-1989 till date and as the appellant-accused is already in jail for about 10 years, appropriate order be passed on the point of sentence. In view of the contentions raised by the appellant-accused on the point of conviction as she has fairly conceded even on going through the evidence, we are of the view that the learned Special Judge has rightly accepted the case of the prosecution and further the finding recorded by the learned Special Judge that from the possession of appellant-accused 800 grams of heroin was recovered when the appellant-accused was occupying room No. 101 of Hotel Green Star on 9-7-1989 and accordingly the learned Special Judge was right in convicting the appellant-accused for the offence under section 21 of the N.D.P.S. Act and accordingly we confirm the order of conviction recorded against the accused by the learned Special Judge. 10. Considering the submission on the point of sentence and after giving anxious thought in the matter and the fact that the appellant-accused is a Nigerian National and from the date of his arrest i.e. from 9-7-1989 he is in jail and by now he has undergone sentence of 10 years. Considering these facts, we are inclined to accept the submission of Ms. Amrolia for her request of reducing the sentence of the appellant-accused. Even the learned Counsel appearing on behalf of the respondents has also left with us for passing appropriate order of sentence by reducing the same. According to Ms. Amrolia that while modifying the sentence, she requested that the sentence undergone by the appellant-accused is sufficient. The learned Special Judge has while considering the submission on the point of sentence had imposed sentence of rigorous imprisonment for 12 years and ordered to pay fine of Rs. 1,00,000/- and in default the accused to undergo rigorous imprisonment for one year. Amrolia that while modifying the sentence, she requested that the sentence undergone by the appellant-accused is sufficient. The learned Special Judge has while considering the submission on the point of sentence had imposed sentence of rigorous imprisonment for 12 years and ordered to pay fine of Rs. 1,00,000/- and in default the accused to undergo rigorous imprisonment for one year. As the appellant-accused has undergone sentence of 10 years, we are inclined to reduce the sentence of the appellant-accused mainly on the ground that the appellant-accused is a Nigerian National and as the appellant-accused is in jail since 9-7-1989 the ends of justice will meet the appellant (is ordered) to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- and in default of non-payment of fine the sentence imposed by the learned Special Judge for rigorous imprisonment for one year is modified and accordingly the appellant-accused to undergo in default clause rigorous imprisonment for six months. Accordingly, the appeal of the appellant-accused is partly allowed and we pass the following order. ORDER The appeal of the appellant-accused is partly allowed. The order of conviction recorded by the learned Special Judge, Greater Bombay, dated 28-4-1995, convicting the appellant-accused for the offence under section 21 of the Narcotic Drugs Psychotropic Substances Act, 1985 is confirmed. The order of sentence is modified and the appellant-accused to undergo rigorous imprisonment for 10 (ten) years and to pay a fine of Rs. 1,00,000/- in default to undergo rigorous imprisonment for 6 (six) months. The appellant is also entitled to set off as the appellant-accused was in jail since 9-7-1989. Rest of the order passed by the learned Special Judge is confirmed. We are told that the appellant-accused is undergoing sentence at Nasik Central Prison, Nasik. Office to issue writ to the jail authorities at Nasik. Appeal partly allowed. -----