Monday, 20 July 2020

Kerala HC: Direction to run sentence concurrently in a criminal case can be given only by the Court imposing the subsequent sentence of imprisonment

“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.
…..............................................”
In order to attract the application of Section 427 of the Code, the
following conditions have to be satisfied:
1. A person already undergoing sentence of
imprisonment stands convicted;
2. While undergoing such sentence such a person is
subsequently convicted and awarded the sentence of
imprisonment including imprisonment for life;

3. Such imprisonment of rigorous imprisonment for
life shall commence at the expiration of the
imprisonment to which he has been previously
sentenced; and,
4. The court directs that subsequent sentence shall run
concurrently with such previous sentence.
12. In other words, in order to attract Section 427(1) of the
Code, when a person already undergoing the sentence of
imprisonment is sentenced on a subsequent conviction to
imprisonment or imprisonment for life, then the second sentence shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the court directs that a subsequent sentence shall run concurrently with such previous sentence.

14. It is also trite that the benefit under Section 427 of the
Code can be conferred only by the court dealing with the subsequent
case. It has also been held that the basic rule of thumb over the years
has been the so-called single transaction rule for concurrent
sentences. The Hon'ble Supreme Court in Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Assistant Collector of Customs
(Prevention) Ahmedabad & Ors. (AIR 1988 SC 2143) held that
Section 427 of the Code relates to administration of criminal justice
and provides procedure for sentencing. The sentencing court is,
therefore, required to consider and make an appropriate order as to how the sentence passed in subsequent case is to run. It is also apposite to quote the following passage from the judgment:
“10. The basic rule of thumb over the years has been the
so-called single transaction rule for concurrent sentences.
If a given transaction constitutes two offences under
enactments generally, it is wrong to have consecutive
sentences. It is proper and legitimate to have concurrent
sentences. But this rule has no application if the
transaction relating to offences is not the same or the facts

constituting the two offences are quite different.”
15. That means, whether the sentences shall run concurrently
or consecutively can be decided only by the court deciding the latter case and not the former. 
18. Moreover, as the very provision suggests, the rule is
always that the sentences should run one after the other and the rule of concurrency is the exception. As held by the Apex Court, the benefit under Section 427 cannot be conferred for transactions which are unrelated. In such cases, the sentences should run consecutively.

20. To sum up, granting of prayer for concurrency depends on
facts and circumstances of each case and the benefit under Section 427 of the Code can be claimed only before the Court trying the subsequent offences. Direction to run concurrently can be given only in appropriate cases by the Court imposing subsequent sentence of imprisonment; the appellate court dealing with subsequent conviction also can exercise the jurisdiction.  To put it in other words,seeking such a relief from the court dealing with the first  conviction is totally out of place.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
 MR. JUSTICE K.HARIPAL
Dated: 10TH DAY OF JULY 2020 
CRL.A.No. 992 OF 2013

MUSHTHAFA  MUHAMMED, Vs THE SUB INSPECTOR OF POLICE



This is an appeal preferred under Section 374(2) of the Code of
Criminal Procedure, hereinafter referred to as the Code, challenging the
legality and correctness of the judgment of the learned Special Judge
(NDPS Act Cases), Vatakara in S.C.No.49 of 2011. That case was
taken on file on the final report laid by the Circle Inspector of Police,
Nilambur Police Station in Crime No.28/11, alleging offence
punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and
Psychotropic Substances Act, 1985, hereinafter referred to as the Act.
The prosecution case in brief is that on 17/01/2011 at about 2:45 p.m.
the accused was found at Athikkapp on the western side of Karulayi
bridge across the Karimpuzha river on the Karulayi-Palankara road, 39
metres north-west from the house of one Mannureth Mathew, bearing
door No.K.P.III/155 carrying 1.500 kgs of ganja, a narcotic drug; he
was intercepted by the Sub Inspector and party in the presence of

independent witnesses; the contraband was taken from his possession,
which was seized by following the statutory formalities and thus Crime
No.28/11 of that police station was registered. After investigation, the
Circle Inspector, Nilambur laid the charge sheet before the Special
Judge who took cognizance of the offence and summoned the accused.
The accused was defended by a counsel of his choice. After completing
the procedural formalities and hearing the counsel on both sides, when
the charge was framed, read over and explained, he pleaded not guilty.
He was on bail.
2. On the side of the prosecution, seven witnesses were
examined as PWs.1 to 7. Prosecution evidence also consist of
documents marked as Exts.P1 to P13 and material objects identified
and marked as MOs.1 to 6. On examination under Section 313 of the
Code, the accused denied all the incriminating materials highlighted
against him. He reiterated that he is innocent. As the court found it not
a fit case for acquitting under Section 232 of the Code, the accused was
called upon to enter on his evidence in defence. However, no evidence

was adduced by him. After hearing counsel on both sides, the learned
Judge rendered the impugned judgment on 28.6.2013. The accused was
found guilty of the offence alleged against him. After hearing him on
punishment, he was sentenced to undergo rigorous imprisonment for
four years and to pay a fine of Rs.75,000/-, in default to undergo
rigorous imprisonment for six months, for the offence under Section
20(b)(ii)(B) of the Act. He was also given set off under Section 428 of
the Code.
3. The appellant has challenged that conviction and sentence,
in this appeal. By order dated 12.07.2013, this Court suspended the
sentence and directed to release him on bail, on certain terms and
conditions.
4. I heard Sri. Sunny Mathew, the learned counsel for the
appellant and Sri.D.Chandrasenan, the learned Public Prosecutor.
5. Even though numerous grounds were urged in support of
the appeal, the learned counsel for the appellant has fairly submitted that he is not touching the merits of the finding. He has raised only two
contentions before Court. Firstly, he said that the appellant has since
been convicted by the same court in S.C.No.21/2016 for another
offence under the Act and, therefore, he is entitled to get the sentence
imposed by the judgment under challenge run concurrently. Secondly,
he argued that the sentence imposed is disproportionate to the offence
proved and thus prayed for showing leniency.
6. The learned Public Prosecutor said that the appellant is not
entitled to get the benefit of Section 427 of the Code. According to
him, the sentence imposed is commensurate with the gravity of the
offence proved against him.
7. As mentioned earlier, the crime was registered by PW4 the
Sub Inspector of Nilambur police station. According to him, on
getting a tip off, he had proceeded to the place of occurrence after
entering the information in the station GD and sending the Ext.P4,
report under Section 42 of the Act, to the Circle Inspector; on reaching the spot near the bridge, a person with the given specifications was  found standing there carrying a packet with him; seeing the police party he tried to move away, but he was intercepted; on conductingbody search, nothing incriminating could  be found out. However, when the packet carried by him was examined in the presence of independent witnesses and other members of the police party, it contained 1.500 kgs of dried gunja which was seized under the Ext.P1 seizure mahazar, prepared at the place. PW1 and another independent witness had attested the mahazar. After arresting the accused, the party returned to the police station and registered the crime and later, the accused and the MOs were produced before the court. He also sent a
report promptly under Section 57 of the Act to the Circle Inspector,
which is marked as Ext.P10. The investigation was taken over by
PW6, who was in charge of the Circle Inspector who conducted initial investigation by preparing the scene mahazar; he also prepared the Ext.P12 forwarding note for obtaining chemical examination report of the material object. The witness has acknowledged the receipt of both reports sent by PW4 under Sections 42 and 57 of the Act, marked as
Exts.P4 and P10 respectively. PW7 the Circle Inspector of Police,
who took over the investigation from PW6, completed the
investigation and laid the charge sheet. He also proved the Ext.P13
chemical examination report, which shows that the sealed packet in
respect of Crime No.28/11 of Nilambur police station was received intact
and on examination it was found and identified as gunja, i.e.
cannabis sativa.
8. PW1, the independent witness, who had attested the
seizure mahazar, turned hostile to the prosecution, though he identified
his signature in Ext.P1. PW2 the Village Assistant proved the Ext.P2
scene plan. Similarly, PW3 attested the scene mahazar, marked as
Ext.P3 mahazar, though he feigned ignorant about its content. PW4 is
the detecting officer, the Sub Inspector of Police who proved Exts.P4
to P11 documents and also identified MOs.1 to 6. PW5 is the Civil
Police Officer who accompanied the Sub Inspector who helped him in
seizing the contraband from the appellant and preparing the documents.

9. That means, the oral testimony of PWs.4 and 5 police
officials clearly indicate that the appellant was arrested from the said
place while carrying 1.500 kgs of gunja. Oral testimony of these
witnesses remain unshaken in cross-examination. There is not even a
suggestion that they were fabricating a false case against the appellant.
10. Though the correctness of the finding of the learned
Special Judge is not disputed, the oral testimony of witnesses and the
materials clinchingly suggest that the appellant was found in illegal
possession of 1.500 kgs of dried gunja, which is an offence punishable
under Section 20(b)(ii)(B) of the Act. Thus the finding of the learned
Special Judge is beyond reproach and is liable to be confirmed.
11. Now I shall consider the two contentions urged by the
learned counsel for the appellant. Firstly, he pleaded for the benefit of
Section 427 of the Code on the premise that the appellant stands
convicted in another NDPS crime, SC 21/16 of that court whereby he
has been sentenced to undergo rigorous imprisonment for 15 years.
No other material is available before this Court with regard to the

proceedings undergone by the appellant in another crime under the
Act or the punishments imposed. Section 427(1) of the Code reads
thus:
“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.
…..............................................”
In order to attract the application of Section 427 of the Code, the
following conditions have to be satisfied:
1. A person already undergoing sentence of
imprisonment stands convicted;
2. While undergoing such sentence such a person is
subsequently convicted and awarded the sentence of
imprisonment including imprisonment for life;

3. Such imprisonment of rigorous imprisonment for
life shall commence at the expiration of the
imprisonment to which he has been previously
sentenced; and,
4. The court directs that subsequent sentence shall run
concurrently with such previous sentence.
12. In other words, in order to attract Section 427(1) of the
Code, when a person already undergoing the sentence of
imprisonment is sentenced on a subsequent conviction to
imprisonment or imprisonment for life, then the second sentence shall
commence at the expiration of the imprisonment to which he has been
previously sentenced, unless the court directs that a subsequent
sentence shall run concurrently with such previous sentence.
13. It is certain from a host of authorities that the sentencing
court has the discretion to direct concurrency. The investiture of such
discretion presupposes that it will be exercised on sound principles,
regulated according to the known rules of law. Any casual direction
made regarding concurrency often go against the express provisions
of the statute.

14. It is also trite that the benefit under Section 427 of the
Code can be conferred only by the court dealing with the subsequent
case. It has also been held that the basic rule of thumb over the years
has been the so-called single transaction rule for concurrent
sentences. The Hon'ble Supreme Court in Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Assistant Collector of Customs
(Prevention) Ahmedabad & Ors. (AIR 1988 SC 2143) held that
Section 427 of the Code relates to administration of criminal justice
and provides procedure for sentencing. The sentencing court is,
therefore, required to consider and make an appropriate order as to
how the sentence passed in subsequent case is to run. It is also
apposite to quote the following passage from the judgment:
“10. The basic rule of thumb over the years has been the
so-called single transaction rule for concurrent sentences.
If a given transaction constitutes two offences under
enactments generally, it is wrong to have consecutive
sentences. It is proper and legitimate to have concurrent
sentences. But this rule has no application if the
transaction relating to offences is not the same or the facts

constituting the two offences are quite different.”
15. That means, whether the sentences shall run concurrently
or consecutively can be decided only by the court deciding the latter
case and not the former. Thus, for reasons more than one, the
argument of the learned counsel for the appellant cannot be found
favour with. The impugned judgment relates to an offence committed
on 17/01/2011 following which a crime was registered and
S.C.No.49/11 was originated before the trial court. Now the appellant
has approached this Court challenging the correctness of that
judgment rendered on 28/06/2013. Even in the absence of materials
showing details of the subsequent conviction, from the words of the
learned counsel, there are reasons to suggest that the appellant stands
convicted for another crime committed later in point of time, in a case
took cognizance by the Court in 2016. In other words, the cause of
action and the conviction have taken place much later in point of
time.
16. The learned counsel for the appellant has now canvassed a

position in which a sentence imposed on the appellant on an earlier
point of time, to run concurrently with a sentence imposed on him
long after imposing the first sentence. That is against the very purport
of the statute. It should be the other way round. When the latter
judgment was pronounced, the appellant should have brought the
earlier conviction to the notice of the court and should have prayed
for running the sentences concurrently, so that, if accepted, the
appellant would have saved four years imprisonment. That power is
vested with the court imposing the subsequent imprisonment or its
appellate court. Now, it is settled by authoritative pronouncements
that such a power is also available with this Court under Section 482
of the Code.
17. Secondly, as indicated earlier, the question whether two
sentences should run concurrently or consecutively depends upon the
exercise of discretion by the court. As held by this Court in Grahari
v. State [1988 (1) KLT 85], court must apply its mind to the facts and
circumstances of the case and should not make it a meaningless

exercise, missing the nuances of the case. Such an exercise can be
done only if all the materials are placed before the court. But, the
argument of the learned counsel stands alone, without the appellant
making available the materials to exercise the discretion by the court.
18. Moreover, as the very provision suggests, the rule is
always that the sentences should run one after the other and the rule
of concurrency is the exception. As held by the Apex Court, the
benefit under Section 427 cannot be conferred for transactions which
are unrelated. In such cases, the sentences should run consecutively.
19. The learned counsel for the appellant placed reliance on
the decision reported in Mani and Another v. State of Kerala (1983
Cri.LJ 1262) and an unreported decision of the Madras High Court in
Crl.O.P.(MD) No.14056 of 2019. I have no doubt that these decisions
cannot support the argument of the counsel. In Mani's case (supra), a
Division Bench of this Court was considering the question whether
the inherent powers of the Court under Section 482 of the Code can

be invoked to decide whether two sentences should run concurrently
or consecutively. Overruling an earlier decision of a learned Single
Judge of this Court in Bhaskaran v. State (1978 KLT 6) the Division
Bench answered the question in the affirmative. The Madras High
Court decision deals with simultaneous disposal of matters by the
High Court in two prosecutions for offence under Section 138 of the
Negotiable Instruments Act, after the disposal of appeals and
revisions. Both the decisions were rendered in different contexts and
cannot help the appellant.
20. To sum up, granting of prayer for concurrency depends on
facts and circumstances of each case and the benefit under Section
427 of the Code can be claimed only before the Court trying the
subsequent offences. Direction to run concurrently can be given only
in appropriate cases by the Court imposing subsequent sentence of
imprisonment; the appellate court dealing with subsequent conviction
also can exercise the jurisdiction. In appropriate cases, such a benefit
can be given by the High Court also, in exercise of its inherent

jurisdiction under Section 482 of the Code. To put it in other words,
seeking such a relief from the court dealing with the first conviction is
totally out of place.
21. That means, the argument of the learned counsel, that the
appellant is entitled to get the sentences run concurrently with the
sentence imposed on him on subsequent point of time, cannot be
accepted.
22. This Court finds it difficult to approve the second
argument also. In no stretch of imagination it could be held that,
having regard to the nature and gravity of the offence, the imposition
of a sentence of rigorous imprisonment for four years and fine is
disproportionate. It is a fact that use of gunja and the like narcotic
drugs has become rampant. It has got far reaching impact on the
posterity. As held by the Apex Court in Union of India v. Kuldeep
Singh (AIR 2004 SC 827), an offence relating to narcotic drugs or
psychotropic substance is more heinous than a culpable homicide

because the latter affects only an individual while the former affects
and leaves its deleterious impact on the society, besides shattering the
economy of the nation as well. If such offences are not dealt with an
iron hand, it would grow as an offence against the posterity.
23. The subsequent conduct of the appellant also suggests that
the conviction and sentence under challenge had little impact in his
character. He has also proved himself unfit to claim any indulgence
from the Court.
On these considerations, the appeal lacks merits. Confirming
the conviction and sentence imposed by the trial court, the appeal is
dismissed.
Sd/-
K. HARIPAL
JUDGE
02/07/2020

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