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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

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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

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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

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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

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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

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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