Anil Kumar v. State of Punjab

Judgment

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 77 of2017. From the Order dated 12.07.2016 by the High Court of Punjab and Haryana at Ch~digarh in CRM No. 19868 of20 16 in CRR No. 308 of2016. Aman Preet Singh Rahi. Raghav Cbadl1, A. Venayngam Balan, Advs. for the AppeiJant. Jayant K. Sud, A jay P. Tushir, Umang Singh, Jagjit Singh Chhabra, Advs. for t11e Respondent. The Judgment of the Court was delivered by R. BANUMATIU, J. I. This appeal arises out of the order dated 12.07.2016 passed by the High Court of Punjab and Haryana at Chandigarh in CRM No.19868 of20 16 in CRR No.308 of20 16, whereby the application filed by the appellant seeking dire<:tion to treat sentence imposed on him in Complaint No.638 dated 24.08.2009 and that in FIR No.37 dated 19.04.2009 to run concurrently, was declined. 2. Brief facts are as follows.

By judgment dated 23.07.2014 in FIR No.37 dated 19.04.2009 PS Longowal. the appellant was convicted under Section 22 ofNarcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to undergo rigorous imprisonment for ten years and pay fine of rupee one Jakh and in default to undergo imprisonment for two years. By the judgment dated 25.08.2014, in the Complaint No.638 dated 24.08.2009, the appellant wns convicted under Section 27(b)(ii)and Section 28 of the Drugs and Cosmetics Act, 1940 and was sentenced to undergo rigorous imprisonment for one year and pay fine of Rs.S,OOO/-(rupces five thousand). The appellant preferred appeal against the said conviction and the same was dismissed by the Appellate Court. The revision preferred by the appeJ I ant before the High Court was also dismissed by the judgment dated 24.05.2016 in CRR No.JOS of2016.

The appellant filed miscellaneous application, CRM No.l9868 of 2016 seeking clarification of the order dated 24.05.2016 . a and further direction to treat the sentences of the appellant as concurrent in terms of Section 427 ( 1) and (2) Cr.P.C. TI1e said application was dismissed by the High Court by the impugned order. 3. We have heard the learned counsel appearing for the parties. [2o 1111 s.c.R: . . '· 4. The pm\ter conferred on the Court under Section 427 Cr.P.C. . . to ord~r concurrent sentence is discretionary. Section 427 Cr.P.C. reads as under:- "S.427. Sentence on offender already sentenced for another offence.-( t)

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 shalt commerce at the expiration of the imprisonment to which he lws been · I previously' sente.nced, unless the Court directs that the subsequent sentenct 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 inaking of such order, the latter sentenc;e shall commence immediately. (~)When :1 person nlrcHdy unrlergoing a sentence of imprisonment for li fc is sentenced em a su bsequcn t conviction to imprisonment for a term ·or imprisonment for life. the subscqurnt sentence shaU run concurrently wilh such previous sentence.:' ' · . 5.

In knns of sul,-scction ( l) of Section 42 7, if a person already undergoing a s~ntcnce of imprisonment is sentenced on a subse~ucnt conviction to imprisonm~nt, S11ch subseq11cnt tcm1 of imprisonment would normally conuncnc~c at t]u:! cxp iration of the i mprbonmcnt to which he was previously scntc;:ced. Only in appropriate cnscs, considering the facts of the case, the court can •mtke the sentence run concurrently with nn cnrlicr sentence impose 1 Tl1t! investiture of such discretion, ~re~u_rpos~s t.hat such discretion be exercised by the Court on sound J~dlcwl pnnc1pl\!s nnJ not in u mc~hanicai mann"'·r. \Vh~ther or nJt the diSCretion is tu OC CXCr'Ciscd in directing SCJllcm:~s tO fUll COnC'UiTLJltly \\:ould depend upon the nature of the offcncclt'n~n~es and th~ fads and Clrcumsranccs of cnch case. : 6· ln V.K. Bu11.mll'. Stflle of /Iarymw ci."HI A nr. (20 1.3) 7 sCC 211, It was he1u by this Court as under;

"~tis m.an ifest. from Section 427 ( 1) that the Court hns the power ond the discretion to tssuc n direction but in the vt:ry nature of the power so conferred upon the Court the discretionary power shall have to be I ' I I Sl.!PREMF COURT REPORTS [201711 S CR. 4. The power conferred on the Court under s~ction 427 Cr.P.C. to order com·urrcut sentence is disactionllry. Section 427 Cr.P.C. reads as under·- ''S.427. Sentence on offender already sentenced for another offence.-( I) When a person already 1mdergning a sentence of imprisonment is sen1cnccd on a subsequent conviction to imprisonment or imprisonment for life, such Imprisonment or imprisonment for life shall COilllllCI'CC at !he expiration of the imprisonment to whidt he has been previously sentenced: unless the Cuur1 Jirccts that !he subsct1ucnt 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 com milled prior to the inaking of such order, the latter sentence shall ~ommence immediately. (:') Whcu ~person nlrc~dy undergoing a sl.!ntcnce of imprisonment for I it;: is sen1e-nced on a subseq!lent conv id ion tn imprisonment for a term or i:npri-;onment for life. the subsequent sentence shaH run concurrently with <;udt previ~1us sentence.:· 5. In h'rms ~)r sub-~c'-'tiou (I) of Sed ion 427, if a person already undergoing ;: •:;:nt\.'nce of imprisonmellf is sentenced on a subsequent convictkm h.l iili[His~mmcnt, such subsequent term-of imprisonment would normally commence .1! (he e>.pir~ttiou of the imprisonmenl to which he was previously seut~~=·-~ed.

Only in appropriate cnses, considering the facts of th1.· case, th~ \:•mrt can •nakc the scnt~ncc run concurrently with an c:-~rli ... ~r scn~cncc impm;!: I. The investiture of such discretion, presupposes th~H sud1 Jbcrctit'll be exercised by the Court on sound judicial principles Md not in a lll<'chanical manner. Whether or not the discretion is to l>e exercised in direct iug 5cntcnccs to nm conl:u:; '.'ni!y would depend upon the nature of the dlcncc/offcnccs ;md ih·~ t"nc~:, a;ld circumstances of c;~ch o.:a-;~. 6. ln V.K . .Bttmu[J•. S!ttle of llt~rymm !INI Am; (20 iJ) i SCC 211. it was heid by this Cou11 as under: ··It is maoifcst from Section 427 ( l) that th<.· Court hns the power and the di~(;retion to is~me a directil1tl but in th~ \'t)l')' nature of the power so <.~ontcrrcd upon the Court tlw dl'icrclionary power shall have to be ANIL KlJMAR v. STATE OF PUN.IAA [R. BANUMATHI . .1.1 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 rr.atter of exercise of such discretion by the courts. There is no cut and dried formula for the Court to follow in the rna tier of issue or r~fusal 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.·~ This Court then went on to club various crimes in respect of which sentences were imposed upon the appellant therein in three groups. 7. After referring lo V.K.. Bausal's case, in Benson a•. Stute of Kerala (20 16) I 0 SCC 307: 2016 (9) SCALE 670, this Court directed .the substantive sentences imposed on the appellant Benson to run concurrently. The appellant therein was convicted for the offences punishable under Section 3 79 and Section 414 read with Section 34 IPC in at least eleven cases.

By a separate judgment, the appellant was convicted and sentenced in each of the afores~id cases and tot3llength of sentences in aggregate was around nineteen years. 8. In the present case, the appellant was earlier convicted under Section 22 NDPS Act and subsequently convicted under Sect ion 2 7(b )( ii) and Section 28 of the Drugs and Cosmetics Act, 1940. Considering the nature of the offences for which the appellant was convicted and the facts and circumstances of the case, we deem it appropriate to direct that the sentences imposed on the appellant in FlR No.3 7 and Complaint No.638 shall run concurrently. However, the fine amount and the default sentence or sentences are maintained. Jfth~: fine amount is not paid, the default sentence will run consecutively and not concurrently. 9. The substantive sentences imposed on the appellant are ordered to run concurrently and the appeal is thus allowed. Devika Uujral Arpcal <lllowed.