PETITIONER:
MOHD. AKHTAR HUSSAIN ALIAS IBRAHIM AHMED BHATTI
Vs.
RESPONDENT:
ASSISTANT COLLECTOR OF CUSTOMS (PREVENTION)AHMEDABAD & ORS.
DATE OF JUDGMENT31/08/1988
BENCH:
SHETTY, K.J. (J)
BENCH:
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.
HEADNOTE:
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]
JUDGMENT:
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 thereunder 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. PG NO 755