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Judgment
Ajit Bharihoke, J.—This appeal is directed against the impugned order on sentence dated 7th May, 2007 consequent upon the conviction of the Appellant for offences punishable under Sections 471/419/420 of the Indian Penal Code (for short "IPC") as well as Section 3/9 of Official Secrets Act and Section 14 of the Foreigners Act in Sessions Case No. 104/2006 FIR No. 153/2004 P.S. Special Cell whereby the Appellant, for the offence u/s 14 of the Foreigners Act, has been sentenced to undergo rigorous imprisonment for a period of 5 years and also to pay a fine of Rs. 5,000/-, in default of payment of fine to undergo rigorous imprisonment for one year. For the offence u/s 419 IPC, the Appellant has been sentenced to undergo rigorous imprisonment for a period of 3 years and fine of Rs. 5,000/-, in default of payment of fine, to undergo rigorous imprisonment for a further period of 6 months and for the offence u/s 420 IPC, to undergo rigorous imprisonment for a period of 5 years and a fine of Rs. 5,000/-, in default of payment of fine, to undergo rigorous imprisonment for a further period of 1 year. The Appellant is further sentenced for the offence u/s 471 IPC, to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 5,000/-and in default of payment of fine, to undergo rigorous imprisonment for a further period of 1 year and for the offence u/s 3/9 of Official Secrets Act, to undergo rigorous imprisonment for a period of 7 years and a fine of Rs. 5,000/-, in default of payment of fine, to undergo rigorous imprisonment for a period of 1 year. It was ordered that all the sentences shall run concurrently.
At the outset, it may be noted that the Appellant was convicted for the aforesaid offences on the basis of plea of guilt which was found to be voluntary by the learned trial Judge.
Learned Ms. Purnima Sethi, Amicus Curiae for the Appellant have confined her challenge only to the order on sentence. She submitted that the Appellant is a foreign national who has undergone almost entire period of the sentence of imprisonment awarded to him. She further submitted that the Appellant, being a foreign national, is not in a position to pay the fine, therefore taking into account that the Appellant has undergone substantial punishment, his sentence of fine may be waived or the sentence in default of payment of fine be reduced from 4 1/2 years rigorous imprisonment cumulative to a reasonable period because the said sentence in default is too harsh.
Learned APP, on the other hand, has argued in support of the sentence awarded by the learned Additional Sessions Judge. She submitted that the Appellant is a foreign national and is guilty of an offence under Official Secrets Act and he was found in possession of classified documents relating to the defence installations, therefore he does not deserve any leniency.
I have considered the rival contentions. As per the nominal roll dated 2nd March, 2010 submitted by Deputy Superintendent, Central Jail-II, Tihar, New Delhi, the Appellant was awarded 7 years rigorous imprisonment besides the fine of total Rs. 25,000/-. Out of the said sentence, the Appellant as on 23rd February, 2010 had already undergone incarceration for a period of 5 years, 2 months and 27 days actual and he had earned remission of 8 months and 21 days and on 23rd February, 2010 unexpired portion of his sentence was 1 year and 12 days. Since 23rd February, 2010 exactly 1 year has elapsed. Therefore, it is apparent that the Appellant has undergone custody for a period of almost 7 years, less 12 days. He has not paid the fine imposed upon him for various offences which cumulatively amounts to Rs. 25,000/-and in default of said fine, he has been awarded rigorous imprisonment for a period of 4 1/2 years (cumulatively).
In my considered opinion, aforesaid sentence awarded to the Appellant in default of payment of fine for respective offences is too harsh. Accordingly, the order on sentence passed by learned Additional Sessions Judge is modified to the effect that in default of payment of fine of Rs. 5,000/-for offence u/s 14 of the Foreigners Act, the Appellant shall undergo rigorous imprisonment for a period of one month and in default of payment of fine of Rs. 5,000/-for offence u/s 419 IPC, the Appellant shall undergo rigorous imprisonment for a period of one month. Similarly, in default of payment of fine for the offences u/s 420 IPC, the Appellant shall undergo rigorous imprisonment for a period of one month and in default of payment of fine for offence u/s 471 IPC, the Appellant shall undergo rigorous imprisonment for a period of one month and for default of payment of fine of Rs. 5,000/-, the Appellant shall undergo rigorous imprisonment of one month.
In view of the above, the appeal is partially accepted with the above modifications.
Copy of this order be sent to the Superintendent Jail concerned for compliance.