JUDGMENT : (Prayer: Criminal Appeal is filed under Section 374 (2) of the Criminal Procedure Code, praying to set aside the judgment dated 07.03.2018 made in C.C.No. 5 of 2013 in RR.No. 17 of 2012 in NCB.F.No. 48/1/12/2012-NCB/MDS on the file of the I Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai.) 1. This Criminal Appeal is filed praying to set aside the judgment dated 07.03.2018 made in C.C.No. 5 of 2013 in R.R.No. 17 of 2012 in NCB.F.No.48/1/12/2012-NCB/MDS on the file of the I Additional Special Court for Exclusive Trial of Cases under NDPS Act, Chennai. 2(a). Upon an information received from Mr.S.Satish Kumar, Assistant Manager (Security) M/s. Aramex India Private Limited, Plot No.1, Poomagal Street, Ekkattuthangal, Chennai - 600 032, over NCB Office Telephone on 17.07.2012, informing that he had reasonable suspicion about the contents of the consignment booked in three courier parcels, carriage Air Bills dated 17.07.2012 by one James, who was suspicion (1) Kenneth Aghjioba of West Africa (2) Simona De Jesus, Spain and (3) Frank Morris, Aubum, 2144 Sydney, N.S.W. Australia, the same was acted upon and upon the conduct of inspection in accordance with law, ultimately, it was found that the parcels contain substances, namely, carrying narcotic drugs totally weighing 1195 grams. Upon due completion of investigation, 200 grams of Methaqualone was recovered. After completion of investigation, a final report was filed before the I Additional Special Court for Exclusive Trial of Cases under the NDPS Act, which was taken on file in C.C.No. 5 of 2013. Upon considering the materials on record, the Trial Court framed the charges and upon questioning the accused under Section 313 of CrPC., he denied the same and stood trial. 2(b). Of the three accused, the case against A1 in C.C.No. 5 of 2013 was split up as per the order dated 28.11.2013 passed by the learned I Additional Sessions Judge and for A2 it was taken on file in C.C.No. 81 of 2013 and the same is still pending and A2 is absconding. As far as the appellant/A1 is concerned, he stood for trial. To bring home the charges against the first accused, in this case, P.W1 to P.W11 were examined and Ex.P1 to Ex.P54 were marked. The prosecution has also produced M.O.1 to 12. There was no evidence let in on behalf of the defence. 2(c). As far as the appellant/A1 is concerned, he stood for trial. To bring home the charges against the first accused, in this case, P.W1 to P.W11 were examined and Ex.P1 to Ex.P54 were marked. The prosecution has also produced M.O.1 to 12. There was no evidence let in on behalf of the defence. 2(c). After hearing the learned Special Public Prosecutor and the learned counsel for the accused, the Trial Court found the Appellant/A1 guilty and convicted him for the offence under Section 8(c) read with Section 21(c) of the NDPS Act, 1985 (as amended by Act 9 of 2001) (hereinafter referred to as the "Act") and for the offence under Section 8(c) read with Section 22(b) of the Act. He was imposed a punishment of 14 years rigorous imprisonment and to pay a fine of Rs.1,00,000/- for the offence under Section 8(c) read with Section 21(c) of the Act, in default of payment of fine, to undergo rigorous imprisonment for one year and sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rs.1,00,000/- for the offence under Section 8(c) read with Section 22(b) of the Act, in default of payment of fine to undergo rigorous imprisonment for one year. Sl. No. Conviction for the offences Under Sections Sentence Fine Amount 1. Under Section 8(c) read with Section 21(c) of NDPS Act. 14 years Rigorous Imprisonment To pay fine Rs.1,00,000/-, in default, to undergo Rigorous Imprisonment for one year. 2. Under Section 8(c) read with Section 22(b) of NDPS Act. 10 years Rigorous Imprisonment To pay fine Rs.1,00,000/-, in default, to undergo Rigorous Imprisonment for one year. The sentences imposed on the first accused by the Trial Court was ordered to run concurrently. 3. Heard Mr.K. Livingston, learned counsel appearing for the appellant/A1 and Mr.N.P. Kumar, learned Special Public Prosecutor appearing on behalf of the respondent [Narcotic Control Bureau (NCB)] and perused the materials available on record. 4. The learned counsel appearing for the appellant/A1, even though attempted to argue on merits, thereafter, considering the fact that the petitioner is in jail from 05.09.2012, confined his arguments only in respect of the question of sentence. The learned counsel for the appellant/A1 submitted that the Trial Court has insofar as the offence under Section 8(c) read with Section 21(c) of the Act, is concerned, given a punishment of 14 years. The learned counsel for the appellant/A1 submitted that the Trial Court has insofar as the offence under Section 8(c) read with Section 21(c) of the Act, is concerned, given a punishment of 14 years. In this case, though the offence punishable under Section 8(c) read with Section 21(c) is upto 21 years, the exercise of discretion is granted under Section 32-B of the Act, which reads as follows:- "32B. Factors to be taken into account for imposing higher than the minimum punishment.- Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act, the Court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine, namely, the use or threat of use of violence or arms by the offender, the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence, the fact that the minors are affected by the offence or the minors are used for the commission of an offence; and the fact that the offence is committed in an educational institution or social service facility or in their immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities; the fact that the offender belongs to organized international or any other criminal group which is involved in the commission of the offence; and the fact that the offender is involved in other illegal activities facilitated by commission of the offence." In this case, it is in the courier office which booked narcotic drug substance by courier it was sent by the accused, which is intercepted and he was prosecuted and he would pray that this Court may interfere in respect of the quantum of sentence. 5. The learned counsel for the appellant/A1 further submitted that the petitioner is a Nigerian National and is wrongly implicated and A1 is in prison without any help whatsoever and therefore, is not in a position to pay the fine amount. He further submitted that, in similar circumstances, considering the inability to pay the fine amount, this Court had interfered in the question of the default sentence. Therefore, he prayed that the default sentence may be appropriately reduced. 6. He further submitted that, in similar circumstances, considering the inability to pay the fine amount, this Court had interfered in the question of the default sentence. Therefore, he prayed that the default sentence may be appropriately reduced. 6. Per contra, Mr.N.P. Kumar, learned Special Public Prosecutor appearing for the respondent submitted that, in this case, even though there is no direct charge relating to the ingredients mentioned under Section 32B of the Act, it has been found that the school going children would be affected severely, and the Trial Court has rightly imposed the punishment more than the minimum punishment. As far as the fine amount is concerned, he submitted that only minimum fine is imposed and if he is unable to pay the fine amount, there is no other go for the first accused than to undergo the default sentence. 7. I have heard the rival submissions on either side and perused the materials on record. 8. On a perusal of the entire evidence available on record, it clearly shows, as contended by the learned counsel for the petitioner, that there is no positive evidence regarding any of the factors (a) to (f) as provided under Section 32-B of the Act. As a matter of fact, the consignment is booked for outside the country and therefore, it cannot be said that it would affect the school going children and, therefore, I am inclined to accept the submission of the learned counsel for the appellant/accused that discretion in the award of punishment is guided by the statute itself, as could be seen from Section 32-B of the Act. In this circumstances, the appellant/accused have to be imposed with punishment, as the statute prescribes a minimum punishment for the offence punishable under Section 8(c) read with Section 21(c) of the Act, which is ten years. Therefore, in the above circumstances, the sentence imposed on the appellant by the trial Court in respect of the offence under Sections 8(c) read with Section 21(c) of the NDPS Act, alone requires modification and, accordingly, I am inclined to modify the sentence from 14 years to 10 years. 9. The learned Counsel for the appellant/A1 has also relied upon the judgment of this Court in S.Edmand and Another v. The State, represented by the Intelligence Officer, N.C.B. South Zonal Unit, Chennai (NCB E.No. 48/1/08/2006-NCBMDS) (Crl.A.Nos. 9. The learned Counsel for the appellant/A1 has also relied upon the judgment of this Court in S.Edmand and Another v. The State, represented by the Intelligence Officer, N.C.B. South Zonal Unit, Chennai (NCB E.No. 48/1/08/2006-NCBMDS) (Crl.A.Nos. 161 and 281 of 2014), N. Kandeepan and Another v. The State, represented by the Intelligence Officer, N.C.B, South Zone, Chennai, (Crl.A.Nos. 528 of 2013 and 552 of 2012), T.Udayachandran @ Ramsh v. The State, represented by the Intelligence Officer, V. Vettichelvan v. Central represented by the Senior Intelligence Officer, Directorate of Revenue Intelligence, Rajapandi and Another v. The State, represented by the Inspector of Police, Chennnai (Crime No. 91/12), and also the judgment of the Apex Court in the case of Shahejadkhan Mahebubkhan Pathan v. State of Gujarat, reported in AIR 2013 SC (Criminal) 61 respectively. 10. As far as the question of default sentence for non-payment of fine is concerned, it is seen that from the judgment of this Court that this Court has held that the Trial Court is right in imposing Rs.1,00,000/- (Rupees One Lakh Only) as the same is minimum fine amount. However, when accused pleads inability to pay the fine and the default sentence alone is appropriately reduced by this Court by taking into consideration the facts and circumstances of the case. 11. Accordingly, I am inclined to modify the default sentence in respect of the two Counts of fine. In this case, I am of the view that the default sentence shall be reduced from one year for each counts to one month for each count and the default sentences shall run consecutively, after the appellant/A1 completes ten years of substantive sentence concurrently in respect of the offences under which he was convicted by the Trial Court. 12. In this case, I am of the view that the default sentence shall be reduced from one year for each counts to one month for each count and the default sentences shall run consecutively, after the appellant/A1 completes ten years of substantive sentence concurrently in respect of the offences under which he was convicted by the Trial Court. 12. Therefore, this Criminal Appeal is partly allowed in the following manner:- (i) In respect of the offence under Section 8(c) read with Section 21(c), the sentence of 14 years imposed by the Trial Court is modified as ten years with rigorous imprisonment and the fine amount of Rs.1,00,000/-(Rupees One Lakh Only) is maintained; (ii) In respect of the offence under Section 8(c) read with Section 22(b) is concerned the trial Court imposed the minimum sentence of ten years and a fine of Rs.1,00,000/- (Rupees One Lakh Only), which does not require any interference; and (iii) As far as the default sentence in respect of non-payment of fine for both the counts is concerned, it is modified from a period of one year rigorous imprisonment to one month rigorous imprisonment for each offence. The default sentences of one month rigorous imprisonment for each counts shall be undergone by the appellant successively after completion of the substantive sentence of ten years, which would run concurrently for both the offences and the total period of sentence shall be ten years and two months. 13. On completion of the above sentence, if the appellant/A1 is not required for any other case, the Superintendent Central Prison, Chennai, can release him and deal with him as per the provision of Foreigners Act, in accordance with law.