MOHD ZAHID versus STATE THROUGH NCB on 7 December 2021

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[2021] 9 S.C.R. 372

SUPREME COURT REPORTS

[2021] 9 S.C.R.

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MOHD ZAHID

v.

STATE THROUGH NCB

(Criminal Appeal No. 1457 of 2021)

BDECEMBER 07, 2021

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Code of Criminal Procedure, 1973 – s.427 – Narcotics Drugsand Psychotropic Substances Act, 1985 – ss. 23, 29 and s.21 –Appellant-accused was held guilty by the PS Customs, AmritsarCu/s.23 and s.21 of the NDPS Act for recovery of 4 kg of heroin andsentenced to undergo 12 years rigorous imprisonment (RI) –Thereafter, he was again held guilty for the offence u/s.29 r/w. s.21(c)of the NDPS Act after recovery of 750 grams of heroin from Delhiand was sentenced for 10 years RI by the Trial Court at Delhi,Dhowever, in view of the provisions of s.31 (ii) of the NDPS Act,which provides for an enhanced punishment for offences afterprevious conviction, and considering the fact that earlier appellantwas convicted for the offence under the NDPS Act by the AmritsarCourt, the Trial Court at Delhi awarded minimum sentence of 15years RI – No specific order was passed by the Trial Court at DelhiEthat the sentence imposed of 15 years RI would run concurrently orconsecutively – Plea to direct the subsequent sentence to runconcurrently with the previous sentence rejected by the High Court– On appeal, held: In the instant case, the appellant was convictedwith respect to two different transactions, there are different crimeFnumbers and the cases have been decided by the different judgments– Therefore, the appellant is not entitled to any benefit of concurrentsentence u/s. 427 of Cr.P.C. – There is no specific order or directionissued by the court while imposing the subsequent sentence that thesubsequent sentence to run concurrently with the previous sentence– As far as discretiory power u/s. 427 of Cr.P.C. is concerned, theGdiscretion shall not be in favour of the accused who is found to beindulging in illegal trafficking in the narcotic drugs andpsychotropic substances – Even while exercising discretion u/s. 427of Cr.PC to run subsequent sentence concurrently with the previoussentence, the discretion is to be exercised judiciously and dependingH

upon the offence/offences committed – Thus, plea to direct thesubsequent sentence to run concurrently with the previous sentenceis rejected.

Dismissing the appeal, the Court

HELD: 1. From various decisions of the Supreme Court,the principles of law that emerge are as under:-

(i) if a person already undergoing a sentence of imprisonmentis sentenced on a subsequent conviction to imprisonment, suchsubsequent term of imprisonment would normally commence atthe expiration of the imprisonment to which he was previouslysentenced;

(ii) ordinarily the subsequent sentence would commenceat the expiration of the first term of imprisonment unless thecourt directs the subsequent sentence to run concurrently withthe previous sentence;

(iii) the general rule is that where there are differenttransactions, different crime numbers and cases have beendecided by the different judgments, concurrent sentence cannotbe awarded under Section 427 of Cr.PC;

(iv) under Section 427 (1) of Cr.PC the court has the powerand discretion to issue a direction that all the subsequentsentences run concurrently with the previous sentence, howeverdiscretion has to be exercised judiciously depending upon thenature of the offence or the offences committed and the facts insituation. However, there must be a specific direction or orderby the court that the subsequent sentence to run concurrentlywith the previous sentence. [Para 9][386-D-H]

2. Applying the law laid down by this Court and theprinciples of law enumerated hereinabove to the facts of the caseon hand, the submissions on behalf of the appellant – accusedthat his subsequent sentence to run concurrently with the previoussentence is to be rejected outright. In the present case theappellant has been convicted with respect to two differenttransactions, there are different crime numbers and the cases A

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Ahave been decided by the different judgments. Therefore, theappellant is not entitled to any benefit of concurrent sentenceunder Section 427 of Cr.PC. As there is no specific order ordirection issued by the court while imposing the subsequentsentence that the subsequent sentence to run concurrently withthe previous sentence. [Para 10][387-A-C]B

3. Even otherwise as observed hereinabove under Section427 (1) of Cr.PC, the Court has the power and discretion to issuea direction that the subsequent sentence to run concurrently withthe previous sentence in that case also, the discretion has to beexercised judiciously depending upon the nature of offence orCthe offences committed. In the present case the appellant –accused has been convicted for the offences under the NDPSAct. He has been convicted in one case for recovery of 4 kgheroin and sentenced to undergo 12 years RI and in another casethere is a recovery of 750 grams of heroin and considering theDSection 31 (ii) of the NDPS Act, he has been sentenced to undergo15 years RI. No leniency should be shown to an accused who isfound to be guilty for the offence under the NDPS Act. Thosepersons who are dealing in narcotic drugs are instruments incausing death or in inflicting death blow to a number of innocentyoung victims who are vulnerable. Such accused causesEdeleterious effects and deadly impact on the society. They arehazard to the society. Such organized activities of clandestinesmuggling of narcotic drugs and psychotropic substances intothis country and illegal trafficking in such drugs and substanceshave a deadly impact on the society as a whole. Therefore, whileFawarding the sentence or punishment in case of NDPS Act, theinterest of the society as a whole is required to be taken intoconsideration. Therefore, even while applying discretion underSection 427 of Cr.PC, the discretion shall not be in favour of theaccused who is found to be indulging in illegal trafficking in thenarcotic drugs and psychotropic substances. As observedGhereinabove, even while exercising discretion under Section 427of Cr.PC to run subsequent sentence concurrently with theprevious sentence, the discretion is to be exercised judiciouslyand depending upon the offence/offences committed. Therefore, H

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considering the offences under the NDPS Act which are veryserious in nature and against the society at large, no discretionshall be exercised in favour of such accused who is indulging intothe offence under the NDPS Act. [Para 11][387-C-H; 388-A-B]

4. In view of the above and for the reasons stated above,the submissions on behalf of the appellant – accused to directthe subsequent sentence by the Trial Court at Delhi in case arisingout of FIR No.43/1999 to run concurrently with the previoussentence by the PS Customs, Amritsar arising out of FIR No.134/1999 is hereby rejected. [Para 12][388-B-C]

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Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti Vs.Assistant Collector of Customs (Prevention), Ahmedabad& Anr. (1988) 4 SCC 183 : [1988] 2 Suppl. SCR 747;Ranjit Singh Vs. Union Territory of Chandigarh & Anr.(1991) 4 SCC 304 : [1991] 3 SCR 742; V. K. BansalVs. State of Haryana & Anr. (2013) 7 SCC 211 : [2013]7 SCR 617 – relied on.

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Neera Yadav Vs. Central Bureau of Investigation (2017)8 SCC 757 : [2017] 8 SCR 498; Vicky @ Vikas Vs.State (NCT of Delhi) (2020) 11 SCC 540; Gurdev SinghVs. State of Punjab (2021) 6 SCC 558; Sharad HiruKolambe Vs. State of Maharashtra & Ors. (2018) 18SCC 718 : [2018] 11 SCR 720; Rajpal Vs. Om Prakash& Anr. (2019) 17 SCC 809; Gulam Mohammad MalikVs. State of Gujrat and Anr. (2018) 14 SCC 473 –referred to.

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[2021] 9 S.C.R.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealBNo.1457 of 2021.

From the Judgment and Order dated 31.03.2017 of the High Courtof Delhi at New Delhi in Criminal Appeal NO.879 of 2002.

Ms. Sangeeta Kumar, Ms. Vidushi Garg, Ms. Vithika Garg,Ratneshwar Das, Advs. for the Appellant.C

Ms. Akaanksha Kaul, Rajan Kr. Chourasia, Uday Prakash Yadav,Sandeep Mahapatra, Arvind Kumar Sharma, Advs. for the Respondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.D

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 31.03.2017 passed by the High Court of Delhi at NewDelhi in Criminal Appeal No. 879 of 2002, by which the High Court hasdismissed the said appeal preferred by the appellant herein - originalaccused and has confirmed the judgment and order passed by the learnedETrial Court, convicting the appellant for the offence under Section 29read with Section 21(c) of the Narcotics Drugs and PsychotropicSubstances Act, 1985 (hereinafter referred to as the NDPS Act) andsentencing him to undergo rigorous imprisonment (RI) for a period of 15years with a fine of Rs.1,50,000/- for the aforesaid offence in view ofthe provisions of Section 31(ii) of the NDPS Act, the original accusedFhas preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:- 2.1 That the appellant herein – original accused faced the trial inconnection with FIR No.134/1999 for the offence under Section 23 andGSection 21 of the NDPS Act, PS Customs, Amritsar, Punjab for recoveryof 4 kg of heroin. He was sentenced to undergo 12 years RI by theAmritsar Court. One another FIR was also filed against the appellantherein – original accused being FIR No.43/1999 at New Delhi forrecovery of 750 grams of heroin from Delhi. In the second case also byjudgment and order dated 30.01.2002, he was held guilty for the offenceH

under Section 29 read with Section 21(c) of the NDPS Act. The learnedTrial Court at Delhi imposed the sentence of 10 years RI (minimumsentence), however, in view of the provisions of Section 31 (ii) of theNDPS Act, which provides for an enhanced punishment for offencesafter previous conviction, and considering the fact that earlier appellantwas convicted for the offence under the NDPS Act in a case arising outof the FIR No.134/1999, the learned Trial Court awarded minimumsentence of 15 years RI. No specific order was passed by the learnedTrial Court at Delhi in the trial arising out of FIR No.43/1999 (subsequenttrial) that the sentence imposed of 15 years RI would run concurrentlyor consecutively.

3. Feeling aggrieved and dissatisfied with the judgment and orderof conviction passed by the learned Trial Court at Delhi in a case arisingout of FIR No.43/1999 (second/subsequent case), the appellant – originalaccused preferred the appeal before the High Court. Before the HighCourt, it was mainly submitted on behalf of the appellant – accused thatas the appellant – accused had already undergone 12 years sentence ina case arising out of FIR No.134/1999, he cannot be punished twice andthat in a case arising out of FIR No.43/1999 he has already undergonesentence of 6 years and 2 months, a lenient view may be taken and thesentences 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 (NewDelhi Case) shall be held to run concurrently. By the impugned judgmentand order the High Court has not accepted the above and has dismissedthe appeal. Hence, the accused has preferred the present appeal.

4. Ms. Sangeeta Kumar, learned counsel appearing for theappellant, in her short written submissions, has stated that the appellantis a foreign national, resident of Lahore, Pakistan and has been behindbars for the last nearly 22 years as he was arrested on 15.06.1999 inrespect of FIR No. 134 of 1999 by the Police Station, Customs, Punjaband he was charged for the offences under Sections 21 and 23 of NDPSAct, 1985, for import of 4kg heroin and was convicted by the order ofthe Additional Sessions Judge, Amritsar, dated 08.12.2000.

Without prejudice to the aforesaid submissions, learned counselfor the appellant submitted that the appellant was under trial for theperiod from 17.09.1999 to 14.02.2002 and for the second offence thesaid period has not been taken into consideration. It was submitted thatif the sentences are to run consecutively and if the aforesaid period is A

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Aalso taken into consideration, then the number of years that the appellanthas to be behind bars, would have to be reduced.

4.1 Learned counsel for the appellant submitted that the appellantwas 30 years of age when he was convicted and presently, he is 52years old. His conduct in jail is good and there is no adverse remarkBmade against him by the Jail Superintendent. Hence, the two sentenceswhich the appellant is now undergoing, may be held to run concurrentlyunder Section 427 Cr.P.C.

4.2 It is submitted that the appellant – accused has alreadycompleted 12 years RI in FIR No.134/1999 and if the sentences imposed,Cin both the cases – arising out of FIR No.134/1999 registered at Amritsarand arising out of FIR No.43/1999 registered at New Delhi, are not heldto run concurrently and the appellant – accused is to undergo sentencesconsecutively, in that case the appellant is required to undergo in all 27years of imprisonment. It is submitted that therefore the sentencesimposed in both the cases are to be held to run concurrently.D

4.3 It is submitted that as such in the case arising out of FIRNo.43/1999, the Delhi Court while imposing the sentence of 15 years RIhas not passed any order whether the sentences in both the cases to runconcurrently or not. It is submitted that therefore the appellant should begiven benefit of Section 427 of Cr.PC.

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5. The present appeal is vehemently opposed by Ms. AkaankshaKaul, learned counsel appearing on behalf of the State – respondent.Heavy reliance is placed on Section 427 of Cr.PC. It is submitted that inthe present case the accused faced two separate trials for separateoffences and not arising out of the same transaction and therefore theFsentences imposed in both the cases are to run consecutive only.

5.1 It is submitted that general rule is that sentences imposed intwo separate trials in separate offences will run consecutively wherethere are two different transactions; different crime numbers and caseshave been decided by different judgments. It is submitted that exceptionsGare cases falling under proviso to Section 427(1) of Cr.PC; falling underSection 427(2) of Cr.PC or when the court directs sentences shall runconsecutively.

5.2 It is submitted that even the power conferred on the courtunder Section 427 of Cr.PC to order concurrent sentence is discretionary, H

but the discretion ought to be exercised having regard to the nature ofthe offence committed and the facts situation in which the question arises.

5.3 It is submitted that in the present case, the sentencing courtdid not direct the sentences to run concurrently. It is submitted that inthe present case appellant – accused faced two separate trials for twoseparate offences and for two different transactions (not arising out ofthe same transaction) and therefore the submissions on behalf of theappellant that the sentences imposed in both the cases to run concurrentlyhas no substance and cannot be granted.

5.4 In support of her above submissions, she has relied upon thefollowing decisions of this court:- Mohd. Akhtar Hussain aliasIbrahim Ahmed Bhatti vs. Assistant Collector of Customs(Prevention), Ahmedabad & Anr. (1988) 4 SCC 183; Ranjit Singhvs. Union Territory of Chandigarh & Anr. (1991) 4 SCC 304; V.K.Bansal vs. State of Haryana & Anr. (2013) 7 SCC 211; Neera Yadavvs. Central Bureau of Investigation (2017) 8 SCC 757; Vicky @Vikas vs. State (NCT of Delhi) (2020) 11 SCC 540; Gurdev Singhvs. State of Punjab (2021) 6 SCC 558; Sharad Hiru Kolambe vs.State of Maharashtra & Ors.(2018) 18 SCC 718 and Rajpal vs. OmPrakash & Anr. (2019) 17 SCC 809.

5.5 It is further submitted that in the present case, the appellant –accused as such is a habitual offender. In connection with FIR No.134/1999, he was convicted for the offence under Section 23 and Section 21of the NDPS Act for having in possession/recovery of 4 kg of heroinand in another case arising out of FIR No.43/1999, he has been convictedfor the recovery of 750 grams of heroin. It is submitted that thereforethe appellant – accused is not entitled to any leniency as prayed.

6. Making the above submissions and relying upon the decisionsof this court, it is prayed to dismiss the present appeal.

7. We have heard the learned counsel appearing on behalf of therespective parties at length.

8. The short question which is posed for the consideration of thisCourt is, whether, the sentences imposed against the appellant – accusedby 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.

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A8.1 At the outset, it is required to be noted that in the present case,the appellant – accused has been convicted by two different courts intwo different trials for the offences with respect to the differenttransactions. In one case, he has been sentenced to undergo 12 yearsRI for the offence under Section 23 and Section 21 of the NDPS Act byAmritsar Court and in another case arising out of FIR No.43/1999 heBhas been sentenced to undergo 15 years RI for the offence under Section29 read with Section 21(c) of the NDPS Act by Delhi Court. In onecase he has been convicted for having in possession of 4 kg of heroinand in another case for having 750 grams of heroin. It is also required tobe noted that judgments have been delivered in both the cases one afterCanother and in the subsequent judgment and order of conviction andsentence by the Delhi court there is no specific order passed by thelearned Trial Court (Court at Delhi) that the sentences to run concurrently.In view of the above facts, the question posed for the present appeal isrequired to be considered.D8.2 While considering the issue in the present appeal Section 427of Cr.PC is required to be referred to which reads as under:-

427. Sentence on offender already sentenced for another offence.

427. Sentence on offender already sentenced for another offence.

(1) When a person already undergoing a sentence of imprisonmentis sentenced on a subsequent conviction to imprisonment orEimprisonment for life, such imprisonment or imprisonment for lifeshall commence at the expiration of the imprisonment to which hehas been previously sentenced, unless the Court directs that thesubsequent sentence shall run concurrently with such previoussentence: Provided that where a person who has been sentencedFto imprisonment by an order under section 122 in default offurnishing security is, whilst undergoing such sentence, sentencedto imprisonment for an offence committed prior to the making ofsuch order, the latter sentence shall commence immediately.

(2) When a person already undergoing a sentence of imprisonmentGfor life is sentenced on a subsequent conviction to imprisonmentfor a term or imprisonment for life, the subsequent sentence shallrun concurrently with such previous sentence.

Therefore on a fair reading of Section 427 of Cr.PC, when aperson who is already undergoing a sentence of imprisonment issentenced on a subsequent conviction to imprisonment or imprisonmentH

for life, such imprisonment or imprisonment for life shall commence atthe expiration of the imprisonment to which he has been previouslysentenced. Meaning thereby the sentences in both the conviction shallrun consecutively. However, there is an exception to that, namely unlessthe Court directs that the subsequent sentence shall run concurrentlywith such previous sentence. There is one another exception. As perSub-section (2) of Section 427 of Cr.PC when a person already undergoinga sentence of imprisonment for life is sentenced on a subsequent convictionto imprisonment for a term or imprisonment for life, the subsequentsentence shall run concurrently with such previous sentence. Therefore,in aforesaid two cases only the subsequent sentence shall runconcurrently with previous sentence. Otherwise the subsequent sentenceshall run consecutively and the imprisonment in subsequent sentenceshall commence at the expiration of the imprisonment to which he hasbeen previously sentenced.

8.3 At this stage, few decisions of this court on whether thesubsequent sentence should run concurrently or consecutively are requiredto be referred to.

8.3.1 In the case of Mohd. Akhtar Hussain (Supra), it isobserved and held that if the transaction relating to offences is not thesame or the facts constituting the two offences are quite different in thatcase the subsequent sentence should run consecutively.

In the case of Mohd. Akhtar Hussain, this Court observed thatthe broad expanse of discretion left by legislation to sentencing Courtsshould not be narrowed only to the seriousness of the offence. No singleconsideration can definitively determine the proper sentence. In arrivingat an appropriate sentence, the court must consider, and sometimesreject, many factors. The court must ‘recognise, learn to control andexclude’ many diverse data. It is a balancing act and tortuous process toensure reasoned sentence. In consecutive sentences, in particular, theCourt cannot afford to be blind to imprisonment which the accused isalready undergoing.

Mohd. Akhtar Hussain is a case which arose under Gold(Control) Act, 1968 involving a Pakistani national, the sentence in thefirst case was imprisonment for 7 years and fine of Rs. 10 lakhs awardedby the court of Chief Metropolitan Magistrate, Ahmedabad in CC No.1674 of 1982. Upon appeal, the High Court confirmed the sentence butreduced the fine to Rs. 5 lakhs. The special leave petition filed by the A

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Aappellant therein was dismissed by this Court and the conviction andsentence became final. When the appellant was under judicial custodyin the aforesaid case, there was further investigation with regard to hissmuggling activities. It revealed widespread racket of smuggling goldand silver in collusion with several persons. The appellant therein wasagain prosecuted along with 18 others under Section 135 of the CustomsBAct, 1962. The appellant therein was convicted and sentenced for 4years rigorous imprisonment and fine of Rs. Two lakhs and defaultsentence in case of non-payment of fine.

Thereafter, the State as well as the appellant therein approachedthe High Court. The High Court accepted the State’s appeal and itCenhanced the sentence from 4 years to 7 years and made it consecutive.Consequently, the High Court dismissed the appeal of the appellant. Theresult was that he had to serve in all 14 years imprisonment which hehad challenged before this Court. Ultimately, this Court restored thesentence imposed by the Trial Court and set aside the sentence enhancedDby the High Court by allowing the appeal.

8.3.2 In the case of Ranjit Singh (Supra) in paragraph 8, it isobserved and held as under:- “8. Sub-section (1) of Section 427 CrPC provides for the situationwhen a person already undergoing a sentence of imprisonment isEsentenced on a subsequent conviction to imprisonment or lifeimprisonment. In other words, sub-section (1) of Section 427 CrPCdeals with an offender who while undergoing sentence for a fixedterm is subsequently convicted to imprisonment for a fixed termor for life. In such a situation, the first sentence, being for a fixedFterm, expires on a definite date which is known when thesubsequent conviction is made. Sub-section (1) says that in sucha situation, the date of expiry of the first sentence which theoffender is undergoing being known, ordinarily the subsequentsentence would commence at the expiration of the first term ofimprisonment unless the court directs the subsequent sentence toGrun concurrently with the previous sentence. Obviously, in casescovered by sub-section (1) where the sentence is for a fixed term,the subsequent sentence can be consecutive unless directed torun concurrently. Sub-section (2), on the other hand, provides foran offender “already undergoing sentence of imprisonment forHlife” who is sentenced on a subsequent conviction to imprisonment

for a term or for life. It is well settled since the decision of thisCourt in Gopal Vinayak Godse [Ranjit Singh v. U.T. ofChandigarh, (1984) 1 SCC 31 following Mithu v. State ofPunjab, (1983) 2 SCC 277 and reiterated in Maru Ram [(1981)1 SCC 107 that imprisonment for life is a sentence for theremainder of the life of the offender unless the remaining sentenceis commuted or remitted by the appropriate authority. This beingso at the stage of sentencing by the court on a subsequentconviction, the earlier sentence of imprisonment for life must beunderstood in this manner and, therefore, there can be no questionof a subsequent sentence of imprisonment for a term or for liferunning consecutively which is the general rule laid down in sub-section (1) of Section 427. As rightly contended by Shri Garg, andnot disputed by Shri Lalit, the earlier sentence of imprisonmentfor life being understood to mean as a sentence to serve theremainder of life in prison unless commuted or remitted by theappropriate authority and a person having only one life span, thesentence on a subsequent conviction of imprisonment for a termor imprisonment for life can only be superimposed to the earlierlife sentence and certainly not added to it since extending the lifespan of the offender or for that matter anyone is beyond humanmight. It is this obvious situation which is stated in sub-section (2)of Section 427 since the general rule enunciated in sub-section(1) thereof is that without the court’s direction the subsequentsentence will not run concurrently but consecutively. The onlysituation in which no direction of the court is needed to make thesubsequent sentence run concurrently with the previous sentenceis provided for in sub-section (2) which has been enacted to avoidany possible controversy based on sub-section (1) if there be noexpress direction of the court to that effect. Sub-section (2) is inthe nature of an exception to the general rule enacted in sub-section (1) of Section 427 that a sentence on subsequent convictioncommences on expiry of the first sentence unless the court directsit to run concurrently. The meaning and purpose of sub-sections(1) and (2) of Section 427 and the object of enacting sub-section(2) is, therefore, clear.”

8.3.3 In the case of V.K. Bansal (Supra) after relying upon thedecision of this Court in the case of Mohd. Akhtar (Supra) in paragraph10 it is observed and held as under:- ABC

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A“10. We are in the case at hand concerned more with the natureof power available to the Court under Section 427(1) of the Code,which in our opinion stipulates a general rule to be followed exceptin three situations: one falling under the proviso to sub-section (1)to Section 427; the second falling under sub-section (2) thereof;and the third where the court directs that the sentences shall runBconcurrently. It is manifest from Section 427(1) that the Courthas the power and the discretion to issue a direction but in thevery nature of the power so conferred upon the Court thediscretionary power shall have to be exercised along the judiciallines and not in a mechanical, wooden or pedantic manner. It isCdifficult to lay down any straitjacket approach in the matter ofexercise of such discretion by the courts. There is no cut anddried formula for the Court to follow in the matter of issue orrefusal of a direction within the contemplation of Section 427(1).Whether or not a direction ought to be issued in a given casewould depend upon the nature of the offence or offencesDcommitted, and the fact situation in which the question of concurrentrunning 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 Section427 of Cr.PC deals with sentence passed on an offender who is alreadyEsentenced for another offence and the power conferred on the Courtunder Section 427 to order concurrent sentence is discretionary. It isfurther observed that the policy of the legislature is that normally thesentencing should be done consecutively. It is further observed that onlyin appropriate cases, considering the facts of the case, the court can Fmake the sentence concurrently with an earlier sentence imposed. It isfurther observed that the discretion exercised by the sentencing court todirect the concurrency will have to be exercised on sound principles andnot on whims. Whether or not a direction ought to be issued in a givencase 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 settledGthat where there are different transactions, different crime numbers andthe cases have been decided by the different judgments, concurrentsentences cannot be awarded under Section 427 of Cr.PC. It is furtherobserved that however, the general rule that there cannot be concurrencyof sentences if conviction relates to two different transactions, can beHchanged by an order of the court.

8.3.5 In the case of Sharad Hiru Kolambe (Supra), it is observedand held that unless the court directs that the punishment for such twoor more offences at same trial should run concurrently, the normalprinciple is that the punishments would commence one after the expirationof the other. Similarly, in a case where a person already undergoing asentence is later imposed sentence in respect of offence tried atsubsequent trial, the general rule is that the subsequent sentence imposedrun consecutively unless there is a specific order passed by the courtwhile imposing any subsequent sentence, exercising discretion conferredunder Section 427 of Cr.PC that in the facts and circumstances thesubsequent sentence should run concurrently, the sentence imposed inboth the cases shall run consecutively.

8.3.6 In the case of Gulam Mohammad Malik vs. State ofGujarat and Anr. (2018) 14 SCC 473, this Court considered two appeals.One from the judgment of the High Court of Gujarat and the other fromthe High Court of Bombay in respect of the same appellant. In bothcases, the appellant was charged for the offences under Section 8(c),20(b) and 29 of the NDPS Act, 1985. Insofar as the case filed in Gujaratwas concerned, registered as NDPS Case No. 1 of 2002, the appellantwas convicted and directed to undergo rigorous imprisonment for tenyears and to pay fine of Rs. 1 lakh and in default to undergo furtherrigorous imprisonment for one year in case the fine was not paid.Appellant therein preferred an appeal challenging the aforesaid convictionand 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 SpecialJudge for NDPS, Court of Sessions, Greater Bombay in Special CaseNo. 60 of 2002, culminating in the conviction and sentence of appellanttherein under Section 8(c), 20(b)(ii) read with Section 31A of the NDPSAct and was sentenced to death. Death reference had been sent forconfirmation before the High Court. The appellant therein had also filedan appeal against the aforesaid conviction and sentence in the HighCourt of Bombay. The High Court rejected the Confirmation Case no. 2of 2008, filed by the State by not affirming the death sentence anddismissed the appeal of the appellant and the death sentence wasconverted into thirty years rigorous imprisonment and a fine of Rs.3lakhs. The matter pertaining to the conversion of the death sentencewas considered before this Court and on considering Section 31 of the A

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ANDPS Act on the facts of the said case, it was held that the appellanttherein had to be given maximum punishment and thereafter multiplierof one and a half times applied. Minimum term of imprisonmentprescribed under Section 31 is 10 years, on that reckoning, when it isenhanced by one and a half times, the minimum sentence comes to 15years. Ultimately, sentence ordered by this Court was rigorousBimprisonment of 16 years. The Court also had in mind that the appellanttherein was 65 years of age and suffering from various ailments. It wasalso ordered that the sentence would run concurrently and so far as withregard to both the cases, fine of Rs. 1 lakh which was imposed by theTrial Court in Gujarat was concerned, the same would remain. As far asCfine of Rs. 3 lakhs in Bombay case was concerned, the same was reducedfrom Rs. 3 lakhs to Rs. 2 lakhs. Accordingly, the appeals were disposed.9. Thus from the aforesaid decisions of this Court, the principlesof law that emerge are as under:-

(i) if a person already undergoing a sentence of imprisonmentDis sentenced on a subsequent conviction to imprisonment,such subsequent term of imprisonment would normallycommence at the expiration of the imprisonment to whichhe was previously sentenced;

(ii) ordinarily the subsequent sentence would commence at theEexpiration of the first term of imprisonment unless the courtdirects the subsequent sentence to run concurrently withthe previous sentence;

(iii) the general rule is that where there are different transactions,different crime numbers and cases have been decided byFthe different judgments, concurrent sentence cannot beawarded under Section 427 of Cr.PC;

(iv) under Section 427 (1) of Cr.PC the court has the powerand discretion to issue a direction that all the subsequentsentences run concurrently with the previous sentence,Ghowever discretion has to be exercised judiciously dependingupon the nature of the offence or the offences committedand the facts in situation. However, there must be a specificdirection or order by the court that the subsequent sentenceto run concurrently with the previous sentence.

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10. Applying the law laid down by this Court in the aforesaiddecisions and the principles of law enumerated hereinabove to the factsof the case on hand, the submissions on behalf of the appellant – accusedthat his subsequent sentence to run concurrently with the previoussentence is to be rejected outright. In the present case the appellant hasbeen convicted with respect to two different transactions, there aredifferent crime numbers and the cases have been decided by the differentjudgments. Therefore, the appellant is not entitled to any benefit ofconcurrent sentence under Section 427 of Cr.PC. As observedhereinabove, there is no specific order or direction issued by the courtwhile imposing the subsequent sentence that the subsequent sentence torun 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 directionthat the subsequent sentence to run concurrently with the previoussentence in that case also, the discretion has to be exercised judiciouslydepending upon the nature of offence or the offences committed. In thepresent case the appellant – accused has been convicted for the offencesunder the NDPS Act. He has been convicted in one case for recoveryof 4 kg heroin and sentenced to undergo 12 years RI and in another casethere is a recovery of 750 grams of heroin and considering the Section31 (ii) of the NDPS Act, he has been sentenced to undergo 15 years RI.No leniency should be shown to an accused who is found to be guilty forthe offence under the NDPS Act. Those persons who are dealing innarcotic drugs are instruments in causing death or in inflicting deathblow to a number of innocent young victims who are vulnerable. Suchaccused causes deleterious effects and deadly impact on the society.They are hazard to the society. Such organized activities of clandestinesmuggling of narcotic drugs and psychotropic substances into this countryand illegal trafficking in such drugs and substances have a deadly impacton the society as a whole. Therefore, while awarding the sentence orpunishment in case of NDPS Act, the interest of the society as a wholeis required to be taken into consideration. Therefore, even while applyingdiscretion under Section 427 of Cr.PC, the discretion shall not be infavour of the accused who is found to be indulging in illegal trafficking inthe narcotic drugs and psychotropic substances. As observedhereinabove, even while exercising discretion under Section 427 of Cr.PCto run subsequent sentence concurrently with the previous sentence, the A

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Adiscretion is to be exercised judiciously and depending upon the offence/offences committed. Therefore, considering the offences under theNDPS Act which are very serious in nature and against the society atlarge, no discretion shall be exercised in favour of such accused who isindulging into the offence under the NDPS Act.

B12. In view of the above and for the reasons stated above, thesubmissions on behalf of the appellant – accused to direct the subsequentsentence in case arising out of FIR No.43/1999 to run concurrently withthe previous sentence arising out of FIR No.134/1999 is hereby rejected.In view of the above and for the reasons stated above the present appealfails and the same deserves to be dismissed and is accordingly dismissed.

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Ankit Gyan

Appeal dismissed.

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