It is worth paying attention that none other than the Apex Court has in a very rational, recent, remarkable and robust judgment titled Mohd Zahid vs State through NCB in Criminal Appeal No. 1457 of 2021 in exercise of its criminal appellate jurisdiction that was delivered as recently as on December 7, 2021 has reiterated that discretion to direct subsequent sentence to run concurrently with the previous sentence has to be exercised judiciously depending upon the nature of offences committed. It must be mentioned that a Bench of Apex Court comprising of Justice MR Shah and Justice BV Nagarathna observed that in NDPS cases, even while applying discretion under Section 427 of CrPC, the discretion shall not be in favour of the accused who is found to be indulging in illegal trafficking in narcotic drugs and psychotropic substances.
To start with, in this brief, brilliant, bold and balanced judgment authored by Justice MR Shah for a Bench of Apex Court comprising of himself and Justice BV Nagarathna sets the ball rolling by first and foremost putting forth in para 1 that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 31.03.2017 passed by the High Court of Delhi at New Delhi in Criminal Appeal No. 879 of 2002, by which the High Court has dismissed the said appeal preferred by the appellant herein original accused and has confirmed the judgment and order passed by the learned Trial Court, convicting the appellant for the offence under Section 29 read with Section 21(c) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentencing him to undergo rigorous imprisonment (RI) for a period of 15 years with a fine of Rs. 1,50,000/- for the aforesaid offence in view of the provisions of Section 31(ii) of the NDPS Act, the original accused has preferred the present appeal.”
While dwelling on the facts, the Bench then envisages in para 2 that, “The facts leading to the present appeal in nutshell are as under:
2.1 That the appellant herein – original accused faced 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 consecutively.”
To put things in perspective, the Bench then enunciates in para 3 that, “Feeling aggrieved and dissatisfied with the judgment and order of conviction passed by the learned Trial Court at Delhi in a case arising out of FIR No. 43/1999 (second/subsequent case), the appellant-original accused preferred the appeal before the High Court. Before the High Court, it was mainly submitted on behalf of the appellant-accused that as the appellant-accused had already undergone 12 years sentence in a case arising out of FIR No. 134/1999, he cannot be punished twice and that in a case arising out of FIR No. 43/1999 he has already undergone sentence of 6 years and 2 months, a lenient view may be taken and the sentences 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 (New Delhi Case) shall be held to run concurrently. By the impugned judgment and order the High Court has not accepted the above and has dismissed the appeal. Hence, the accused has preferred the present appeal.”
Quite significantly, the Bench then hastens to add in para 9 that, “Thus from the aforesaid decisions of this Court, the principles of law that emerge are as under:
(i) if a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such subsequent term of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced;
(ii) 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;
(iii) the general rule is that where there are different transactions, different crime numbers and cases have been decided by the different judgments, concurrent sentence cannot be awarded under Section 427 of CrPC;
(iv) under Section 427 (1) of CrPC the court has the power and discretion to issue a direction that all the subsequent sentences run concurrently with the previous sentence, however discretion has to be exercised judiciously depending upon the nature of the offence or the offences committed and the facts in situation. However, there must be a specific direction or order by the court that the subsequent sentence to run concurrently with the previous sentence.”
Most significantly, what forms the cornerstone of this notable judgment is then elaborated upon in detail in para 11 wherein it is held that, “Even otherwise as observed hereinabove under Section 427(1) of CrPC, the Court has the power and discretion to issue a direction that the subsequent sentence to run concurrently with the previous 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 15 years RI. No leniency should be shown to an accused who is found to be guilty for the offence under the NDPS Act. Those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to a number of innocent young victims who are vulnerable. Such accused causes deleterious effects and deadly impact on the society. They are hazard to the society. Such organized activities of clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have a deadly impact on the society as a whole. Therefore, while awarding the sentence or punishment in case of NDPS Act, the interest of the society as a whole is required to be taken into consideration. Therefore, even while applying discretion under Section 427 of CrPC, the discretion shall not be in favour of the accused who is found to be indulging in illegal trafficking in the narcotic drugs and psychotropic substances. As observed hereinabove, even while exercising discretion under Section 427 of CrPC to run subsequent sentence concurrently with the previous sentence, the discretion is to be exercised judiciously and depending upon the offence/offences committed. Therefore, considering the offences under the NDPS Act which are very serious in nature and against the society at large, no discretion shall be exercised in favour of such accused who is indulging into the offence under the NDPS Act.”
As a corollary, the Bench then finally holds in para 12 that, “In view of the above and for the reasons stated above, the submissions on behalf of the appellant – accused to direct the subsequent sentence in case arising out of FIR No. 43/1999 to run concurrently with the 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 appeal fails and the same deserves to be dismissed and is accordingly dismissed.”
In sum, the Apex Court thus makes it absolutely clear in this cogent, commendable, composed and convincing judgment that concurrent running of sentences shall not be allowed in drug trafficking cases! It must be mentioned here that the Bench was considering a special leave petition challenging Delhi High Court’s order refusing to grant accused the relief and holding that sentence imposed in both the NDPS cases against him be run concurrently. What the Apex Court has ruled in this notable case makes perfect sense and has to be implemented in totality! No denying it!
Sanjeev Sirohi, Advocate
Under Section 427 (1) of CrPC the court has the power and discretion to issue a direction that all the subsequent sentences run concurrently with the previous sentence, however discretion has to be exercised judiciously depending upon the nature of the offence or the offences committed and the facts in situation. However, there must be a specific direction or order by the court that the subsequent sentence should run concurrently with the previous sentence.