Mohan Bhanudas Mohite vs State Of Maharashtra
2004 Latest Caselaw 387 Bom

ORDER

D.G. Deshpande, J.

1. This appeal is filed by the accused through jail. Heard Mrs. Ruchita Dhru, advocate, appointed by the Court to represent the accused in this appeal. Criminal Application No. 4818 of 2003 is for condonation of delay. The judgment under challenge is dated 18-1-1992 delivered by the Additional Sessions Judge, Pune. There is obviously delay of more than nine years. But the prayer of the accused in main appeal is not touching the merits of the matter or challenging his conviction or sentence as such. The prayer in the appeal is that the accused has been convicted in two cases by two courts and awarded sentences of ten years. Both the sentences should run concurrently. It is for this limited purpose Appeal No. 400 of 2002 is filed by the accused through jail. As such looking to the prayer made, the delay is condoned. Criminal Application No. 4818 of 2003 is disposed of.

2. So far as Criminal Appeal No. 400 of 2002 is concerned, it is admitted and, by consent, taken up for final hearing.

3. The present appeal is filed by the accused challenging his conviction under Section 21 of the N.D.P.S. Act in Sessions Case No. 316 of 1990 by the Additional Sessions Judge, Pune by judgment dated 18-1-1992 by which he was sentenced to suffer R. I. for ten years and to pay fine of Rs. One lakh in default SI for one year. There was one more case against the accused vide Sessions Case No. 244 of 1991 and by the judgment dated 13-3-1992 accused was sentenced to suffer R. I. for ten years and to pay fine of Rs. One lakh in default one year R. I. The judgment in this Sessions Case No. 244 of 1991 and the conviction was challenged by the accused before this Court in Criminal Appeal No. 370 of 1992. It came to be dismissed on 5-9-1994.

4. At present the accused is undergoing for two sentences of ten years each and fine viz. sentence imposed upon him in Sessions Case No. 316 of 1990 and sentence imposed upon him in Session Case No. 244 of 1991. Since the judgments in both the Sessions cases were delivered on different dates i.e. 18-1-1992 and 13-3-1992 in ordinary course the accused will have to undergo sentences of ten years; firstly in Sessions Case No. 316 of 1990 and then after ten years period is over he will have to undergo R. I. for ten years as per the sentence awarded to him in Sessions Case No. 244 of 1991. The accused has, therefore, filed this appeal challenging the conviction only on the ground that the both the sentences should be made to run concurrently.

5. Advocate for the accused relied upon a judgment of the Supreme Court , Ammavasai v. Inspector of Police, Valliyanur. In that case there were two appellants. The 1st appellant Ammavasai was convicted in 4 different cases the occurrences in all of which took place between 27-3-1990 and 7-5-1990. The offences were under Section 395 of the Indian Penal Code and in each case he was sentenced to undergo rigorous imprisonment for 7 years. The 2nd appellant Deivaraj was convicted in 5 different cases the occurrences in all of which took place between 21-10-1989 and 7-5-1990 and he was sentenced to undergo rigorous imprisonment for a period of 7 years in each case. If the sentences were not made to run concurrently under Section 427 of the Criminal Procedure Code the 1st appellant would have been required to undergo R. I. for 28 years and the 2nd appellant would have been required to undergo R.I. for 35 years. In these circumstances, the Supreme Court, after taking into consideration the provisions under Section 427 of the Criminal Procedure Code directed that the appellants would undergo a total period of 14 years of imprisonment in respect of all the convictions passed against them, and that will be sufficient to meet the ends of justice.

6. Section 427 of the Criminal Procedure Code provides that if a person is already undergoing a sentence of imprisonment and is subsequently convicted to imprisonment or imprisonment for life, the second imprisonment shall commence at the expiration of first imprisonment. However, the courts have been given powers to direct that subsequent sentence shall run concurrently with the previous sentence.

7. In this case, the judgment of the Additional Sessions Judge in Sessions Case No. 316 of 1990 delivered on 18-1-1992 is the judgment of 1st conviction and sentence and; while the accused was undergoing for that sentence, he came to be again convicted and sentenced in Sessions Case No. 244 of 1991 by the judgment dated 13-3-1992.

8. Therefore, the prayer of the accused in this appeal, through jail, is that if both the sentences are not made to run concurrently, then he will have to be in jail for 20 years commencing from the date of his arrest on 2-5-1990 and then in that case will be released in 2010 [excluding the sentence imposed upon him in default of payment of fine]. The learned APP for the State fairly concedes that the facts of the case do not justify the accused to undergo sentence of 20 years and this is a case where the Court can exercise its discretion and order that subsequent sentence imposed in Sessions Case No. 244 of 1991 can run concurrently with the earlier sentence. However, the learned APP for the State contended that under Section 32-A of the N.D.P.S. Act the sentence awarded under that Act cannot be suspended, remitted or commuted, and therefore, according to him, the powers given to the court under Section 427 of the Criminal Procedure Code cannot be exercised to make two sentences to run concurrently. It is not possible to accept this argument because while exercising the powers under Section 427 Sub-section (1) of the Criminal Procedure Code the court does not suspend or either of the sentences, the court does not remit either both of the sentences nor the court commutes the sentences. The order to make two sentences to run concurrently is therefore not covered by Section 32-A of the N.D.P.S. Act and, therefore, this argument and appeal of the APP cannot be accepted. Therefore, taking into consideration the aforesaid judgment of the Supreme Court relied upon by the Counsel for the accused, this appeal is allowed to the extent only with the following directions :--

9. Sentence of 10 years imprisonment imposed upon the accused in Sessions Case No. 244 of 1991 vide Judgment dated 13-3-1992 to run concurrently with the sentence of ten years imposed upon the accused in Sessions Case No. 316 of 1990 vide Judgment dated 18-1-1992; that is to say, both the substantive sentences of ten years in the above two sessions cases to run concurrently. It is clarified that in default sentences of non-payment of fine will have to be undergone separately and independently, if the fine is not paid. Office to communicate this order immediately to the accused/appellant in jail and also to the Jailer Authority.

10. All concerned parties to act upon ordinary copy of this order duly authenticated by the Court Sheristedar.