TMI Blog1988 (8) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... d case although it is grave. The Court has to consider the totality of the sentences which the accused has to undergo if the sentences are to be consecutive. In arriving at an appropriate sentence, the court must consider, and sometimes reject, many factors. The court must 'recognise, learn to control and exclude' many diverse data. It is a balancing act and tortuous process to ensure reasoned sentence. In consecutive sentences, in particular, the Court cannot afford to be blind to imprisonment which the accused is already undergoing. Appeal allowed - Set aside the judgment of the High Court and restore that of the trial court. - 467 of 1988 - - - Dated:- 31-8-1988 - G.L. Oza and K. Jagannatha Shetty, JJ. [Judgment per: Jagannatha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollusion with several persons. On 6 January, 1983 he was again prosecuted along with 18 others under Section 135 of the Customs Act, 1962. The complaint in this case was filed before the Additional Chief Metropolitan Magistrate, Ahmedabad. It was registered as CC No. 129/1986. It was alleged in the complaint that the appellant and others had imported gold worth Rs. 12.5 crores and smuggled out of India silver worth Rs. 11.5 crores during December, 1981 to February, 1982. In this case also the appellant did not wait for the trial of the case. He pleaded guilty to the charge. The other 18 accused, however, did not follow him. They denied the charge and the case against them is said to be still pending for disposal. 5. On 6 January, 1987, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d against the sentence on the ground that the sentences should have been made concurrent. The State, on the other hand, demanded the maximum sentence again. The maximum sentence prescribed under Section 135 of the Customs Act is also 7 years. The State contended that in view of the enormity of the economic crime committed by the appellant, he should be given the maximum and consecutive. The High Court accepted the State appeal, enhanced the sentence from 4 years to 7 years and made it consecutive. Consequently, the High Court dismissed the appeal of the appellant. The result is that he has to serve in all 14 years imprisonment which he has challenged in this appeal. 8. Section 427 Cr. P.C. incorporates the principle of sentencing an offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged that the appellant was prosecuted under the two enactments in respect of seizure of 7,000 ton as of gold. On this basis, reference is also made to Section 428 Cr. P.C. claiming set off in regard to the period of imprisonment already undergone by the appellant. 12. The submission, in our opinion, appears to be misconceived. The material produced by the State unmistakably indicates that the two offences for which the appellant was prosecuted are quite distinct and different. The case under the Customs Act may, to some extent, overlap the case under the Gold (Control) Act, but it is evidently on different transactions. The complaint under the Gold (Control) Act relates to possession of 7,000 tolas of primary gold prohibited under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l filed by the State requires to be allowed. The fact that the accused had pleaded guilty is of no consequence. It is not the case of plea-bargaining because the accused had pleaded guilty and yet he was given numerous opportunities to reconsider his decision. If the accused even thereafter had pleaded guilty, the fact that he was awarded a seven years' Rigorous imprisonment sentence in the previous case would be no ground for the learned Metropolitan Magistrate to award less than the maximum sentence if the facts of the case warranted such a maximum sentence. The enormity of the crime called for nothing less than the maximum sentence." 16. We have carefully perused the entire material on record. It may be recalled that the appellant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the same accused is not irrelevant for consideration while giving the consecutive sentence in the second case although it is grave. The Court has to consider the totality of the sentences which the accused has to undergo if the sentences are to be consecutive. The totality principle has been accepted as correct principle for guidance. In Re. Edward Charles French [(1982) Cr. App. R.(S) p.1 (at 6)], Lord Lane, C.J., observed : "We would emphasize that in the end, whether the sentences are made consecutive or concurrent the sentencing judge should try to ensure that the totality of the sentences is correct in the light of all the circumstances of the case." 18. The trial Magistrate in this case has properly considered all aspects in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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