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TMI Blog2021 (12) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... he NDPS Act. Those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to a number of innocent young victims who are vulnerable. Such accused causes deleterious effects and deadly impact on the society. They are hazard to the society. Such organized activities of clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have a deadly impact on the society as a whole. Even while exercising discretion under Section 427 of Cr.PC to run subsequent sentence concurrently with the previous sentence, the discretion is to be exercised judiciously and depending upon the offence/offences committed. Therefore, considering the offences under the NDPS Act which are very serious in nature and against the society at large, no discretion shall be exercised in favour of such accused who is indulging into the offence under the NDPS Act. Appeal dismissed. - CRIMINAL APPEAL NO. 1457 OF 2021 - - - Dated:- 7-12-2021 - M. R. SHAH And B. V. NAGARATHNA , JJ. JUDGMENT M. R. Shah , J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant accused that as the appellant accused had already undergone 12 years sentence in a case arising out of FIR No.134/1999, he cannot be punished twice and that in a case arising out of FIR No.43/1999 he has already undergone sentence of 6 years and 2 months, a lenient view may be taken and the sentences imposed in both the cases/trials, one arising out of FIR No.134/1999 (Amritsar Case) and another arising out of FIR No.43/1999 (New Delhi Case) shall be held to run concurrently. By the impugned judgment and order the High Court has not accepted the above and has dismissed the appeal. Hence, the accused has preferred the present appeal. 4. Ms. Sangeeta Kumar, learned counsel appearing for the appellant, in her short written submissions, has stated that the appellant is a foreign national, resident of Lahore, Pakistan and has been behind bars for the last nearly 22 years as he was arrested on 15.06.1999 in respect of FIR No. 134 of 1999 by the Police Station, Customs, Punjab and he was charged for the offences under Sections 21 and 23 of NDPS Act, 1985, for import of 4kg heroin and was convicted by the order of the Additional Sessions Judge, Amritsar, dated 08.12.2000. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that exceptions are cases falling under proviso to Section 427(1) of Cr.PC; falling under Section 427(2) of Cr.PC or when the court directs sentences shall run consecutively. 5.2 It is submitted that even the power conferred on the court under Section 427 of Cr.PC to order concurrent sentence is discretionary, but the discretion ought to be exercised having regard to the nature of the offence committed and the facts situation in which the question arises. 5.3 It is submitted that in the present case, the sentencing court did not direct the sentences to run concurrently. It is submitted that in the present case appellant accused faced two separate trials for two separate offences and for two different transactions (not arising out of the same transaction) and therefore the submissions on behalf of the appellant that the sentences imposed in both the cases to run concurrently has no substance and cannot be granted. 5.4 In support of her above submissions, she has relied upon the following decisions of this court:Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs (Prevention), Ahmedabad Anr. (1988) 4 SCC 183; Ranjit Singh Vs. Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entences to run concurrently. In view of the above facts, the question posed for the present appeal is required to be considered. 8.2 While considering the issue in the present appeal Section 427 of Cr.PC is required to be referred to which reads as under: 427. Sentence on offender already sentenced for another offence. (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence: Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately. (2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se under Gold (Control) Act, 1968 involving a Pakistani national, the sentence in the first case was imprisonment for 7 years and fine of ₹ 10 lakhs awarded by the court of Chief Metropolitan Magistrate, Ahmedabad in CC No. 1674 of 1982. Upon appeal, the High Court confirmed the sentence but reduced the fine to ₹ 5 lakhs. The special leave petition filed by the appellant therein was dismissed by this Court and the conviction and sentence became final. When the appellant was under judicial custody in the aforesaid case, there was further investigation with regard to his smuggling activities. It revealed widespread racket of smuggling gold and silver in collusion with several persons. The appellant therein was again prosecuted along with 18 others under Section 135 of the Customs Act, 1962. The appellant therein was convicted and sentenced for 4 years rigorous imprisonment and fine of Rs. Two lakhs and default sentence in case of nonpayment of fine. Thereafter, the State as well as the appellant therein approached the High Court. The High Court accepted the State s appeal and it enhanced the sentence from 4 years to 7 years and made it consecutive. Consequently, the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. As rightly contended by Shri Garg, and not disputed by Shri Lalit, the earlier sentence of imprisonment for life being understood to mean as a sentence to serve the remainder of life in prison unless commuted or remitted by the appropriate authority and a person having only one life span, the sentence on a subsequent conviction of imprisonment for a term or imprisonment for life can only be superimposed to the earlier life sentence and certainly not added to it since extending the life span of the offender or for that matter anyone is beyond human might. It is this obvious situation which is stated in subsection (2) of Section 427 since the general rule enunciated in subsection (1) thereof is that without the court's direction the subsequent sentence will not run concurrently but consecutively. The only situation in which no direction of the court is needed to make the subsequent sentence run concurrently with the previous sentence is provided for in subsection (2) which has been enacted to avoid any possible controversy based on subsection (1) if there be no express direction of the court to that effect. Subsection (2) is in the nature of an exception to the general rule en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncurrency will have to be exercised on sound principles and not on whims. Whether or not a direction ought to be issued in a given case would depend upon the nature of the offence or offences committed. It is further observed and held in the said decision that it is well settled that where there are different transactions, different crime numbers and the cases have been decided by the different judgments, concurrent sentences cannot be awarded under Section 427 of Cr.PC. It is further observed that however, the general rule that there cannot be concurrency of sentences if conviction relates to two different transactions, can be changed by an order of the court. 8.3.5 In the case of Sharad Hiru Kolambe (Supra), it is observed and held that unless the court directs that the punishment for such two or more offences at same trial should run concurrently, the normal principle is that the punishments would commence one after the expiration of the other. Similarly, in a case where a person already undergoing a sentence is later imposed sentence in respect of offence tried at subsequent trial, the general rule is that the subsequent sentence imposed run consecutively unless there is a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m sentence comes to 15 years. Ultimately, sentence ordered by this Court was rigorous imprisonment of 16 years. The Court also had in mind that the appellant therein was 65 years of age and suffering from various ailments. It was also ordered that the sentence would run concurrently and so far as with regard to both the cases, fine of ₹ 1 lakh which was imposed by the Trial Court in Gujarat was concerned, the same would remain. As far as fine of ₹ 3 lakhs in Bombay case was concerned, the same was reduced from ₹ 3 lakhs to ₹ 2 lakhs. Accordingly, the appeals were disposed. 9. Thus from the aforesaid decisions of this Court, the principles of law that emerge are as under: (i) if a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such subsequent term of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced; (ii) ordinarily the subsequent sentence would commence at the expiration of the first term of imprisonment unless the court directs the subsequent sentence to run concurrently with the previous sentence; (iii) the general rule i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber of innocent young victims who are vulnerable. Such accused causes deleterious effects and deadly impact on the society. They are hazard to the society. Such organized activities of clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have a deadly impact on the society as a whole. Therefore, while awarding the sentence or punishment in case of NDPS Act, the interest of the society as a whole is required to be taken into consideration. Therefore, even while applying discretion under Section 427 of Cr.PC, the discretion shall not be in favour of the accused who is found to be indulging in illegal trafficking in the narcotic drugs and psychotropic substances. As observed hereinabove, even while exercising discretion under Section 427 of Cr.PC to run subsequent sentence concurrently with the previous sentence, the discretion is to be exercised judiciously and depending upon the offence/offences committed. Therefore, considering the offences under the NDPS Act which are very serious in nature and against the society at large, no discretion shall be exercised in favour of such accused who is indulgi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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