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Allahabad HC allows criminal appeal, says accused should undergo sentences concurrently

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The Allahabad High Court has allowed a criminal appeal while observing that if the accused is convicted for two or more different offences, arising out of one and the same transaction, the basic rule is that the sentences must be directed to run concurrently.

A single-judge bench of Justice Rajbeer Singh passed this order while hearing a Criminal Appeal filed by Pawan Singh and Another.

The appeal has been preferred against the order dated 09.06.2005, passed by the Additional Sessions Judge IVth, Gorakhpur, in Special Session Trial, under section 8/20/23/43 of Narcotic Drugs and Psychotropic Substance Act, DIR, Gorakhpur, whereby the appellant Pawan Singh and Shri Bhagwan have been convicted under Section 20(b)(ii) and Section 23 of NDPS Act and sentenced to 15 years rigorous imprisonment along with fine of Rs 1 lakh under Section 20(b) (ii) and 15 years rigorous along with fine of Rs 1 lakh under Section 23 NDPS Act.

In default of payment of fine, they have to undergo additional sentences of two years. There was no such direction that both the substantial sentences have to run concurrently.

During the pendency of the appeal, appellant No 2 Shri Bhagwan passed away and his appeal was abated vide order dated 15.03.2022. Thus, now the instant appeal is confined only in respect of appellant Pawan Singh.

According to the prosecution, on 11.07.2003 after receipt of  secret information, officials of DRI, Gorakhpur, comprising S. K. Chaturvedi, Senior Intelligence Officer and Ajit Kumar Tiwari, Inspector, DRI, intercepted a truck HR-47/4854 at National Highway-28, near Guru Nanak petrol pump. This truck was being driven by appellant No 1 Pawan Singh and co-accused Shri Bhagwan was cleaner in the truck. Both the accused were apprehended at spot. During a search of the truck, 600 packets of charas were recovered from the truck weighing a total 500 kg.

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Of the recovered charas, samples of 25 grams of the recovered material were taken from each of the packets. The statements of Pawan Singh and Shri Baghwan under Section 67 NDPS Act were recorded. During investigation, samples were sent to the Chemical Examiner, CRCL, New Delhi as well as to the Chemical Examiner, Govt Opium & Alkaloid Works, Ghazipur, for analysis and later on analysis reports were received.

The accused-appellant No 1 and co-accused were charged for offences under Section 20(b)(ii) and Section 23 of NDPS Act. The accused persons pleaded not guilty and claimed trial. During the trial, the prosecution has examined two witnesses. After evidence, the accused-appellant No 1 and co-accused were examined under Section 313 CrPC, wherein they have denied the evidence and claimed false implication. However, no evidence was led in defence.

After hearing and analysing the evidence on record, the accused-appellant No1 and co-accused were convicted.

Being aggrieved, the accused-appellant No 1 has preferred instant criminal appeal.

It has been argued by the counsel for the appellant that by the impugned judgment the appellant has been convicted under Section 20(b) (ii) and Section 23 of NDPS Act and he has been sentenced to 15 years rigorous imprisonment along with fine of Rs 1 lakh under Section 20(b) (ii) and 15 years rigorous along with fine of Rs 1 lakh under Section 23 NDPS Act. The appellant is continuously in jail since 11.07.2003 and thus, the appellant has already undergone the sentence of about 18 years nine months.

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It was submitted that the trial court has not specified that both the sentences are to be run concurrently and thus, the appellant has not been released so far. Referring to the facts of the matter, it has been submitted that the sentences awarded by the trial court be altered and that both the sentences be directed to run concurrently. It was also stated that the appellant is not a previous convict and there is no criminal antecedent against the appellant.

The SPP for the Union of India opposed and argued that in this case recovery of 500 kg charas was made from the truck, which was being carried by the appellant and co-accused and that in view of the quantity of the recovered contraband, the trial court has rightly not directed to run the sentences concurrently.

The Court observed that Section 31 of CrPC relates to the jurisdiction of court to award punishment where the accused is convicted of two or more offences at one trial. Where an accused is convicted and sentenced for several offences at one trial, the Court may direct that the sentences shall run concurrently. In the absence of such direction by the Court, sentences shall run consecutively. It is not obligatory for the trial court to direct in all cases that the sentences shall run concurrently.

The Court further observed it is clear that Section 31 CrPC leaves discretion with the Court to order sentences for two or more offences at one trial to run concurrently or consequently, having regard to the nature of offences and attendant aggravating or mitigating circumstances. However, this discretion is to be exercised having regard to the nature of the offence committed and the facts situation, in which the question arises. By and large, trial courts and appellate courts have invoked and exercised their discretion to issue directions for concurrent running of sentences, favouring the benefit to be given to the accused.

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Whether a direction for concurrent running of sentences ought to be issued in a given case would depend upon the nature of the offence or offences committed and the facts and circumstances of the case. The discretion has to be exercised along the judicial lines and not mechanically. Thus, it is apparent that if the accused is convicted for two or more different offences, arising out of one and the same transaction, the basic rule is that the sentences must be directed to run concurrently.

This basic rule of conviction arising out of a single transaction justifying the concurrent running of the sentences has been recognized in case Ibrahim Ahmed Bhatti (supra).

“In this case, the recovery of 500kg charas has been made from the truck, which was being driven by the appellant and the co-accused was also present in the truck as cleaner. The recovery has been attributed to both the accused persons and both were convicted under two heads i.e. under Section 20(b)(ii) and Section 23 of NDPS Act for possession of the same charas. The appellant no 1 has been sentenced to 15 years rigorous imprisonment along with fine of Rs 1 lakh under Section 20(b) (ii) and 15 years rigorous along with fine of Rs. 1 lakh under Section 23 NDPS Act. Thus, both the offences have arisen from the single transaction. The co-accused, who was convicted with the same sentence, has been passed away during pendency of the appeal.

In view of these facts and circumstances, applying the above discussed position of law, both the sentences awarded by the trial court must have been directed to run concurrently and thus, the trial court committed error by not directing that both the sentences shall run concurrently. In view of these facts and circumstances, interference is required in sentence,” the Court held.

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“In view of aforesaid, the conviction of accused-appellant Pawan Singh under Section 20(b)(ii) and Section 23 of NDPS Act is upheld, but regarding the sentences, it is directed that both the sentences of imprisonment awarded to the appellant no 1 by the trial court, under Section 20(b)(ii) and Section 23 of NDPS Act, shall run concurrently.

Accordingly, both the substantive sentences i.e the rigorous imprisonment of 15 years awarded under Section 20(b)(ii) and the rigorous imprisonment of 15 years awarded under Section 23 of NDPS Act, shall run concurrently. However, the amount of fine and the additional sentence awarded by the trial court in default of payment of fine shall remain the same,”

-the order reads.

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