Supreme Court - Daily Orders
Nand Kishore vs State Of Haryana on 19 February, 2014
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 457 OF 2014
(Arising from SLP(Crl.) No.10534/2013)
Nand Kishore ..Appellant
versus
State of Haryana ..Respondent
O R D E R
Delay condoned.
Leave granted.
The first contention advanced at the hands of the learned counsel for the appellant emerges from Section 427 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ’Cr.P.C’). Section 427 of the Cr.P.C is being extracted hereunder:
"427.Sentence on offender already sentence 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 concurrently with such previous sentence."
A perusal of the aforesaid provision reveals that it is discretionary for a Court, to inter alia direct the running of a sentence imposed on a convict, at his second conviction, concurrently with the sentence which he is undergoing, on his first conviction.
Insofar as the instant aspect of the matter is concerned, it is relevant to indicate, that the appellant was tried in Case FIR No. 235 dated 15.10.1995 under Section 18 of the Narcotic Drugs and Psychotropic substances Act, 1985 (hereinafter referred to as the ’NDPS Act’), whereunder he was convicted by the Additional Sessions Judge, Sirsa on 17.09.1996, to suffer rigorous imprisonment for a period of ten years with fine of Rs.1,00,000/- (and in case of default in payment of fine, to undergo further rigorous imprisonment for two years).
In respect of Case FIR No. 75 dated 12.5.1991 under Section 18 of the NDPS Act, the appellant was convicted by Additional Sessions Judge, Bhiwani on 24.5.2001 to suffer a sentence of ten years rigorous imprisonment, with a fine of Rs.1,00,000/-( and in case of default in payment of fine, to undergo further rigorous imprisonment for two years).
The prayer made by the appellant is, that the second conviction and sentence vide order dated 24.5.2001, should be directed to run concurrently with the sentence which he was undergoing in furtherance of the first conviction in Case FIR No. 235 dated 15.10.1995.
It needs to be noticed, that the first conviction of the appellant was under the NDPS Act. Even, the second conviction was under the same enactment. Insofar as the punishment for a second offence under NDPS Act is concerned, it is necessary to make a reference to Section 31 thereof. Section 31 of the NDPS Act is, accordingly, being extracted hereunder:
"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."
A perusal of section 31 leaves no room for any doubt, that the intent of the legislature for a second conviction under the NDPS Act is, to an enhanced punishment. In case, the appellant is allowed the benefit of Section 427 of the Cr.P.C., there would be factually, a reduction in the sentence, which will have to be undergone by the appellant (consequent upon the two convictions, referred to hereinabove). Since it is not the intent of the legislature, to reduce the punishment for a second conviction under the NDPS Act, but to enhance the same, we are satisfied that the benefit of Section 427 of the Cr.P.C. cannot be extended to a second conviction under the provisions of the NDPS Act.
For the above reasons, the prayer made by the appellant, to extend the benefit of Section 427 of the Cr.P.C., by directing that the sentence inflicted upon the appellant by virtue of his second conviction, be ordered to run concurrently with the sentence imposed upon him in the first conviction, is rejected.
Insofar as the merits of the determination rendered in the impugned order is concerned, the effort of the learned counsel for the appellant was to establish, that the sample taken at the time of recovery, could not be deemed to have been identified, as the one delivered at the Forensic Science Laboratory, Madhuban. In order to substantiate the instant contention, learned counsel for the appellant invited our attention to the report dated 5.12.1995, depicting the forwarding of Memo No. 9291 dated 16.10.1995, wherein one sealed parcel (with reference to FIR No. 235 dated 15.10.1995 under Sections 17/18/61/85 of the NDPS Act) was delivered at the said laboratory on 19.10.1995. It was pointed out by the learned counsel for the appellant, that the above factual position did not tally with the statement of Dilbagh Singh recorded under Section 161 of the Cr.P.C., wherein he was confronted with his above statement, depicting that the sample was deposited with the Forensic Science Laboratory on 26.10.1995. Besides the above, in his statement before the trial Court, Dilbagh Singh is shown to have indicated, that he had deposited the sample with the Forensic Science Laboratory on 18.10.1995.
It is, therefore, the contention of the learned counsel for the appellant that in the report of the Forensic Science Laboratory, the deposit of the sample is shown to have been made on 19.10.1995; in his statement before the trial Court, Dilbagh Singh claims to have deposited the sample on 18.10.1995; whereas, in his statement under Section 161 of the Cr.P.C., he had stated that he had deposited the said sample with the Forensic Science Laboratory on 26.10.1995.
We have considered the submission, as has been advanced by the learned counsel for the appellant. The sole purpose for advancing the above submission is, to demonstrate that the sample tested by the Forensic Science Laboratory, Madhuban, is not the one which was taken at the time of recovery (alleged in the first information report No. 235 dated 15.10.1995). Even though, there is no doubt, that there is a discrepancy in respect of the date of deposit of the sample under reference, we are satisfied that the same cannot be used by the appellant for the purpose sought, namely, to demonstrate that the sample which was taken was different from the sample which was tested by the Forensic Science Laboratory, Madhuban. Insofar as the instant aspect of the matter is concerned, the only vital fact to be taken into consideration was whether the seal affixed on the sample at the time of recovery, was the same as the one, which was affixed on the sample delivered to the Forensic Science Laboratory. It is not the case of the appellant before this Court, that the seal was different. Additionally, in his statement before the trial Court, Dilbagh Singh categorically affirmed, that during the period the sample remained with him the seal thereon remained untampered. Based on the aforesaid consideration, we are satisfied, that the sole contention raised by the learned counsel for the appellant, to demonstrate that the sample taken from the appellant at the time of recovery, was different from the sample which was submitted by the police with the Forensic Science Laboratory, stands unsubstantiated. We, therefore, find no merit in the above contention.
For the reasons recorded above, we find no merit in the instant appeal, and the same is, accordingly, dismissed.
......................J.
[JAGDISH SINGH KHEHAR]
NEW DELHI; ......................J.
FEBRUARY 19, 2014. [S.A. BOBDE]
ITEM NO.2 COURT NO.13 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl) No(s).10534/2013 (From the judgement and order dated 06/04/2005 in CRA No.982/1997, of The HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH) NAND KISHORE Petitioner(s) VERSUS STATE OF HARYANA Respondent(s) (With appln(s) for c/delay in refiling SLP,c/delay in filing SLP) Date: 19/02/2014 This Petition was called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE JAGDISH SINGH KHEHAR HON’BLE MR. JUSTICE S.A. BOBDE For Petitioner(s) Mr. Suman Kapoor, Adv.
Ms. Isha Shah, Adv.
for Mr. Anil Kumar Tandale,AOR(Not present) For Respondent(s) Mr. Manjit Singh, AAG Mr. Tarjeet Singh, Adv.
Ms. Vivekta Singh, Adv.
Mr. Nupur Chaudhary, Adv.
for Mr. Kamal Mohan Gupta,AOR(Not present) UPON hearing counsel the Court made the following O R D E R Delay condoned.
Leave granted.
The appeal is dismissed in terms of the signed order.
|(Parveen Kr.Chawla) | |(Phoolan Wati Arora) |
|Court Master | |Assistant Registrar |
| | | |
[signed order is placed on the file]