Mohsim Ali vs State on 23 April, 2009

[Cites 15, Cited by 0]

Delhi District Court

Mohsim Ali vs State on 23 April, 2009

Crl. Appeal No. 07/2009                               Page 1 of 7



     IN THE COURT OF SH SUNIL KUMAR AGGARWAL:ASJ:DELHI


                                        Crl. Appeal No. 07/2009

Mohsim Ali
S/o. Sh. Rehmat Ali
R/o. Dagah Sheikh Kalimulla,
Pigeon Market, Jama Masjid,
Delhi
                                            ... Appellant

           Versus

State
(Through Wild Life Inspector, Delhi)
                                            ... Respondent


                             Criminal Appeal filed on 24.03.2009

JUDGMENT

1. This appeal U/s 374 Cr.PC have been filed by the appellant / convict through a counsel appointed by the Delhi Legal Services Authority against judgment dated 14.05.07 where under he was convicted U/s. 51 of Wild Life (Protection ) Act, 1972 for contravention of sections 9, 44 and 49 of the said Act and order on sentence dated 18.05.07 passed by Ld. ACMM, Delhi.

2 The facts in brief are that the appellant was Crl. Appeal No. 07/2009 Page 2 of 7 convicted U/s 51 of Wild Life (Protection ) Act, 1972 for violating the sections 9, 44 and 49 of the said Act by Learned Trial Court for unauthorizedly keeping endangered species of birds viz 150 Black Headed Munias, 22 Rose Ring Parakeets and 150 Spotted Munias by the impugned order he was sentenced to undergo rigorous imprisonment for 3 years and pay fine of Rs 25,000/- in default of payment of fine he is to further undergo simple imprisonment for a period of six months.

3 It has been contended that the appellant is a poor man and has not been keeping well. He is in jail since 04.01.07 and has no means to pay the amount of fine. The Trial Court did not consider the totality of sentences which the appellant will have to undergo if it is not to run concurrently. Even otherwise the awarded sentence is too severe despite there being no public witness. In the order of sentence the period of default sentence should also have been allowed to run concurrently with other cases. He thus urged for setting aside the sentence, waiver of fine and in the alternative the direction that the sentences of whatever nature shall run concurrently with the sentences awarded to the appellant in other cases. Crl. Appeal No. 07/2009 Page 3 of 7 4 An application U/s 5 of Limitation Act has been filed for condoning the delay in filing the appeal on the ground that none of the family members of appellant have been pursuing his case. He therefore, had filed an application for being provided legal aid counsel for filing appeal and the present appeal has been filed on the said request being allowed. Since the delay is neither intentional nor deliberate, it is liable to be condoned.

5 Ld. Addl. PP has opposed the condonation application on the ground that it has grossly become barred by the period of limitation. He has also contended that the appeal itself has no merits as the provisions of section 51 of Wild Life (Protection) Act , 1972 left no discretion with the Ld. Trial Court to alter the minimum sentence provided for second or subsequent offender.

6 I have heard Ms Sunita Vasudeva advocate appointed by Delhi Legal Services Authority on behalf of the appellant and Sh. I.U. H. Siddique, Ld. Addl. PP for the state and carefully perused the file.

Crl. Appeal No. 07/2009 Page 4 of 7

7 So far as the contents are concerned the condonation application is vague as to when the convict had applied to the court of Learned ACMM or Delhi Legal Services Authority for being provided legal aid counsel and when the counsel was actually provided to him. Nevertheless there appears some substance in the appeal of which benefit he should not be denied merely on the technical bar of limitation particularly when he is incarcerating all through with no outside support either of the family or anybody else. Sympathetic view is taken and the delay in filing present appeal is hereby condoned.

8 The appellant is apparently not aggrieved with his conviction by Learned Trial Court but with the imposition of substantive sentence. His grievance is limited to the substantive sentence and default sentence having not been made to run concurrently with similar sentences awarded to him in a number of other cases involving identical offences which has resulted in long cumulative sentences for him.

9. It has been argued that the appellant has been Crl. Appeal No. 07/2009 Page 5 of 7 convicted in not less than 15 identical cases. In case the sentences were to run consecutively as per the normal rule U/s. 427 Cr.P.C , the appellant should not hope for coming out of jail alive. Ms Vasudeva has urged that taking into account the gravity and nature of offences proved against the appellant, benefit of discretion should have been extended to him by the Ld. Trial Court .

10. Power to direct subsequent sentence to run concurrently with prior sentences can be exercised at the appellate stage by the court of Appeal. Reliance in this behalf is placed upon 1987 Crl. LJ 371, 1991 Cal. Crl. LR 345 and AIR 1978 Delhi 138 . Delving into the facts of present case it transpires that in two of the initial cases substantive sentences of less than 1 year and fine of Rs. 1,000/- had been imposed on the appellant in cases no. 32/1 and 111/1 . It was in the subsequent matters that the minimum sentence prescribed for second of subsequent offences under the second proviso to section 51 of Wild Life (Protection) Act, 1972 had to be awarded. There is an inkling that had the statutory rigor not Crl. Appeal No. 07/2009 Page 6 of 7 been there, Ld. Trial Court would have awarded comparatively lighter sentence to the appellant. The minimum sentence in the peculiar cases of appellant has resulted in imposition of too severe substantive sentences on him which may not have been intention of legislatures. It is therefore, a fit case for exercise of discretion in favour of the appellant. The substantive sentence of rigorous imprisonment for 3 years, awarded to the appellant thus shall run concurrently with previous sentences awarded to him in other cases.

11. It has been held in AIR 1950 All. 625, 1990 Mad. LJ (Crl.) 361, AIR 1940 Lahore 388 and AIR 1926 Bombay 62 that a sentence of imprisonment in default is not a sentence of imprisonment holding the meaning of Section 31 Cr.P.C (corresponding to section 28 of Cr.P.C 1973) or section 427 Cr.P.C. Section 30 Cr.P.C read with section 40 and 67 of IPC prescribe the standards of imposition of fine for the court awarding sentence to convict and lay down the parameters of default sentence in lieu thereof. Judged on the same, the default sentence awarded to the appellant cannot be said to Crl. Appeal No. 07/2009 Page 7 of 7 be exaggerated.

12. The appeal thus is partly allowed. The substantive sentence of rigorous imprisonment for 3 years shall run concurrently with previous sentences awarded to the appellant in other cases. The default sentence however, shall remain as it is and would obviously start on completion of the period of substantive sentence in case the amount of fine remains unpaid.

13. An attested copy of this order be sent to Learned Trial court for being mentioned in the conviction warrant of the appellant .

14. Appeal file be consigned to record room. Announced in open court Sunil Kr. Aggarwal on 23th April, 2009 Addl. Sessions Judge (Central) Delhi Crl. Appeal No. 07/2009 Page 8 of 7 IN THE COURT OF SH SUNIL KUMAR AGGARWAL:ASJ:DELHI Crl. Appeal No. 08/2009 Mohsim Ali S/o. Sh. Rehmat Ali R/o. Dagah Sheikh Kalimulla, Pigeon Market, Jama Masjid, Delhi ... Appellant Versus State (Through Wild Life Inspector, Delhi) ... Respondent Criminal Appeal filed on 24.03.2009 JUDGMENT

1. This appeal U/s 374 Cr.PC have been filed by the appellant / convict through a counsel appointed by the Delhi Legal Services Authority against judgment dated 01.08.07 where under he was convicted U/s. 51 of Wild Life (Protection ) Act, 1972 for contravention of sections 9, 44 and 49 of the said Act and order on sentence dated 04.08.07 passed by Ld. ACMM, Delhi.

2 The facts in brief are that the appellant was Crl. Appeal No. 07/2009 Page 9 of 7 convicted U/s 51 of Wild Life (Protection ) Act, 1972 for violating the sections 9, 44 and 49 of the said Act by Learned Trial Court for unauthorizedly keeping endangered species of birds viz 100 Red Munias, 50 Black Headed Munias, 15 Rose Ring Parakeets and 50 Blossom Headed Parakeets by the impugned order he was sentenced to undergo rigorous imprisonment for 3 years and pay fine of Rs 25,000/- in default of payment of fine he is to further undergo simple imprisonment for a period of six months.

3 It has been contended that the appellant is a poor man and has not been keeping well. He is in jail since 04.01.07 and has no means to pay the amount of fine. The Trial Court did not consider the totality of sentences which the appellant will have to undergo if it is not to run concurrently. Even otherwise the awarded sentence is too severe despite there being no public witness. In the order of sentence the period of default sentence should also have been allowed to run concurrently with other cases. He thus urged for setting aside the sentence, waiver of fine and in the alternative the direction that the sentences of whatever nature shall run concurrently Crl. Appeal No. 07/2009 Page 10 of 7 with the sentences awarded to the appellant in other cases. 4 An application U/s 5 of Limitation Act has been filed for condoning the delay in filing the appeal on the ground that none of the family members of appellant have been pursuing his case. He therefore, had filed an application for being provided legal aid counsel for filing appeal and the present appeal has been filed on the said request being allowed. Since the delay is neither intentional nor deliberate, it is liable to be condoned.

6 I have heard Ms Sunita Vasudeva advocate appointed by Delhi Legal Services Authority on behalf of the appellant and Sh. I.U. H. Siddique, Ld. Addl. PP for the state Crl. Appeal No. 07/2009 Page 11 of 7 and carefully perused the file.

9. It has been argued that the appellant has been convicted in not less than 15 identical cases. In case the sentences were to run consecutively as per the normal rule U/s. 427 Cr.P.C , the appellant should not hope for coming out of jail alive. Ms Vasudeva has urged that taking into account the gravity and nature of offences proved against the appellant, benefit of discretion should have been extended to him by the Ld. Trial Court .

10. Power to direct subsequent sentence to run concurrently with prior sentences can be exercised at the appellate stage by the court of Appeal. Reliance in this behalf is placed upon 1987 Crl. LJ 371, 1991 Cal. Crl. LR 345 and AIR 1978 Delhi 138 . Delving into the facts of present case it transpires that in two of the initial cases substantive sentences of less than 1 year and fine of Rs. 1,000/- had been imposed on the appellant in cases no. 32/1 and 111/1 . It was in the subsequent matters that the minimum sentence prescribed for second of subsequent offences under the second proviso to section 51 of Wild Life (Protection) Act, 1972 had to be Crl. Appeal No. 07/2009 Page 13 of 7 awarded. There is an inkling that had the statutory rigor not been there, Ld. Trial Court would have awarded comparatively lighter sentence to the appellant. The minimum sentence in the peculiar cases of appellant has resulted in imposition of too severe substantive sentences on him which may not have been intention of legislatures. It is therefore, a fit case for exercise of discretion in favour of the appellant. The substantive sentence of rigorous imprisonment for 3 years, awarded to the appellant thus shall run concurrently with previous sentences awarded to him in other cases.

11. It has been held in AIR 1950 All. 625, 1990 Mad. LJ (Crl.) 361, AIR 1940 Lahore 388 and AIR 1926 Bombay 62 that a sentence of imprisonment in default is not a sentence of imprisonment holding the meaning of Section 31 Cr.P.C (corresponding to section 28 of Cr.P.C 1973) or section 427 Cr.P.C. Section 30 Cr.P.C read with section 40 and 67 of IPC prescribe the standards of imposition of fine for the court awarding sentence to convict and lay down the parameters of default sentence in lieu thereof. Judged on the same, the Crl. Appeal No. 07/2009 Page 14 of 7 default sentence awarded to the appellant cannot be said to be exaggerated.

13. An attested copy of this order be sent to Learned Trial court for being mentioned in the conviction warrant of the appellant .

14. Appeal file be consigned to record room. Announced in open court Sunil Kr. Aggarwal on 23th April, 2009 Addl. Sessions Judge (Central) Delhi Crl. Appeal No. 07/2009 Page 15 of 7 Crl. Appeal No. 07/2009 Page 16 of 7 IN THE COURT OF SH SUNIL KUMAR AGGARWAL:ASJ:DELHI Crl. Appeal No. 06/2009 Mohsim Ali S/o. Sh. Rehmat Ali R/o. Dagah Sheikh Kalimulla, Pigeon Market, Jama Masjid, Delhi ... Appellant Versus State (Through Wild Life Inspector, Delhi) ... Respondent Criminal Appeal filed on 24.03.2009 JUDGMENT

1. This appeal U/s 374 Cr.PC have been filed by the appellant / convict through a counsel appointed by the Delhi Legal Services Authority against judgment dated 13.04.07 where under he was convicted U/s. 51 of Wild Life (Protection ) Act, 1972 for contravention of sections 9, 44 and 49 of the said Act and order on sentence dated 17.04.07 passed by Ld. ACMM, Delhi.

2 The facts in brief are that the appellant was Crl. Appeal No. 07/2009 Page 17 of 7 convicted U/s 51 of Wild Life (Protection ) Act, 1972 for violating the sections 9, 44 and 49 of the said Act by Learned Trial Court for unauthorizedly keeping endangered species of birds viz 70 Red Munias, 58 Rose Ring Parakeets, 8 Blossom Headed Parakeets and 2 Alexandrine Parakeets by the impugned order he was sentenced to undergo rigorous imprisonment for 3 years and pay fine of Rs 25,000/- in default of payment of fine he is to further undergo simple imprisonment for a period of six months.

3 It has been contended that the appellant is a poor man and has not been keeping well. He is in jail since 04.01.07 and has no means to pay the amount of fine. The Trial Court did not consider the totality of sentences which the appellant will have to undergo if it is not to run concurrently. Even otherwise the awarded sentence is too severe despite there being no public witness. In the order of sentence the period of default sentence should also have been allowed to run concurrently with other cases. He thus urged for setting aside the sentence, waiver of fine and in the alternative the direction that the sentences of whatever nature shall run concurrently Crl. Appeal No. 07/2009 Page 18 of 7 with the sentences awarded to the appellant in other cases. 4 An application U/s 5 of Limitation Act has been filed for condoning the delay in filing the appeal on the ground that none of the family members of appellant have been pursuing his case. He therefore, had filed an application for being provided legal aid counsel for filing appeal and the present appeal has been filed on the said request being allowed. Since the delay is neither intentional nor deliberate, it is liable to be condoned.

10. Power to direct subsequent sentence to run concurrently with prior sentences can be exercised at the appellate stage by the court of Appeal. Reliance in this behalf is placed upon 1987 Crl. LJ 371, 1991 Cal. Crl. LR 345 and AIR 1978 Delhi 138 . Delving into the facts of present case it transpires that in two of the initial cases substantive sentences of less than 1 year and fine of Rs. 1,000/- had been imposed on the appellant in cases no. 32/1 and 111/1 . It was in the subsequent matters that the minimum sentence prescribed for second of subsequent offences under the second proviso to section 51 of Wild Life (Protection) Act, 1972 had to be Crl. Appeal No. 07/2009 Page 21 of 7 awarded. There is an inkling that had the statutory rigor not been there, Ld. Trial Court would have awarded comparatively lighter sentence to the appellant. The minimum sentence in the peculiar cases of appellant has resulted in imposition of too severe substantive sentences on him which may not have been intention of legislatures. It is therefore, a fit case for exercise of discretion in favour of the appellant. The substantive sentence of rigorous imprisonment for 3 years, awarded to the appellant thus shall run concurrently with previous sentences awarded to him in other cases.

11. It has been held in AIR 1950 All. 625, 1990 Mad. LJ (Crl.) 361, AIR 1940 Lahore 388 and AIR 1926 Bombay 62 that a sentence of imprisonment in default is not a sentence of imprisonment holding the meaning of Section 31 Cr.P.C (corresponding to section 28 of Cr.P.C 1973) or section 427 Cr.P.C. Section 30 Cr.P.C read with section 40 and 67 of IPC prescribe the standards of imposition of fine for the court awarding sentence to convict and lay down the parameters of default sentence in lieu thereof. Judged on the same, the Crl. Appeal No. 07/2009 Page 22 of 7 default sentence awarded to the appellant cannot be said to be exaggerated.

13. An attested copy of this order be sent to Learned Trial court for being mentioned in the conviction warrant of the appellant .

14. Appeal file be consigned to record room. Announced in open court Sunil Kr. Aggarwal on 23th April, 2009 Addl. Sessions Judge (Central) Delhi Crl. Appeal No. 07/2009 Page 23 of 7 IN THE COURT OF SH SUNIL KUMAR AGGARWAL:ASJ:DELHI Crl. Appeal No. 05/2009 Mohsim Ali S/o. Sh. Rehmat Ali R/o. Dagah Sheikh Kalimulla, Pigeon Market, Jama Masjid, Delhi ... Appellant Versus State (Through Wild Life Inspector, Delhi) ... Respondent Criminal Appeal filed on 24.03.2009 JUDGMENT

2 The facts in brief are that the appellant was Crl. Appeal No. 07/2009 Page 24 of 7 convicted U/s 51 of Wild Life (Protection ) Act, 1972 for violating the sections 9, 44 and 49 of the said Act by Learned Trial Court for unauthorizedly keeping endangered species of birds viz 200 red Munias, 3 Blossom headed Parakeets by the impugned order he was sentenced to undergo rigorous imprisonment for 3 years and pay fine of Rs 25,000/- in default of payment of fine he is to further undergo simple imprisonment for a period of six months.

3 It has been contended that the appellant is a poor man and has not been keeping well. He is in jail since 04.01.07 and has no means to pay the amount of fine. The Trial Court did not consider the totality of sentences which the appellant will have to undergo if it is not to run concurrently. Even otherwise the awarded sentence is too severe despite there being no public witness. In the order of sentence the period of default sentence should also have been allowed to run concurrently with other cases. He thus urged for setting aside the sentence, waiver of fine and in the alternative the direction that the sentences of whatever nature shall run concurrently with the sentences awarded to the appellant in other cases. Crl. Appeal No. 07/2009 Page 25 of 7 4 An application U/s 5 of Limitation Act has been filed for condoning the delay in filing the appeal on the ground that none of the family members of appellant have been pursuing his case. He therefore, had filed an application for being provided legal aid counsel for filing appeal and the present appeal has been filed on the said request being allowed. Since the delay is neither intentional nor deliberate, it is liable to be condoned.

6 I have heard Ms Sunita Vasudeva advocate appointed by Delhi Legal Services Authority on behalf of the appellant and Sh. I.U. H. Siddique, Ld. Addl. PP for the state and carefully perused the file.

Crl. Appeal No. 07/2009 Page 26 of 7

9. It has been argued that the appellant has been Crl. Appeal No. 07/2009 Page 27 of 7 convicted in not less than 15 identical cases. In case the sentences were to run consecutively as per the normal rule U/s. 427 Cr.P.C , the appellant should not hope for coming out of jail alive. Ms Vasudeva has urged that taking into account the gravity and nature of offences proved against the appellant, benefit of discretion should have been extended to him by the Ld. Trial Court .

10. Power to direct subsequent sentence to run concurrently with prior sentences can be exercised at the appellate stage by the court of Appeal. Reliance in this behalf is placed upon 1987 Crl. LJ 371, 1991 Cal. Crl. LR 345 and AIR 1978 Delhi 138 . Delving into the facts of present case it transpires that in two of the initial cases substantive sentences of less than 1 year and fine of Rs. 1,000/- had been imposed on the appellant in cases no. 32/1 and 111/1 . It was in the subsequent matters that the minimum sentence prescribed for second of subsequent offences under the second proviso to section 51 of Wild Life (Protection) Act, 1972 had to be awarded. There is an inkling that had the statutory rigor not Crl. Appeal No. 07/2009 Page 28 of 7 been there, Ld. Trial Court would have awarded comparatively lighter sentence to the appellant. The minimum sentence in the peculiar cases of appellant has resulted in imposition of too severe substantive sentences on him which may not have been intention of legislatures. It is therefore, a fit case for exercise of discretion in favour of the appellant. The substantive sentence of rigorous imprisonment for 3 years, awarded to the appellant thus shall run concurrently with previous sentences awarded to him in other cases.

13. An attested copy of this order be sent to Learned Trial court for being mentioned in the conviction warrant of the appellant .

14. Appeal file be consigned to record room. Announced in open court Sunil Kr. Aggarwal on 23th April, 2009 Addl. Sessions Judge (Central) Delhi Crl. Appeal No. 07/2009 Page 30 of 7

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Delhi District Court

Mohsim Ali vs State on 23 April, 2009