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2013 DIGILAW 1162 (PNJ)

Balbir Kaur alias Beero v. State of Punjab

2013-08-29

JITENDRA CHAUHAN

body2013
Judgment Jitendra Chauhan, J. The present appeal has been filed against the judgment and order dated 13.9.2001, passed by the learned Special Court (N.D. & P.S.), Patiala, vide which, the appellant was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1 lac; in default of payment of fine, to further undergo RI for six months. At the very outset, the learned counsel for the appellant without assailing the findings returned by the learned trial Court on merits, made a submission that the sentence awarded by the trial Court in case FIR No.29 dated 19.2.1998 under Section 15 of 'the Act', qua which CRA No.228-SB of 1999, filed by the appellant, has been dismissed by this Court and sentence awarded in case FIR No.303 dated 3.7.2000, under Section 15 of the Act i.e. qua which the present appeal has been preferred may be ordered to run concurrently. The learned State counsel did not oppose this submission. I have heard the learned counsel for the parties and perused the case file. I am cognizant of the fact that this Court is sitting in appeal over the judgment passed by the trial Court and that being so, the correctness of the findings returned by the learned trial Court in the background of the prosecution evidence has to be gone into. On delving into the prosecution evidence with sedulous care, it emanates that these findings are well in tune with the evidence on record and the same calls for no interference. Sequelly, the conviction of Balbir Kaur @ Beero accused is upheld. I have heard the learned counsel for the parties and perused the case file. In FIR No.29 dated 19.2.1998, under Section 15 of 'the Act', the appellant was convicted and sentenced by the trial Court to undergo RI for ten years and to pay a fine of Rs.1 lac; in default of payment of fine to further undergo RI for two years. Aggrieved against the said judgment/order, the appellant filed CRA No.228-SB of 1999, which was dismissed by the High Court vide judgment dated 15.5.2008. The present appeal was admitted on 26.9.2001. Thereafter, the sentence of the appellant was suspended vide order dated 2.7.2002. Aggrieved against the said judgment/order, the appellant filed CRA No.228-SB of 1999, which was dismissed by the High Court vide judgment dated 15.5.2008. The present appeal was admitted on 26.9.2001. Thereafter, the sentence of the appellant was suspended vide order dated 2.7.2002. After dismissal of CRA No.228 SB of 1999, the appellant was again admitted in jail to serve his remaining sentence. However, the appellant is on bail in CRA No.1079 SB of 2001. In the present case, the appellant has undergone one year, eleven months and one day from the substantive sentence. The appellant has been convicted and sentenced for similar offences in both the cases. In Jang Singh vs. State of Punjab 2008(1) RCR (Criminal) 323, the Full Bench of this Court has held as under: The consensus of the judicial opinion, as may emerge from different judgments passed by various High Courts and the Hon'ble Supreme Court, seems to be that normal rule, as per Section 427 Cr.P.C., is that a person who is undergoing a sentence of imprisonment and is sentenced on a subsequent conviction to an imprisonment or an imprisonment for life, then such imprisonment or imprisonment of life shall commence after the expiration of the imprisonment, to which he has been previously sentenced. This, however, would not be so if the Court directs that the subsequent sentence shall run concurrently with the previous sentence. Such direction to make the sentences to run concurrently, as per various decisions noted above, can be exercised by the trial Court or by the appellate Court or a revisional Court at the time of exercising appellate or revisional jurisdiction as well. However, if the trial Court does not pass any such direction for making the sentences to run concurrently and appeal or revision against said decision is also decided, then it may not be open for a person to seek such direction for making the sentences to run concurrently by moving an application under Section 482/427 Cr.P.C. The view taken by one set of the High Courts that such an application can be entertained while exercising inherent powers under Section 482 Cr.P.C. would no more appear to be a good law in view of the decision of the Hon'ble Supreme Court in M.R. Kudva' case (Supra). We are, thus, bound to take this view that this discretion though available with the trial Court, appellate Court or the revisional Court while holding trial or entertaining appeal or revision but would not be so available to be exercised in isolation when application in this regard is moved either under Section 482 or 427 Cr.P.C. What principle and consideration will govern the exercise of this discretion, as already noted above, can not be exhaustively enumerated. Certain relevant factors, as can be culled out from different judgments referred to above, may give an indication where such discretion may be exercised. These factors generally would be the nature or character of the offences committed, the prior criminal record of the offender, character, his age and sex etc. ghastly nature of the crime. The offender being habitual would also be the factor, which can be relevantly taken into consideration. It may be stated at the cost of repetition that these are not the only reasons for which the Court can exercise this discretion. Discretion always is open to be exercised by any Court dependent upon the facts and circumstances of each case on any relevant or valid consideration as may be considered so by the Court while holding the trial or deciding the case at the stage of appeal or revision. It may require a notice that Section 427 Cr.P.C., as observed by Hon'ble Supreme Court, is aimed at amelioration and this aspect may also require to be kept in view while exercising the discretion.” Taking into consideration the entirety of facts and circumstances of the instant case, the sentences awarded by the trial Court in both the cases are ordered to run concurrently. However, the fine imposed by the trial Court and its default clause is maintained. The present appeal stands disposed of accordingly.