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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 ..... ed the trial in connection with FIR No.134/1999 for the offence under Section 23 and Section 21 of the NDPS Act, PS Customs, Amritsar, Punjab for recovery of 4 kg of heroin. He was sentenced to undergo 12 years RI by the Amritsar Court. One another FIR was also filed against the appellant herein - original accused being FIR No.43/1999 at New Delhi for recovery of 750 grams of heroin from Delhi. In the second case also by judgment and order dated 30.01.2002, he was held guilty for the offence under Section 29 read with Section 21(c) of the NDPS Act. The learned Trial Court at Delhi imposed the sentence of 10 years RI (minimum sentence), however, in view of the provisions of Section 31 (ii) of the NDPS Act, which provides for an enhanced punishment for offences after previous conviction, and considering the fact that earlier appellant was convicted for the offence under the NDPS Act in a case arising out of the FIR No.134/1999, the learned Trial Court awarded minimum sentence of 15 years RI. No specific order was passed by the learned Trial Court at Delhi in the trial arising out of FIR No.43/1999 (subsequent trial) that the sentence imposed of 15 years RI would run concurrently or c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the appellant - accused has already completed 12 years RI in FIR No.134/1999 and if the sentences imposed, in both the cases - arising out of FIR No.134/1999 registered at Amritsar and arising out of FIR No.43/1999 registered at New Delhi, are not held to run concurrently and the appellant - accused is to undergo sentences consecutively, in that case the appellant is required to undergo in all 27 years of imprisonment. It is submitted that therefore the sentences imposed in both the cases are to be held to run concurrently. 4.3 It is submitted that as such in the case arising out of FIR No.43/1999, the Delhi Court while imposing the sentence of 15 years RI has not passed any order whether the sentences in both the cases to run concurrently or not. It is submitted that therefore the appellant should be given benefit of Section 427 of Cr.PC. 5. The present appeal is vehemently opposed by Ms. Akaanksha Kaul, learned counsel appearing on behalf of the State - respondent. Heavy reliance is placed on Section 427 of Cr.PC. It is submitted that in the present case the accused faced two separate trials for separate offences and not arising out of the same transaction and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o any leniency as prayed. 6. Making the above submissions and relying upon the decisions of this court, it is prayed to dismiss the present appeal. 7. We have heard the learned counsel appearing on behalf of the respective parties at length. 8. The short question which is posed for the consideration of this Court is, whether, the sentences imposed against the appellant - accused by two different courts in two different trials but against the same accused/person should run concurrently as submitted on behalf of the appellant - accused or consecutively. 8.1 At the outset, it is required to be noted that in the present case, the appellant - accused has been convicted by two different courts in two different trials for the offences with respect to the different transactions. In one case, he has been sentenced to undergo 12 years RI for the offence under Section 23 and Section 21 of the NDPS Act by Amritsar Court and in another case arising out of FIR No.43/1999 he has been sentenced to undergo 15 years RI for the offence under Section 29 read with Section 21(c) of the NDPS Act by Delhi Court. In one case he has been convicted for having in possession of 4 kg of heroin and in anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subsequent sentence shall run concurrently with such previous sentence. Therefore, in aforesaid two cases only the subsequent sentence shall run concurrently with previous sentence. Otherwise the subsequent sentence shall run consecutively and the imprisonment in subsequent sentence shall commence at the expiration of the imprisonment to which he has been previously sentenced. 8.3 At this stage, few decisions of this court on whether the subsequent sentence should run concurrently or consecutively are required to be referred to. 8.3.1 In the case of Mohd. Akhtar Hussain (Supra), it is observed and held that if the transaction relating to offences is not the same or the facts constituting the two offences are quite different in that case the subsequent sentence should run consecutively. In the case of Mohd. Akhtar Hussain, this Court observed that the broad expanse of discretion left by legislation to sentencing Courts should not be narrowed only to the seriousness of the offence. No single consideration can definitively determine the proper sentence. In arriving at an appropriate sentence, the court must consider, and sometimes reject, many factors. The court must 'recognise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent conviction is made. Subsection (1) says that in such a situation, the date of expiry of the first sentence which the offender is undergoing being known, 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. Obviously, in cases covered by subsection (1) where the sentence is for a fixed term, the subsequent sentence can be consecutive unless directed to run concurrently. Subsection (2), on the other hand, provides for an offender "already undergoing sentence of imprisonment for life" who is sentenced on a subsequent conviction to imprisonment for a term or for life. It is well settled since the decision of this Court in Gopal Vinayak Godse [Ranjit Singh v. U.T. of Chandigarh, (1984) 1 SCC 31 following Mithu v. State of Punjab, (1983) 2 SCC 277 and reiterated in Maru Ram [(1981) 1 SCC 107 that imprisonment for life is a sentence for the remainder of the life of the offender unless the remaining sentence is commuted or remitted by the appropriate authority. This being so at the stage of sentencing by the court on a subsequent conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 427(1) that the Court has the power and the discretion to issue a direction but in the very nature of the power so conferred upon the Court the discretionary power shall have to be exercised along the judicial lines and not in a mechanical, wooden or pedantic manner. It is difficult to lay down any straitjacket approach in the matter of exercise of such discretion by the courts. There is no cut and dried formula for the Court to follow in the matter of issue or refusal of a direction within the contemplation of Section 427(1). Whether or not a direction ought to be issued in a given case would depend upon the nature of the offence or offences committed, and the fact situation in which the question of concurrent running of the sentences arises." 8.3.4 In the case of Neera Yadav (Supra) while interpreting/considering Section 427 of Cr.PC it is observed and held that Section 427 of Cr.PC deals with sentence passed on an offender who is already sentenced for another offence and the power conferred on the Court under Section 427 to order concurrent sentence is discretionary. It is further observed that the policy of the legislature is that normally the sentencing should be done con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in case the fine was not paid. Appellant therein preferred an appeal challenging the aforesaid conviction and sentence before the High Court which dismissed his appeal. In fact, the appeal by the State for enhancement of sentence was dismissed. In the second case, the appellant therein was tried by the Special Judge for NDPS, Court of Sessions, Greater Bombay in Special Case No. 60 of 2002, culminating in the conviction and sentence of appellant therein under Section 8(c), 20(b)(ii) read with Section 31A of the NDPS Act and was sentenced to death. Death reference had been sent for confirmation before the High Court. The appellant therein had also filed an appeal against the aforesaid conviction and sentence in the High Court of Bombay. The High Court rejected the Confirmation Case no. 2 of 2008, filed by the State by not affirming the death sentence and dismissed the appeal of the appellant and the death sentence was converted into thirty years rigorous imprisonment and a fine of Rs. 3 lakhs. The matter pertaining to the conversion of the death sentence was considered before this Court and on considering Section 31 of the NDPS Act on the facts of the said case, it was held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outright. In the present case the appellant has been convicted with respect to two different transactions, there are different crime numbers and the cases have been decided by the different judgments. Therefore, the appellant is not entitled to any benefit of concurrent sentence under Section 427 of Cr.PC. As observed hereinabove, there is no specific order or direction issued by the court while imposing the subsequent sentence that the subsequent sentence to run concurrently with the previous sentence. 11. Even otherwise as observed hereinabove under Section 427 (1) of Cr.PC, the Court has the power and discretion to issue a direction that the subsequent sentence to run concurrently with the previous sentence in that case also, the discretion has to be exercised judiciously depending upon the nature of offence or the offences committed. In the present case the appellant - accused has been convicted for the offences under the NDPS Act. He has been convicted in one case for recovery of 4 kg heroin and sentenced to undergo 12 years RI and in another case there is a recovery of 750 grams of heroin and considering the Section 31 (ii) of the NDPS Act, he has been sentenced to undergo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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