Mohd. Akhtar
Hussain Alias Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs
(Prevention) Ahmedabad & Ors [1988] INSC 259 (31 August 1988)
Shetty,
K.J. (J) Shetty, K.J. (J) Oza, G.L. (J)
CITATION:
1988 AIR 2143 1988 SCR Supl. (2) 747 1988 SCC (4) 183 JT 1988 (3) 586 1988
SCALE (2)552
ACT:
Criminal
Procedure Code, 1973, Section 427-Sentence- Concurrent or
consecutive-Principles to be followed.
HEAD NOTE:
The
appellant was charged under section 95(l)(ii) of the Gold (Control) Act, 1968
pursuant to seizure of 7,000 tolas of foreign mark gold from his possession. He
pleaded guilty to the charge and was convicted and sentenced to the maximum
punishment of imprisonment for 7 years and fine of Rs.10 lakhs prescribed under
the Act. On appeal, the High Court confirmed that sentence but reduced the fine
to Rs.5 lakhs.
The
Supreme Court confirmed the sentence in a special Leave petition filed by the
appellant. While the appellant was under judicial custody, he was again
prosecuted along with 19 others under section 135 of the Customs Act for
smuggling of gold and export of silver out of India. The appellant pleaded guilty to the charge and was
convicted and sentenced for 4 years R.I. with fine of Rs.2 lakhs by trial
court.
Both
sentences were ordered to run consecutively. On appeal, the High Court enhanced
the sentence from 4 years to the maximum prescribed punishment of 7 years on
the ground that the enormity of the crime committed by the appellant warranted
nothing else than the maximum sentence.
Allowing
the appeal by the appellant on the question of sentence,
HELD:
1. Section 427, Cr. P.C. relates to administration of criminal justice and
provides procedure for sentencing.
The
basic rule of thumb over the years has been the so called single transaction
rule for concurrent sentences. If a given transaction constitutes two offences
under two enactments generally, it is wrong to have consecutive sentences. It
is proper and legitimate to have concurrent sentences. But this rule has no
application if the transaction relating to offences is not the same or the
facts constituting the two offences are quite different.[751C,D-E] PG NO 746 PG
NO 747 2(i) The enormity of the crime committed by the accused is relevant for
measuring the sentence. But the maximum sentence awarded in one case against
the same accused is not irrelevant for consideration while giving the
consecutive sentence in the second case although it is grave. The court has to
consider the totality of the sentences which the accused has to under go if the
sentences are to be consecutive. The totality principle has been accepted as
correct principle for guidance. [753E.F] R. v. Edward Charles French, [1982]
Cr. App. R. (S) p. 1 at 6, referred to.
In the
instant case, the trial court has properly considered all aspects including the
plea of guilty and given good reasons for awarding 4 years R.I. That means in
all, the appellant has to undergo 11 years of imprisonment.
That
by itself is quite Long enough in a man's life. But the High Court took a
narrow view of the whole matter with the enormity of the crime on the
forefront. [753G-H] 2(ii) The broad expanse of discretion left by legislation
to sentencing courts should not be narrowed only to the seriousness of the
offence. No single consideration can definitively determine the proper
sentence. In arriving at an appropriate sentence, the court must consider, and
some times reject, many factors. The court must `recognise, learn to control
and exclude' many diverse data. It is a balancing act and tortuous process to
ensure reasoned sentence. In consecutive sentences, in particular, the court
cannot afford to be blind to imprisonment which the accused is already
undergoing. [753H ; 754A-B]
3.
Generally, it is both proper and customery for courts to give credit to an
accused for pleading guilty to the charge. But no credit need be given if the
plea of guilty in the circumstance is inevitable or the accused has no
alternative but to plead guilty. The accused being caught red handed is one
such instance. [753B]
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 467 of 1988.
From
the Judgment and Order dated 20th July, 1987 of the Gujarat High Court in Crl.
Appeal No. 260/87 with Crl. Appeal No. 105/87 and Crl. Appeal No. 444/87.
Soli
J. Sorabji, Mukul Mudgal, E.K. Jose and P.H. Parekh for the Appellant.
PG NO
749 G.A. Shah, M.N. Shroff, B. Datta, A.K. Srivastava, P. Pramesh and Mrs. Sushma
Suri for the Respondents.
The
Judgment of the Court was delivered by JAGANNATHA SHETTY, J. We grant Special
leave and proceed to dispose of the appeal.
The
appeal arises from a Judgment of the Gujarat High Court dated 20th July 1987in
Criminal Appeal Nos. 260/1987, 105/1987 and 444/1987. It raises a short but not
very easy point for determination. The point relates to sentencing practice as
to concurrent or consecutive sentences.
The
essential facts can be stated in summary form as follows:
Appellant-Mohd.
Akhtar Hussain alias Ibrahim Ahmad Bhatti is a Pakistani national. On 15 April 1982, the gold 7(NN) tolas of foreign
mark of the value of Rs. 1.4 crores was seized from his possession at Ahmedabad.
Later he was arrested. On 23 September, a case was filed in the Court of Chief
Metropolitan Magistrate, Ahmedabad in CC No. 1674 of 1982. He was charged under
s. 85( I)(ii) of the Gold (Control) Act, 1968. He pleaded guilty to the charge.
On 11 January, 1984 he was convicted and sentenced to
imprisonment for 7 years and fine of Rs. 10 lakhs. It is the maximum punishment
prescribed under the Gold (Control) Act. Upon appeal, the Bombay High Court
confirmed that sentence but reduced the fine to Rs.5 lakhs. The special leave
petition filed by the appellant was dismissed by this Court. That conviction
and sentence became final.
When
the appellant was under judicial custody in the aforesaid case, there was
further investigation with regard to his smuggling activities. It revealed
widespread racket of smuggling gold and silver in collusion with several
persons. On 6 January,
1983 he was again
prosecuted along with 18 others under s. 335 of the Customs Act, 1962. The
complaint in this case was filed before the Additional Chief Metropolitan
Magistrate, Ahmedabad. It was registered as CC No. 129/1986. It was alleged in
the complaint that the appellant and others had imported gold worth Rs. 12.5 crores
and smuggled out of India silver worth Rs. 11.5 crores during
December 1981 to February 1982. In this case also the appellant did not wait
for the trial of the case. He pleaded guilty to the charge. The other 18
accused, however, did not They denied the charge and the case against them is
said to be still pending for disposal.
PG NO
750 On January, 1987, the trial Magistrate convicted the appellant, in the
following terms:
"Accused
No. 1 in this case is proved guilty under Section 235 of Customs Act and it is
ordered that accused No. 1 is sentenced for 4 years (for four years R.I. and a
fine of Rupees two lakhs (Rupees two lakhs only) and if fine not paid, further
sentence of R.I. for six months more. This sentence is to be undergone on expiration
of sentence in Crl. case No. 1674/82. Accused is found guilty under section
120(B) of Indian Penal Code, but no separate sentence is ordered, for the
same." The reasons given in support of the above conclusion are:
"It
is not proper to pass order only by taking the circumstances and difficulties
of the accused.
Simultaneously,
midway should be found looking to the circumstances of the nation and personal
circumstances of the accused. It is not possible to order sentence of both the
cases of the accused, to run concurrently. When the accused in previous case,
was ordered to undergo sentence of seven years R.I. then, in this case it does
not seem reasonable to order sentence for similar period i.e. detain in jail
for 12 to 14 years and fine and if fine not paid, to undergo further more
sentence. The accused had pleaded guilty and requested for mercy. It is in the
interest of justice to show slight mercy in the order of sentence by the
Court." Against this order of conviction and sentence there were appeals
and counter appeals before the High Court. The appellant appealed against the
sentence on the ground that the sentences should have been made concurrent. The
State, on the other hand, demanded the maximum sentence again. The maximum
sentence prescribed under s. 135 of the Customs Act is also 7 years. The State
contended that in view of the enormity of the economic crime committed by the
appellant, he should be given the maximum and consecutive. The High Court
accepted the State appeal, enhanced the sentence from 4 years to 7 years and
made it consecutive. Consequently, the High Court dismissed the appeal of the
appellant. The result is that he has to serve in all 14 years imprisonment
which he has challenged in this appeal.
Section
427 Cr.P.C. incorporates the principles of sentencing an PG NO 751 offender who
is already undergoing a sentence of imprisonment. The relevant portion of the
Section reads :
"427.(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.
xxxxx xxxxx
xxxxx " The Section relates to administration of criminal justice and
provides procedure for sentencing. The sentencing court is, therefore,required
to consider and make an appropriate order as to how the sentence passed in the
subsequent case is to run. Whether it should be concurrent or consecutive ? The
basic rule of thumb over the years has been the so called single transation
rule for concurrent sentences. If a given transaction constitutes two offences
under two enactments generally, it is wrong to have consecutive sentences. It
is proper and legitimate to have concurrent sentences. But this rule has no
application if the transaction relating to offences is not the same or the
facts constituting the two offences are quite different.
In
this appeal, the primary challenge to the sentence is based on assumption that
the two cases against the appellant, under the Gold (Control) Act, and the
Customs Act pertain to the same subject matter. It is alleged that the
appellant was prosecuted under the two enactments in respect of seizure of
7,000 tolas of gold. On this basis, reference is also made to Section 428 Cr.
P.C. claiming set off in regard to the period of imprisonment already undergone
by the appellant.
The
submission, in our opinion, appears to be misconceived. The material produced
by the State unmistakably indicates that the two offences for which the
appellant was prosecuted are quite distinct and different.
The
case under the Customs Act may, to some extent, overlap the case under the Gold
(Control) Act, but it is evidently on different transactions. The complaint
under the Gold (Control) Act relates to possession of 7,000 tolas of PG NO 752
primary gold prohibited under s. 8 of the said Act. The complaint under the
Customs Act is with regard to smuggling of Gold Worth Rs. 12.5 crores and
export of silver worth Rs. 11. 5 crores. On these facts, the Courts are not
unjustified in directing that the sentences could be consecutive and not
concurrent.
The
question, however, remains to be considered is whether the maximum sentence
under the Customs Act is warranted? Whether, in the circumstances, it is wrong
in principle to sentence the same offender the another maximum imprisonment? It
is argued that the High Court has failed to take into consideration the total
period of sentence which the appellant has to undergo. It is also argued that
since the conviction was based on the plea of guilty the appellant should have
been given a credit in the sentence. The personal problems of appellant are
also highlighted for reduction in the sentence.
The
High Court has refused to take into consideration the merciful plea of the
appellant and much less the plea of guilty. The enormity of the crime committed
by the appellant, according to the High Court, warranted nothing less than the
maximum sentence. The High Court had this to say:
"The
individual hardships of the appellant and his family would be of no consequence
at all. If offence was such that the maximum sentence should have been awarded,
then the learned Metropolitan Magistrate should not have made an illconceived
attempt to find out a via media. We, therefore, feel that the appeal filed by
the State requires to be allowed. The fact that the accused had pleaded guilty
is of no consequence. It is not the case of plea-bargaining because the accused
had pleaded guilty and yet he was given numerous opportunities to reconsider
his decision. If the accused even thereafter had pleaded guilty, the fact that
he was awarded a seven years' Rigorous imprisonment sentence in the previous
case would be no ground for the learned Metropolitan Magistrate to award less
than the maximum sentence if the facts of the case warranted such a maximum
sentence. The enormity of the crime called for nothing less than the maximum
sentence." We have carefully perused the entire material on record.
It may
be recalled that the appellant was given the maximum PG NO 753 sentence of 7
years in the previous case under Gold (Control) Act. The conviction there under
was also based on the plea of guilty. The latter sentence under the Customs Act
was also on the plea of guilty. Generally, it is both proper and customery for
Courts to give credit to an accused for pleading guilty to the charge. But no
credit need be given if the plea of guilty in the circumstance is inevitable or
the accused has no alternative but to plead guilty. The accused being caught
red handed is one such instance. The first case under the Gold (Control) Act
against the appellant falls into the latter category. 7,000 tolas of Gold of
foreign mark of the value of Rs. 1.4 crores were seized from the possession of
appellant. The plea of guilty in that case was inevitable. The Court was,
therefore, justified in awarding the maximum sentence. But the second case
under the Customs Act was not of that type.
Here
the prosecution has to prove many things. There are 18 other accused facing the
trial in the same case. The appellant, however, pleaded guilty perhaps on legal
advise.
He
must have been told that some credit for such plea would be given by the court
and if the credit is not given and the maximum sentence is awarded the
appellant is surely entitled to complain for giving the maximum sentence.
It is
no doubt that the enormity of the crime committed by the accused is relevant
for measuring the sentence. But the maximum sentence awarded in one case
against the same accused is not irrelevant for consideration while giving the
consecutive sentence in the second case although it is grave. The Court has to
consider the totality of the sentences which the accused has to undergo if the
sentences are to be consecutive. The totality principle has been accepted as
correct principle for guidance. In R. v. Edward Charles French, [1982] Cr. App.
R. (S) p. 1 (at 6), Lord Lane, C.J., observed :
"We
would emphasize that in the end, whether the sentences are made consecutive or
concurrent the sentencing judge should try to ensure that the totality of the
sentences is correct in the light of all the circumstances of the case."
The trial Magistrate in this case has properly considered all aspects including
the plea of guilty and given good reasons for awarding 4 years R.I. That means
in all, the appellant has to undergo 11 years of imprisonment.
That
by itself is quite long enough in a man's life. But the High Court took a
narrow view of the whole matter with the enormity of the crime on the
forefront. The broad expanse of PG NO 754 discretion left by legislation to
sentencing Courts should not be narrowed only to the seriousness of the
offence. No single consideration can definitively determine the proper
sentence. In arriving at an appropriate sentence, the court must consider, and
some times reject, many factors. The court must. `recognise, learn to control
and exlcude' many diverse data. It is a balancing act and tortuous process to
ensure reasoned sentence. In consecutive sentences, in particular, the Court
cannot afford to be blind to imprisonment which the accused is already
undergoing.
In the
result, we allow the appeal, set aside the judgment of the High Court and
restore that of the trial court.
M.L.A.
Appeal allowed.
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