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2020 DIGILAW 166 (MAD)

C. Krishnaveni v. Inspector of Police, Chennai

2020-01-23

G.JAYACHANDRAN

body2020
ORDER : (Prayer in Crl.M.P.SR.No.61481 of 2011: This Petition is filed under Section 427 (1) r/w 31(1) of Cr.P.C., to direct the sentences imposed through judgment in Crl.A.No.547 of 2011 dated 16.04.2019 on the file of this Court to run concurrently along with sentence imposed through judgment in Crl.A.No.210 of 2011 dated 10.04.2019 on the file of this Court. Crl.M.P.SR.No.61482 of 2011:- This Petition is filed under Section 427 (1) r/w 31(1) of Cr.P.C., to direct the sentences imposed through judgment dated 10.04.2019 in Crl.A.No.210 of 2011 to run concurrently along with sentence imposed through judgment in Crl.A.No.547 of 2011 dated 16.04.2019 on the file of this Court.) 1. These two miscellaneous petitions are filed by one C.Krishnaveni aged about 85 years, presently in the Central Prison for Women, Puzal, Chennai convicted in two criminal cases arising under NDPS Act. In these two petitions, she seeks for a direction to the effect that the sentences as modified in the respective appeals should run concurrently. 2. The necessary details of the two cases, in which, she is now undergoing sentence is tabulated as under: Cr.No/offence 745 of 2005: (03/07/2005) Possession of 2.500 Kg Ganja. 863/2004 : (22/10/2004) Possession of 2.320 kg Ganja. Section 8 (c) r/w 20(b)(ii) (B) of NDPS Act. Section 8 (c) r/w 20(b)(ii) (B) of NDPS Act Trial Court S.C 148/2005 S.C 102/2005 Judgment Date and sentence 25/08/20115 years RI: 15/03/20113 years RI: Fine Rs. 1,00,000/- i/d 6 months RI Fine Rs. 25,000/- i/d 6 months RI High Court Crl.A.No.547/2011 Crl.A.No.210/2011 Judgment Date and Sentence 16/04/2019 Modified to 2 years RI; 10/04/2019 Modified to 18 months RI. No change in the fine amount and default sentence. No change in the fine amount and default sentence. 3. In the affidavit filed in support of these petitions, the convict/ petitioner states that she is 85 years old and since 09/04/2019, she is in prison. Unless this Court directs, both the sentences imposed on her through judgment in Crl.A.No.210/2011 and Crl.A.No.547/2011 to run concurrently, very serious prejudice will be caused to her. Especially in the circumstances, wherein, she is old and suffering from all old aged related illnesses. 4. The Registry found that the prayer in these petitions are not maintainable, hence, returned. Unless this Court directs, both the sentences imposed on her through judgment in Crl.A.No.210/2011 and Crl.A.No.547/2011 to run concurrently, very serious prejudice will be caused to her. Especially in the circumstances, wherein, she is old and suffering from all old aged related illnesses. 4. The Registry found that the prayer in these petitions are not maintainable, hence, returned. The Learned counsel appearing for the petitioner has made endorsement stating that, these petitions are maintainable under section 427(1) CrPC r/w Section 31 of Cr.P.C. Therefore, the petitioners are listed before this Court under the caption “for Maintainability”. 5. The learned counsel for the petitioner submitted that the petitioner is 85 years old lady and one foot in the grave. She suffers all ailments. Since 09/04/2019, she is in prison. The period of sentence as modified in these two appeals if run consecutively, it will take 3 ½ years. The petitioner may not survive to complete the sentence imposed on her. To facilitate her to die peacefully, this Court can exercise its inherent power and direct the sentence imposed in previous case and subsequent case to run concurrently. 6. The learned counsel for the petitioner would further submit that the petitions are maintainable in view of section 427 (1) r/w 31 (1) of Cr.P.C. Further, the learned counsel also submitted that, such direction can be issued even after the pronouncement of judgment and it will not amount to reviewing the judgments. The inherent power of the High Court under section 482 Cr.P.C is unfettered and section 32 A of the NDPS Act will not attract. 7. The learned counsel for the petitioner in support of the above submission, would rely upon the following judgments: (i) A.S.Naidu –vs- The State of Madhya Pradesh (1975 Crl.L J 498); (ii) Sher Singh –vs- State of Madhya Pradesh (1989 Crl.L J 632) and (iii) Mohan Bhanudas Mohite –vs- St of Maharashtra (2004 Crl.L J 2945). 8. The learned Additional Public Prosecutor appearing for the State submitted that the petitioners are not maintainable in view of Section 31 of NDPS Act which mandates the Court to impose enhanced punishment for similar offences after previous conviction. Therefore, Section 427 (1) of Cr.P.C has no application to NDPS Act. Further, the inherent power of the High Court under Section 482 Cr.P.C can be exercised only to secure the ends of justice and not to defeat justice. Therefore, Section 427 (1) of Cr.P.C has no application to NDPS Act. Further, the inherent power of the High Court under Section 482 Cr.P.C can be exercised only to secure the ends of justice and not to defeat justice. In this case, both the trial Court as well as the Appellate Court has recorded that the accused Krishnaveni an habitual offender, a notorious drug trafficker. The trial Court in the subsequent case, while imposing sentence has taken note of the previous sentence and had imposed enhanced sentence. The appellate court has modified the sentence taking note of her age as well as antecedents. 9. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the State. 10. The petitioner, harp on Section 427 (1) Cr.PC and the judgment in A.S. Naidu case (cited supra) to convass his submission that the Court can exercise its discretion under section 427 (1) of Cr.P.C., and direct the sentence awarded in subsequent trials to run concurrently with the sentence awarded in previous trial even after the appeals preferred by the convict have been dismissed. 11. In A.S.Naidu case (cited supra), before the Division Bench, the following question under Section 397 of the Old Code, which is in corresponding to Section 427 of the 1973 Code, arose for consideration: “Whether this Court can exercise discretion under Section 397 of the Code of Criminal Procedure and direct the sentence awarded in subsequent trials to run concurrently with the sentence awarded in previous trial even after the appeals or revisions preferred by the convict have been dismissed?” The Division Bench answers the question as below: 7. The bask point for consideration in this connection is whether the direction to make the sentences to run concurrently under Sub-section (1) of Section 397 of the Code involves any review of the judgment in the subsequent case. A judgment in a criminal case consists of two important elements: a finding on the charge and, in the case of conviction, the nature and quantum of sentence. The exercise of the power under Sub-section (1) of Section 397 does not in any way modify or alter the judgment in the case in which the subsequent sentence has been awarded, inasmuch as it does not affect the nature or quantum of sentence. The exercise of the power under Sub-section (1) of Section 397 does not in any way modify or alter the judgment in the case in which the subsequent sentence has been awarded, inasmuch as it does not affect the nature or quantum of sentence. It is a power pertaining to the manner of execution of the subsequent sentence rather than the award of appropriate sentence according to law-Therefore, the direction to make the sentence awarded in a subsequent case to run concurrently with the sentence awarded in a case decided earlier does not amount to review of the judgment in which the subsequent sentence is passed. Since no modification of the judgment itself is involved, the power to make the two sentences run concurrently under Sub-section (1) of Section 397 of the Code can be exercised at any time when the matter is brought to the notice of the Court by an application or otherwise. No doubt, it would be proper to exercise this power at the time of deciding the case itself on merits whether on appeal or otherwise; but the Court cannot be said to have become functus officio and as such not competent to exercise the power when the case has already been decided on merits whether on appeal or otherwise. In our view, the power can be exercised even at a later stage, being an independent power conferred by subsection (1) of Section 397 of the Code not involving any review of the judgment on merits. ............. 11. We, therefore, answer the question posed for consideration in this case as under: This Court can exercise its discretion under Sub-section (1) of Section 397 of the Code and direct the sentence awarded in a subsequent trial to run concurrently with the sentence awarded in a previous trial, even after the appeals or revisions preferred by the convict against his conviction in the said trials have been dismissed.” 12. The above said preposition of law laid in A.S. Naidu case (cited supra) by a Division Bench of the Madya Pradesh High Court on 26/08/1974, later held to be no longer good by the Full Bench of that Court in Sher Singh Case (cited supra). The Full Bench of the Madya Pradesh High Court in Sher Singh case has held that, “7. The Full Bench of the Madya Pradesh High Court in Sher Singh case has held that, “7. The reference is, therefore, answered by saying (i) that the decision of this Court in A.S. Naidu v. State of M.P. 1975 Cri LJ 498 (supra) is no longer good law to the extent it says that power under Section 427(1) of the Code can be exercised by the trial or appellate court at any stage at any time even after decision on merits in the case but not Under Section 482 and the court does not become functus officio. (ii) The High Court has power in appropriate cases to entertain an application under Section 482 of the Code by invoking its inherent powers at any time subsequent to the decision in a given case even if the trial court or the appellate or revisional court has failed to exercise its discretion under Section 427(1) of the Code. The case be now placed before the single Bench for decision on merits.” 13. Having realised that the Court can exercise its discretion given under Section 427 (1) Cr.P.C., only while passing the judgment and not subsequently, the learned counsel in alternate submitted that the inherent power of the High Court under section 482 Cr.P.C is unfettered and same can be exercised to mitigate the suffering of the convict who is an offender of drug trafficking. To buttress his argument, the learned counsel would rely on Mohan Bhanudas Mohite (cited supra) of the Bombay High Court. 14. With due respect to the Brother Judge of Bombay High Court who has rendered the above judgment, I wish to state that the learned judge has missed to note section 31 of the NDPS Act which was inserted by way of amendment with effect from 02/10/2001. Instead he had concentrated only on section 32 A of the NDPS Act which has no relevance to the issue. 15. At the outset, it has to be recorded that, the previous conviction of the petitioner was in fact placed before this Court and the averment in the petitioner affidavit that it was not brought to the notice of this Court is incorrect. In Crl.A.No.210 of 2011, judgment dated 10/04/2019, this Court has concluded as below:- “14. Therefore, in the light of the above fact, this Court finds no error in the judgment of the trial Court. In Crl.A.No.210 of 2011, judgment dated 10/04/2019, this Court has concluded as below:- “14. Therefore, in the light of the above fact, this Court finds no error in the judgment of the trial Court. However, though it has been brought to the notice of this Court that the appellant is a habitual offender and few more cases under NDPS Act are pending against her. Considering the quantity of contraband i.e., 2.500 kgs of Ganja and her age, this Courts modifies the sentence of imprisonment from 3 years R.I to 18 months R.I. However, the fine of Rs.25,000/-, in default 6 months R.I stand unaltered. 15. Accordingly, the Criminal Appeal is partly allowed with the above said modification. The trial Court is directed to secure the presence of the accused/appellant to undergo the remaining period of sentence, if any. The period already undergone by the accused shall be given set off as provided under Section 428 Cr.P.C.” In Crl.A.No. 547 of 2011, judgment dated 16/04/2011, this Court has concluded as below: “22. As far as the punishment is concerned, the trial Court has taken note of the antecedents of the accused and has applied Section 31 of the NDPS Act to impose enhanced punishment. The trial Court has also taken note of the age of the accused, at that time. Now, the appellant has almost crossed 80 years. Therefore, though she has been proved to be a habitual offender under the NDPS act, taking note of her age, it is suffice to sentence her to undergo two years rigorous imprisonment instead of 5 years rigorous imprisonment. There shall be no change in the fine amount and the default sentence. Accordingly, the criminal appeal is partly allowed.” 16. Now, it is appropriate to refer section 31 of the NDPS Act and section 427 of the Cr.P.C., which read as below: Section 31 of the NDPS Act: “[31. Enhanced punishment for offences after previous conviction.? There shall be no change in the fine amount and the default sentence. Accordingly, the criminal appeal is partly allowed.” 16. Now, it is appropriate to refer section 31 of the NDPS Act and section 427 of the Cr.P.C., which read as below: Section 31 of the NDPS Act: “[31. Enhanced punishment for offences after previous conviction.? (1) If any person who has been convicted of the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit, any of the offences punishable under this Act is subsequently convicted of the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit, an offence punishable under this Act with the same amount of punishment shall be punished for the second and every subsequent offence with rigorous imprisonment for a term which may extend to one-half of the maximum term of imprisonment and also be liable to fine which shall extend to one-half of the maximum amount of fine. (2) Where the person referred to in sub-section (1) is liable to be punished with a minimum term of imprisonment and to a minimum amount of fine, the minimum punishment for such person shall be one-half of the minimum term of imprisonment and one-half of the minimum amount of fine: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding the fine for which a person is liable. (3) Where any person is convicted by a competent court of criminal jurisdiction outside India under any corresponding law, such person, in respect of such conviction, shall be dealt with for the purposes of sub-sections (1) and (2) as if he had been convicted by a court in India.]” Section 427 of the Cr.P.C.: “427. Sentence on offender already sentenced for another offence. 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: Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately. (2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run con- currently with such previous sentence.” 17. NDPS Act being a special Act being enacted to eradicate the menace of drug abuse and trafficking, mandates the Courts, under section 31 of the NDPS Act to impose enhanced sentence for repeat offenders. Whereas Section 427 (1) of the Code, speaks about the discretion vest with the Court which renders subsequent judgment to direct the subsequent sentence shall run concurrently. Section 31 of the NDPS Act and Section 427(1) of the Cr.P.C are mutually exclusive. Therefore, as far as offences under NDPS Act, in the light of section 31 of the NDPS Act, the section 427 (1) of the Code gets implicitly excluded. 18. Likewise, Section 482 of the Code also cannot be invoked to direct the subsequent sentence to run concurrently with the previous sentence, since, the inherent power of the High court under section 482 of the Code can be exercised only under following three circumstances: i) to give effect to any order under the code, ii) to prevent abuse of the process of any court and iii) to secure the ends of justice. 19. 19. In Madhu Limaye -vs- St of Maharashtra, ( AIR 1978 SC 47 ), the Hon’ble Supreme Court has held that the following principles would govern the exercise of the inherent jurisdiction of a High Court given by section 482 of the Code: (i) the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; (ii) it should be exercised very sparingly to prevent abuse of the process of any court or otherwise to secure the ends of justice and (iii) it should not be exercised as against the express bar of the law engrafted in any other provision of the Code. 20. Section 427 of the Code, vest the discretion to the Court hearing the subsequent case of the same accused, 'whether the sentence in the subsequent case should run concurrently or consecutively'. If the Court in its wisdom think fit, may direct the subsequent sentence shall run concurrently with the previous sentence. Contrarily, Section 31 of the NDPS Act prescribes enhanced sentence for the subsequent offence. Any attempt to apply section 427 of Cr.P.C for an offender under NDPS Act will amount to eclipse section 31 of the NDPS Act and defeat the intention of the legislation. 21. The maximum sentence for possessing in between quantity of ganja is 10 year rigorous imprisonment. The total period of sentence in both the cases after modification by this court is only 3½ years of rigorous imprisonment. As pointed out earlier, while modifying the sentence, this Court has taken of all the factors necessary to fix the period of sentence as in both the cases. Therefore, these two petitions are dismissed as not maintainable.